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Will Delaware lawmakers remove indicted auditor from office? There's uncertainty


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Will state lawmakers look to remove indicted Auditor Kathy McGuiness from office? It's complicated.

Officials disagree over how exactly the process should play out for what would be, for all 62 members of the General Assembly, an unprecedented attempt at removing a statewide elected official from office after she has refused to step down.

Leadership in both chambers are hesitant to act, citing confusion over the three-sentence law in the state constitution that sanctions the process.

House Speaker Pete Schwartzkopf, a Democrat from Rehoboth Beach, has personal ties to McGuiness dating back 20 years. The top-ranking lawmaker gets to decide whether his 41 members would even be allowed to debate the matter.

And as McGuiness' attorney claims that lawmakers don't have enough cause to remove her, the Senate plans to ask the courts for advice on the law to find out whether her attorney is wrong.

McGuiness was indicted earlier this month on two felony charges and three public-corruption misdemeanors. She is charged with breaking nepotism rules in hiring her daughter to a position in the auditor’s office, rigging public contracts to avoid fiscal oversight, and discriminating against and spying on those who questioned her.

McGuiness has pleaded not guilty.

More: A close look at the charges against Delaware's state auditor, will they stick?

Will the General Assembly remove McGuiness from office?

Only a handful of lawmakers have called on McGuiness to resign, and even fewer are trying to instigate a removal.

Two lawmakers — Rep. Madinah Wilson-Anton, a Democrat from Newark, and Rep. Michael Smith, a Republican from Pike Creek — sent a letter last Friday requesting lawmakers file and vote on a resolution that would ask Gov. John Carney to remove McGuiness from office.

No other lawmakers signed the letter, and Wilson-Anton said on Thursday — nearly a week after proposing it — that the resolution did not have the votes.

According to the state constitution, the General Assembly can petition the governor to remove McGuiness. If two-thirds of members of both chambers petition, the governor may remove an officer for "any reasonable cause."

The letter asked that lawmakers vote on the resolution Nov. 1 during an already-scheduled special session to redraw district maps with 2020 census data. Lawmakers' regular session spans from January to June.

"We have a responsibility to our constituents, and we respectfully request this resolution be heard in the interest of public trust," reads the letter addressed to Gov. John Carney, House and Senate leadership, McGuiness, and her attorney Steve Wood.

More: What's next for Delaware Auditor Kathy McGuiness? Here's what we know

What happens next?

The particular resolution proposed appears to be dead on arrival because leadership believes the letter may not fill the constitutional requirement that McGuiness be given a 10-day notice before lawmakers act to remove her.

"The House is not in session and, as of now, no resolution has been filed," said House spokesman Drew Volturo in an email. "The attorneys' research on this is continuing."

In response, Wilson-Anton said, "I disagree with their assessment."

Instead of supporting the House resolution, senators plan to pass their own resolution on Nov. 1 asking the Delaware Supreme Court for an advisory opinion on the law to "ensure a removal process complies with constitutional requirements," according to Senate Majority Leader Bryan Townsend, a Democrat from Newark and the second-highest-ranking member in the chamber.

Because lawmakers have never petitioned the governor to remove an official in recent memory, some senators want clarity on the constitutional law — including what qualifies as "reasonable cause."

Earlier this month, Senate and House leadership called on McGuiness to take a leave of absence while she is under investigation by the Department of Justice. The lawmakers argue it is necessary to maintain a level of public trust. Through her attorney, McGuiness has refused to do so.

The resolution could present a personal conflict for Schwartzkopf and House Majority Leader Valerie Longhurst, a Democrat from Bear. Schwartzkopf is a longtime associate of McGuiness, who served as his campaign treasurer dating back to 2002. Longhurst controversially endorsed McGuiness, who is also a Democrat, in her bid for auditor.

Neither responded to direct requests for comment about whether they would support petitioning the governor to remove McGuiness since she refused to take a leave of absence.

In a statement, Wood, McGuiness' attorney, argued that the General Assembly and Carney cannot remove her simply on the grounds of an indictment. An accusation alone does not equal "reasonable cause," he argued.

"Like anyone charged with a crime, the Auditor must be presumed to be innocent," Wood said.

Carney's office declined to comment about the resolution except to say that the auditor is facing "very serious charges" and that the governor could potentially have a role in her removal.

OPTIONS FOR REMOVAL: Indicted state auditor refuses to step aside. Will Democratic leadership force her to?

THE INDICTMENT: Delaware state Auditor Kathy McGuiness indicted on 2 felony charges

Sarah Gamard covers government and politics for Delaware Online/The News Journal. Reach her at (302) 324-2281 or sgamard@delawareonline.com. Follow her on Twitter @SarahGamard.