Supreme Court opines on removal of elected officials

Legislature has yet to take action
March 18, 2022

A Supreme Court opinion issued March 1 gives some guidance to the General Assembly on removing an elected official from office; however, legislators have yet to take action.

“We don’t have any comment at this time. We will comment if and when the General Assembly takes any steps regarding this situation,” said Scott Goss, communications director for the Senate Majority Caucus.

House Democrats did not respond when asked whether any action was pending following the Supreme Court’s opinion.

The 27-page opinion answers five questions legislative leadership posed following the indictment of State Auditor Kathleen McGuiness in connection on charges of felony theft and misuse of her office. She has not stepped down despite calls from Democratic Party officials, prompting legislative leadership to examine Section 13 of the Delaware Constitution, which addresses removing an elected official from office.

Questions included whether an indictment would satisfy reasonable cause for removal of a public official, and how a hearing process would work.

Justices opined that a hearing is required and the defendant must have 10 days’ notice in order to prepare a defense, if they choose. A hearing can be held in one of the legislative bodies, or there could be a joint hearing, according to the opinion. Following the hearing, both the House and Senate would vote on a bill to address the governor in regard to removing an elected official, and if it passes each house by a two-thirds vote, the bill would be presented to the governor, the opinion states.

“The governor may – not must – remove any public officer for reasonable cause if the General Assembly presents a bill of address to the governor,” the opinion states.

The opinion is clear that the governor cannot give the elected official a lesser action, such as a suspension, and also states that there is no appeal from the governor’s decision.

“Section 13 has no mechanism for a direct appeal of the governor’s decision to remove an official upon a bill of address. We were not asked to explore whether there are other avenues for relief through the courts,” the opinion concluded.

Subscribe to the Daily Newsletter