Motions filed by State Auditor Kathy McGuiness’s attorney Oct. 14 ask Delaware Superior Court to sanction Attorney General Kathleen Jennings for comments she made during the Oct. 11 press conference announcing a grand jury indictment against McGuiness, and also that taxpayers cover costs for McGuiness’s lead attorney and all attorneys’ fees.
“The motion is asking for the public to pay $550 per hour for her lead attorney, in addition to hourly fees for associate attorneys and paralegals,” said Mat Marshall, spokesman for the Department of Justice. “It is sadly consistent with the defendant’s charged conduct that she would demand the taxpayers spend extra money when the law clearly commands a less profligate alternative.”
In addition to $550 an hour for McGuiness’s lead attorney, the motion asks the court to approve billing of $425 an hour for an attorney associate and $325 an hour for paralegal work.
McGuiness’s attorney Steven P. Wood, who has represented her since September, would not specifically say whether the request is for the state to pay $550 an hour for McGuiness’s attorney’s fees. Normally a public official would be represented by an attorney in the Department of Justice, but since there is a conflict of interest in this case, the motion asks the court to allow for representation by a private attorney.
Delaware Supreme Court Rule 68 states that a public officer or employee represented by counsel shall be responsible for such apportioned fees and expenses unless the appointing court, for good cause shown, shall otherwise order.
“I don’t think that it’s appropriate for me to comment beyond what the motion says,” Wood said.
Code of conduct violation
A 13-page motion asks a Superior Court judge to find Jennings violated the Delaware Lawyers’ Professional Conduct Rules when she answered a question as to whether McGuiness had any response or reaction to her indictment 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.
“Look, I have not spoken to the defendant and that has been deliberate,” Jennings said. “I can tell you that the Division of Civil Rights and Public Trust has reached out to the auditor on several occasions, and she has declined to speak with them.”
According to the motion filed by Wood, Jennings’ comments are a violation because the lawyer’s code prohibits statements by the prosecution that could prejudice an adjudicative proceeding.
“The attorney general’s comment concerning the defendant’s choice to follow the advice of counsel and exercise her constitutional rights to silence and against self-incrimination was (1) made at a press conference organized at and by the attorney general’s office; and (2) made to members of the electronic and print media who the attorney general’s staff specifically invited to the event. Clearly, the attorney general and her staff knew, or should have known, that her comments would be disseminated by means of public communication.”
The motion also asks the judge to sanction the attorney general and her staff against making any extrajudicial comments pertaining to McGuiness’s court proceedings.
“The court has not granted either motion, and we intend to file responses to both,” Marshall said.
McGuiness pleads not guilty
McGuiness pleaded not guilty to all charges during a court appearance in New Castle County Superior Court Oct. 12. If found guilty, she could face 13 years in prison. Bail was set at $50,000 unsecured, which includes no contact with former Office of the Auditor of Accounts employees, and no discussion of the ongoing criminal investigation with current OAOA employees.
In a statement released by her attorney, McGuiness said she intends to continue serving as state auditor – a position she was elected to as a Democrat in 2018 – despite calls for her removal by the Democratic Party and Democratic leadership asking her to take a leave of absence.
Wood also addressed the charges that include she hired her teenage daughter and a high school friend of her daughter’s for work at the auditor's office, and that she structured payments to a consulting group to fall below the state-required threshold for oversight.
“The grand jury’s indictment, like all grand jury indictments, was based upon a one-sided presentation from witnesses and documents selected by the attorney general. The indictment is full of misleading statements and half-truths,” Wood said.
Delaware law does not prohibit family members from hiring family members, he said, and there have been many instances throughout state government, including the Attorney General’s Office.
Wood said McGuiness’s daughter did work remotely for the OAOA, and the indictment’s assumption that the only way to work remotely is through the state’s email network is false.
As for the contract with My Campaign Group, Wood said, McGuiness has, from time to time, hired outside contractors to perform various professional, policy-related and communications functions for the auditor’s office.
“Unlike the Attorney General’s Office, which has several full-time employees that assist with press and public relations, the auditor’s office does not have a full-time employee to perform those functions,” Wood said. “Furthermore, unlike many other state agencies, the auditor’s budget did not provide for a full-time policy development staffer until recently. For these reasons, Ms. McGuiness hired an outside contractor to assist in those tasks.”
Wood said My Campaign Group has performed policy development services for other elected officials in Delaware, including a former governor, and there is nothing unlawful about hiring a former campaign consultant to perform legitimate tasks related to government service. The indictment fails to mention that the consultant has provided policy advice for elected officials across the U.S. in the past and continues to do so today, he said.
The owner of My Campaign Group, Christie Gross, did not respond to questions about how many state contracts her company has held over the years, and how much money her company has brought in from those contracts.
As for the charge of witness intimidation, Wood said it is pure fiction. The indictment states McGuiness requested access to employee emails so she could monitor them. “[It] is clearly the result of fanciful tales spun by former employees with an axe to grind,” he said.
“Ms. McGuiness will continue to work hard on behalf of Delaware’s taxpayers and intends to focus on the job that she was elected to do,” Wood said. “She will have no further comment on this matter. When the whole story is finally heard, the facts will speak for themselves.”
A case review scheduled for Oct. 18 in New Castle County Superior Court was postponed to a date not yet determined as of the Cape Gazette’s press time.