Two separate resolutions passed in the House and Senate requesting the Delaware Supreme Court issue an advisory opinion on the General Assembly’s authority to remove indicted State Auditor Kathy McGuiness.
The auditor was indicted in October on a slew of felony and misdemeanor corruption charges alleging nepotism, fraud, theft and witness intimidation. She has pled not guilty to all charges.
Neither resolution will move forward at the moment, though, because the House Concurrent Resolution was introduced after the Senate had already gone home for the day and the House didn’t bring the Senate Concurrent Resolution to a vote.
Both were introduced during a special session to pass redistricting legislation.
Article III, Section 13 of the Delaware Constitution says that the governor may “for any reasonable cause” remove any officer of the state government, except the Lieutenant-Governor and members of the General Assembly, upon the request of two-thirds of all the members elected to the House and Senate.
What happened in the Senate
Senate Concurrent Resolution 63 states that the General Assembly does not believe it has ever made such a request to the governor and therefore seeks an opinion from the court to determine what constitutes “reasonable cause,” among other things, including:
- Does the authority under Section 13 to remove a public official implicitly include the authority to take a lesser action, such as suspension of that public official?
- If Section 13 does implicitly include the authority to take a lesser action, must the General Assembly address the Governor on the lesser action or can the Governor choose to take a lesser action than that addressed to the Governor?
- Does the application of Section 13 require a hearing on the matter prior to a vote in either House to address the Governor to remove an officer?
- If the application of Section 13 requires a hearing, must each House hold a hearing prior to its respective vote to address the Governor, or does a hearing in the first House satisfy the requirement?
- If the application of Section 13 requires a hearing in each House, would a joint hearing satisfy the requirement?
- If the application of Section 13 requires a hearing, what are the elements that must be satisfied? For example, must the person against whom each House seeks to proceed be provided the opportunity to attend the hearing, to be represented at the hearing by counsel, to testify at the hearing, to call witnesses, or to introduce evidence at the hearing?
- Does Section 13 require a 10-day notice for only the first House to take action, or are separate notices required for each House? If Section 13 requires separate 10-day notices for each House’s action, may those notices be issued concurrently, or must the second House issue its notice only after the first House has acted pursuant to its respective notice?
- Is there a mechanism for an appeal of the decision by the Governor to remove a public officer under Section 13?
Senate President Pro Tempore Dave Sokola, D-Newark, said that the General Assembly has been faced with significant questions over its constitutional obligations under the relevant section of the constitution.
“Some of these questions have come from the public and some have come from our own members, all of whom are rightly concerned about ethics and accountability in public service,” Sokola said. “I want to be clear: the Senate takes seriously its oversight role and responsibility and we also recognize the unprecedented nature of what lies before us given the charges facing our State Auditor.”
He argued that in order to fulfill their duty to protect public trust in state government, senators must first share a fundamental understanding of their roles and responsibilities as defined within the Delaware Constitution.
Senate Minority Whip, Bryan Pettyjohn, R-Georgetown, argued that taking any action against McGuiness could set a dangerous precedent. He later voted against the resolution.
“We took an oath when we took our offices,” Pettyjohn said. “Part of that oath is to defend the constitution that we have both the United States and the state of Delaware. Part of that is the presumption of innocence and if we are looking to take action that is going to possibly — depending on the answer that we get from our friends over at the Supreme Court — overturn the decision that the voters made in the state, that’s something that we have to tread very, very lightly upon.”
He pointed out that members of the Senate have faced or are currently facing criminal charges and noted that in those cases the General Assembly has waited for criminal proceedings to conclude before taking action.
Sen. Dave Lawson, R-Felton, took Pettyjohn’s argument a step further.
“We have one person who has recently been indicted and we have another person who is pending court who has already been charged,” Lawson said, referring to Sen. Darius Brown, D-Edgemoor, who is awaiting trial on domestic assault charges. “Are both of those cases going be treated equally when the decision from the court comes back?”
Sokola shot back saying Lawson’s comparison was inaccurate and unfair.
“There is a big difference,” Sokola said. “One has been indicted by a grand jury, one has not. The other thing is there are felonies involved in one case and not in the other — and I think the responsible thing to do would be to consider what happens with one, the response from our state Supreme Court and the other, with the response from the court of jurisdiction.”
Sen. Bryan Townsend, D-Brookside, intervened and said that Lawson’s comments weren’t relevant to the resolution being discussed, as it specifically addresses Article III, Section 13 of the Delaware Constitution.
Lawson managed to throw in one more jab before yielding the floor.
“One is a non-violent crime. The other is a violent crime,” he said.
Sokola said he didn’t think Lawson’s comments were appropriate before asking for a roll call. All seven Republicans voted against the measure. It passed with the support of all 14 Democrats.
What happened in the House
When the House of Representatives convened over an hour after the scheduled start time, they swiftly passed redistricting legislation with no debate on the bill.
They then went into recess for nearly another hour. Upon their return, they introduced a separate measure, House Concurrent Resolution 42, sponsored by Rep. Sean Lynn, D-Dover.
By that time, though, Reps. Rich Collins, R-Millsboro and Jesse Vanderwende, R-Bridgeville, had already gone home for the day, effectively refusing to vote on the measure.
HCR 42 asks for the same provisions as the Senate Concurrent Resolution but goes a step further. It also calls for the Judiciary Committees of both the House of Representatives and Senate to meet jointly to determine:
- The process to be used by the House of Representatives and the Senate pursuant to Article III, § 13 for the General Assembly to decide if reasonable cause exists for the removal of an elected official.
- The procedural due process the House of Representatives and the Senate must afford to an elected official subject to Article III, § 13.
- A suitable date for a hearing for removal of any elected official subject to Article III, § 13 proceedings, which shall include the issuance of proper notice.
“What this resolution does is sets forth a number of questions that this body would like to see answered from the Delaware Supreme Court,” Lynn said while introducing HCR 42.
Lynn could not be reached for comment Tuesday.
“However, in the instance that the Delaware Supreme Court is unable or unwilling to provide such an advisory opinion or in the alternative that they do provide such an advisory opinion, it sets forth the process by which this body imbues the respective Judiciary Committees to meet jointly and to determine the process and the due process to be afforded of state officeholders pursuant to Article III, Section 13 of the Delaware Constitution,” he said.
House Minority Leader, Danny Short, R-Seaford, said the Democrats’ late introduction of the resolution stunk of inconsistency, lack of transparency and lack of public awareness of what’s going on in Legislative Hall.
“Our impression was today we would come here and deal with one thing, called redistricting,” Short said. “Now we’ve dealt with something that started in the Senate, who coincidentally has gone home — is not in the building.”
He said Democrats in the House of Representatives make rules only to change them without notice and do whatever they want. He asked for a roll call vote on the resolution and informed his Democratic counterparts that Republicans would either be voting ‘no’ or not voting.
The resolution passed with 25 in favor, 8 against, 6 not voting and 2 absent. A roll call of the vote can be seen here.
Because the House passed a separate resolution, the measure will have to go back before the Senate before it can be finalized.
But because the Senate was only convened on Nov. 1 for a one-day special session and doesn’t return until Jan. 11, it’s unclear if or when HCR 42 will be voted on.
And because the House did not vote on the Senate’s resolution, that measure will also be effectively tabled.
It is unclear whether either chamber has any plans to return for another special session before Jan. 11.
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