Resolution officially requests advice on removing public officials

Delaware Supreme Court asked to give opinion
January 20, 2022

After meeting with a former justice for two months, legislative leaders decided to pass a resolution asking the Delaware Supreme Court for an advisory opinion on how to remove a public official from office.

Senate Concurrent Resolution 63 passed the House Jan. 13 by a voice vote, more than two months after the Senate approved the measure 14-7. Both bodies met in November to approve legislative district maps, and during that time, each also introduced and passed its own separate resolutions. 

A special meeting had been scheduled for Nov. 9 so the Senate could vote on the House resolution, but it was canceled by legislative leaders in order to get advice from former Supreme Court Justice Randy Holland.

That advice ended up being to recommend the General Assembly pass a resolution seeking an advisory opinion from the Delaware Supreme Court, resulting in SCR 63’s passage.

The crux of the matter is the Oct. 11 indictment of State Auditor Kathy McGuiness in connection with official misconduct, resulting in two felony and three misdemeanor charges.

McGuiness pleaded innocent to the charges and has refused to step down from office despite repeated calls from the Democratic Party. Democratic leadership has asked her to take a leave of absence, but McGuiness continues to conduct work as state auditor. She recently circulated an email stating she will run for re-election.

“Recognizing the potential conflicts of interest that will likely arise if the auditor continues to actively serve in her elected financial watchdog role while facing criminal charges related to alleged abuses of those powers, leadership of both the House and Senate have repeatedly called for Auditor McGuiness to take a voluntary leave of absence while her legal case is pending,” said Sen. Kyle Evans Gay, D-Heatherbrooke, who chairs the Senate Judiciary Committee.

In voting against the resolution in November, Senate Republicans questioned whether the process of removing a public official from office would apply to Sen. Darius Brown, D-Wilmington, who at the time had been charged with offensive touching and disorderly conduct. He was found not guilty of those charges following a Jan. 6 jury trial, but the Senate Ethics Committee is expected to meet regarding a verbal altercation Brown reportedly had with Rep. Melissa Minor-Brown, D-Pennwood. A date for the ethics committee meeting has not been set.

While the Legislature awaits the Delaware Supreme Court’s advisory opinion, the chairs and vice chairs of the House and Senate judiciary committees will consult with Holland to work out a process for how any potential proceedings would be conducted.

Rep. Sean Lynn, D-Dover, said the resolution seeks an opinion on five key points of constitutional language.

“Questions have been raised about Article III, Section 13, a three-sentence, never-before-used constitutional provision that permits the General Assembly to petition the governor to remove an elected official from office ‘for any reasonable cause,’” he said. 

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