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Amid auditor corruption case, lawmakers enlist ex-justice

November 9, 2021 GMT

DOVER, Del. (AP) — Lawmakers have enlisted the help of a retired Delaware Supreme Court justice as they explore their options in responding to public corruption charges against the state auditor.

Legislative leaders announced Tuesday that Randy Holland, the longest-serving justice in Delaware history and an expert on the state constitution, has agreed to help guide them as they develop findings and recommendations for the General Assembly regarding the criminal charges against Auditor Kathy McGuiness.

In making the announcement, lawmakers canceled a Tuesday afternoon Senate session to consider a resolution asking Delaware’s Supreme Court for an advisory opinion on a provision in Delaware’s constitution regarding the removal of officials from public office.

“The provisions of the Delaware constitution related to removing an elected official from office have serious legal ramifications,” Holland said in a statement issued by the General Assembly. “I understand the gravity of what is being asked of me, and I am prepared to work impartially with the legislature to help forge a better understanding of case law, and the legislative record so the General Assembly has the information needed to make an informed decision about its path forward.”

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McGuiness, who is responsible for rooting out government fraud, waste and abuse, was indicted on Oct. 11 on felony counts of theft and witness intimidation, and misdemeanor charges of official misconduct, conflict of interest and noncompliance with state procurement laws.

McGuiness, 58, has maintained that she is innocent and has rejected calls by fellow Democrats to resign or take a leave of absence pending resolution of the criminal case.

But Democrats who control both chambers of the General Assembly have been reluctant to exercise their powers under a provision in the state constitution regarding the removal of officials from public office. That provision — which has never been used — states that the governor may “for any reasonable cause” remove any officer, other than the lieutenant governor or a member of the General Assembly, if two-thirds of the members of both the House and Senate ask him to do so.

The provision provides little other guidance, however, other than that the cause of removal must be entered in legislative journals, and that the person being targeted must be notified of alleged cause for his or her removal, at least 10 days before either chamber of the General Assembly acts.

Holland also will assist lawmakers in researching a separate provision in the constitution regarding the impeachment powers of the General Assembly. The findings are due before lawmakers return to session on Jan. 11, months before any trial in the criminal case against McGuiness is expected to begin.

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The decision to seek Holland’s help came after the Senate voted along party lines last week to approve a resolution asking the Delaware Supreme Court for an advisory opinion on the language in the constitutional provision.

Among other things, resolution asked whether “reasonable cause” could include an indictment, and whether the authority to remove a public official implies that there also is authority to take a lesser action, such as suspension. They also wanted to know whether lawmakers would be required to conduct a hearing by one or both chambers before voting on asking the governor to remove a public official, and whether that official could attend any such hearing and offer evidence and testimony in his or her defense.

The Senate plan was thwarted when the House passed its own version of the resolution adding language asking the Supreme Court to provide answers by Dec. 17. The House resolution also called for the judiciary committees of both chambers meet on or before that date to determine the process to be used to decide if reasonable cause exists for removing a public official.

Senators, who had left Legislative Hall after approving a redistricting bill, were not around to consider the House resolution last week. They scheduled Tuesday’s special session to consider the measure before announcing Tuesday morning that no session would be held and that Holland would instead help guide lawmakers’ decision-making.

“No one knows more about the Delaware constitution and its interpretation than Justice Holland and I have full faith in his ability to provide us with the best possible legal analysis and advice when it comes to this unprecedented issue,” House Speaker Pete Schwartzkopf said in a statement.