Legislative leadership to McGuiness: Take leave of absence

Statements follow Democratic Party call for removal
October 15, 2021

Democratic legislative leadership from both the House and Senate called on State Auditor Kathleen McGuiness, a fellow Democrat, to take a leave of absence following her grand jury indictment on felony theft and official misconduct charges.

In a statement released by Speaker of the House Rep. Pete Schwartzkopf, D-Rehoboth Beach, Majority Leader Rep. Valerie Longhurst, D-Bear, and Majority Whip Rep. Larry Mitchell, D-Elsmere, the three refrained from speculating on a course of action since the investigation into McGuiness’s wrongdoing is ongoing.

“We do not wish to complicate, jeopardize or otherwise interfere with the investigatory process or the criminal proceedings that have been initiated. We will closely follow developments in this case and are keeping all constitutional options open and available,” they wrote.

McGuiness, who was elected state auditor in 2018, was indicted Oct. 11 on charges of felony theft, felony witness intimidation, conflict of interest in violation of the State of Delaware official code of conduct, noncompliance with procurement law by structuring state payments, and official misconduct. She faces a total of 13 years in prison if convicted.

McGuiness pleaded innocent to all charges Oct. 12 and has said she intends to continue working.

“We are concerned that the ongoing investigation and her legal defense will make it increasingly difficult for the auditor to effectively run an agency that is the watchdog of public funds. We believe it would be in the best interests of the auditor, her office and the residents of Delaware that she voluntarily take a leave of absence during these legal proceedings,” they wrote.

Senate Democratic leadership echoed those concerns.

“While we firmly believe an accused person deserves their day in court, we also believe that the scale of the charges both shatters the public's confidence in Auditor McGuiness' ability to serve as a watchdog of government finances, and prevents her from meeting the duties and obligations of her office,” said Senate President Pro Tempore Dave Sokola, D-Newark, Majority Leader Sen. Bryan Townsend, D-Newark, and Majority Whip Sen. Elizabeth Lockman, D-Wilmington. “Today, we urge Auditor McGuiness to place the public’s interests ahead of her own. At a minimum, she should take a voluntary leave of absence while the Department of Justice’s investigation is ongoing and while the Delaware State Senate considers its own constitutional obligations in this matter.” 

The leadership statements followed a more forceful statement issued by the Democratic Party Oct. 12 calling for McGuiness to step down.

"Whether it's by her own resignation, impeachment or other appropriate avenues of removal, we believe that she should no longer hold that office. She has breached the public's trust and should not continue to serve in this role," said Sarah Fulton, political and communications director for the Delaware Democratic Party. 

The Oct. 12 statement sent by the state Democratic Party followed one sent on Oct. 11, the day McGuiness was indicted by a grand jury on charges of felony theft, witness intimidation and misconduct while running the auditor’s office. McGuiness pleaded not guilty to all charges on Oct. 12.

In the Oct. 11 statement, Delaware Democratic Party Chair Betsy Maron said McGuiness is not fit to continue in her role as state auditor. 

“When Delaware Democrats supported Kathy McGuiness, they did so on the promise that she would serve as a watchdog to prevent waste and abuse, and uphold the highest ethical standard of transparency and fiscal responsibility,” she said. “To see that she broke the public’s trust while executing her official duties is disheartening and downright embarrassing to our party. Based on today’s grand jury indictment, it is clear that Kathy McGuiness cannot be trusted to do her job in accordance with the law. It would be a disservice to every Delawarean for her to continue in her role.”

Jane Brady, who was attorney general in the 1990s and now heads Delaware’s Republican Party, said McGuiness’s breach of trust is the latest in a string of misconduct by elected Democrats.

“Ms. McGuiness is the fourth Democrat in the last six or eight months who have found themselves in trouble with the law. It’s ridiculous," Brady said. “Ms. McGuiness’ indictment comes after Rep. Gerald Brady, D-Wilmington, used a racial slur in a June 27 email. Sen. Darius Brown, D-Wilmington, was arrested on two misdemeanor charges related to an alleged domestic dispute in late May. Rep. Andria Bennett, D-Dover, was charged with third-degree assault in 2020; however, the charge was dropped by the victim in May.”

Before her election as state auditor, McGuiness had served as Rehoboth Beach commissioner from 2003-13 and 2014-18. As commissioner, she often butted heads with then-Mayor Sam Cooper over the financing and construction process when City Hall was rebuilt in 2016-17; voter anger over cost overruns at City Hall was believed to be a factor in Cooper’s defeat in August 2017 after 27 years as mayor. That same year, McGuiness was the top vote-getter overall to retain her commissioner seat. A year after that, she ran and won her race for auditor.

When the news of McGuiness’ indictment came down, Cooper said, “I understand her wheeling and dealing, but I thought she was smarter than to be caught doing something like this. It’s pretty brazen.”

Others were more reticent or said nothing.

Through city spokesperson Lynne Coan, Mayor Stan Mills declined to comment on the indictment because it's a state matter. However, Coan said, the city was not contacted by the AG's office regarding the investigation.

Lewes Mayor Ted Becker has supported McGuiness and her Gray Fox initiative to provide transparency about federal dollars flowing into the state through the American Rescue Plan Act. He stood behind her when she announced the program in Dewey Beach over the summer, and he also attended a town hall meeting about the initiative that McGuiness held in September at the Rehoboth Beach Convention Center.

“I’m really not sure it would be appropriate for me to comment here with the charges just having been laid out,” he said. “Obviously Kathy laid out the Gray Fox program, which the city of Lewes is participating in, and that program, as we checked it out, looked like it would be a valuable resource to us in the City of Lewes as we look to account for the expenditures of the ARPA money.”

Sen. Ernie Lopez, R-Lewes, who announced in July that he would not seek re-election to his 6th District Senate seat in 2022, could not be reached for comment.

Rep. Steve Smyk, R-Milton, only said that the case was in the hands of the attorney general, and the legislative branch had no information on it.

Democrats eye next steps

In the Democratic Party’s statement, Fulton said the party will continue to monitor the situation, which is rare, with little precedent on what the next steps are.

Based on this portion of the Delaware Code, we understand that if she does not resign, it would fall to the Legislature to decide whether or not to pursue removal through a House impeachment vote and Senate trial,” she said.

Under Delaware Code, Article VI outlines the impeachment process. The governor and all other civil officers are liable to impeachment for treason, bribery, or any high crime or misdemeanor in office. 

Judgment in such cases shall not extend further than to removal from office, and disqualification to hold any office of honor, trust or profit, under this state; but the party convicted shall, nevertheless, be subject to indictment, trial, judgment and punishment according to law, the code says.

The code states that the House of Representatives has the sole power of impeaching, but two-thirds of all members must concur in an impeachment. If so, a trial would be held in the Senate by all sitting senators. 

“No person shall be convicted without the concurrence of two-thirds of all the senators,” code states.

Reporters Ryan Mavity, Nick Roth and Chris Flood contributed to this story.

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