Two Delaware representatives calling for hearing about auditor's removal

Attorney asserts indictment is not ‘reasonable cause’ for dismissal

By Rachel Sawicki and Craig Anderson, Delaware State News
Posted 10/26/21

Some New Castle County representatives are calling for Gov. John Carney and House and Senate leadership to remove indicted State Auditor Kathy McGuiness from office.

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Two Delaware representatives calling for hearing about auditor's removal

Attorney asserts indictment is not ‘reasonable cause’ for dismissal

Posted

Some New Castle County representatives are calling for Gov. John Carney and House and Senate leadership to remove indicted State Auditor Kathy McGuiness from office.

Rep. Madinah Wilson-Anton, D-Newark, posted a letter signed by her and Rep. Mike Smith, R-Pike Creek, on her Facebook page Friday, asking the House of Representatives to consider a resolution for removal while it is in special session Nov. 1.

“The Auditor has been asked by House and Senate leadership to temporarily step down while the court process unfolds. She has refused to do so,” Rep. Anton-Wilson said in the post. “We have a responsibility to our constituents, and we respectfully request this resolution be heard in the interest of public trust.”

In response, attorney Steve Wood released a statement on Ms. McGuiness’ behalf Monday, maintaining that an indictment is not “reasonable cause” for the governor to remove an elected official, as defined in the Delaware Constitution.

Ms. McGuiness, a Democrat, has pleaded not guilty to two felonies and three misdemeanor charges connected to alleged misconduct in office. She was indicted Oct. 11.

According to Mr. Wood’s statement, “Because an indictment is not evidence, there is no historical precedent for attempting to remove an elected official from office simply because of an indictment. Like anyone charged with a crime, the Auditor must be presumed to be innocent.

“Both the Delaware Constitution and basic notions of fairness prohibit any attempt to remove her from office based on the mere fact of an indictment.”

The statement also referenced General Assembly members being charged with crimes while in office.

“Some of those crimes were violent crimes,” it read. “But never in history has the General Assembly attempted to remove one of its own simply because of a mere allegation of criminal conduct. Auditor McGuiness asks for the same patience and respect for the presumption of innocence that the General Assembly has historically afforded its own members when they are charged with crimes.

“The Constitution demands no less.”

In support of its opposition to removal, the statement also said that “an indictment is merely an accusation that is made by a Grand Jury that hears only the prosecutor’s side of the story. The defendant’s lawyer is not allowed to appear before the Grand Jury, or to offer evidence on behalf of the defendant.

“In every criminal trial in Superior Court the jury is told by the presiding judge that, ‘the indictment is merely the process by which a charge is brought against the defendant. It is not in itself any evidence of the guilt of the defendant.’”

Asked for comment from Gov. Carney on Tuesday, spokesman Jon Starkey said, “Obviously, the auditor is facing very serious charges that she’ll have to answer in court. Removal of an elected official through the General Assembly is a constitutional process that the governor potentially has a role in. For that reason, we don’t have any additional comment at this time.”

Rep. Wilson-Anton’s post Friday also said that Ms. McGuiness’ indictment has “abrogated the public’s faith in her ability to perform her role of safeguarding the public from governmental fraud, waste and abuse.”

Additionally, Rep. Smith said in the letter that he believes in due process and that the auditor is innocent until proven guilty, but her removal from office is about public trust.

“Many have called on her to take a leave of absence,” he said on Facebook. “That’s what a public servant in this situation should do because it’s about the greater good than any one individual. … In every other job in America, anyone else would be put on a mandatory leave of absence. Our Auditor shouldn’t be treated any differently than anyone else.”

The proposed resolution opines that “as long as (Ms. McGuiness) is connected to the Office of the State Auditor, the office will be unable to operate effectively and with the full faith of the public; (so) let it be known that the House of Representatives calls on Governor John C. Carney to removed Ms. McGuiness from her position as State Auditor of Accounts.”

The representatives’ letter also stated, “We understand that the Speaker has previously stated only redistricting will be considered by the House on November 1.”