General Assembly seeks guidance on removing elected officials

Senate will reconvene Nov. 9 to consider resolution
November 5, 2021

The Senate will reconvene for a special session Tuesday, Nov. 9, to consider a resolution asking the Delaware Supreme Court for guidance on how to remove an elected official from office.

Both the Senate and House passed resolutions Nov. 1 asking the Delaware Supreme Court for guidance. However, both chambers adjourned before acting on either resolution, leaving the matter in limbo. The Senate will consider House Concurrent Resolution 42, which passed the House 25-8 with six not voting and two absent. No Republican voted for the resolution in the House.

HCR 42 is similar to the Senate resolution that was passed 14-7 along party lines, but it includes dates for a response and committee meetings. 

The House resolution asks the Supreme Court to answer the General Assembly by Dec. 17, and states that the judiciary committees for both the House and Senate should meet jointly by that date. During the joint meeting, members would be asked to decide if reasonable cause exists for the removal of an elected official, go over the procedural due process for removal, and set a hearing date for removal of an elected official with proper notice.

In the resolution, legislators say they don’t believe the General Assembly has ever addressed the governor for the removal of an elected official under the Delaware Constitution.

Article III, Section 13 of the Delaware Constitution for removal of officers by the governor says:

“The governor may for any reasonable cause remove any officer, except the lieutenant-governor and members of the General Assembly, upon the address of two-thirds of all the members elected to each House of the General Assembly. Whenever the General Assembly shall so address the governor, the cause of removal shall be entered on the journals of each House. The person against whom the General Assembly may be about to proceed shall receive notice thereof, accompanied with the cause alleged for his or her removal, at least 10 days before the day on which either House of the General Assembly shall act thereon.”

Though neither resolution openly states the removal refers to State Auditor Kathy McGuiness, discussion in the Senate referred to her grand jury indictment on felony charges related to official misconduct.

Republicans said they opposed the resolution because she is assumed innocent until proven guilty. “It’s a road we’re going down that’s very dangerous,” said Minority Whip Sen. Brian Pettyjohn, R-Georgetown.

Sen. Dave Lawson, R-Marydel, questioned whether the rules would apply to all senators who have been criminally charged, referring to Sen. Darius Brown, D-Wilmington, who was charged in May with misdemeanor offensive touching and disorderly conduct. Police say Brown punched a woman in the face while the two were in a restaurant, and then threw a glass of water at the wall.

Senate President Pro Tempore Dave Sokola, D-Newark, said the cases are different because one involves felonies and the other misdemeanors. Lawson also pointed out that one case involves nonviolent charges, while the other involves violent ones. 

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