Senate leadership ready to act on removal of state auditor

Senate leadership issued a statement July 5, saying they are ready to take action to remove State Auditor Kathy McGuiness from office.

“We once again call on Auditor McGuiness to place the public's interest ahead of her own and resign. Otherwise, the General Assembly must exercise its constitutional powers, and the Senate is prepared to lead the way,” wrote Senate President Pro Tempore Dave Sokola, D-Newark; Senate Majority Leader Bryan Townsend, D-Newark; and Senate Majority Whip Elizabeth Lockman, D-Wilmington.

“At this juncture, we believe both the constitution and the gravity of Auditor McGuiness's crimes compel the General Assembly to make use of its own authority to remove her from office, whether via Article VI impeachment or Article III removal proceedings,” they said. “Today, we want to make crystal clear our intentions to do exactly that for the Delawareans who are demanding accountability following the auditor's egregious breach of public trust.” 

Senate leadership said Delawareans deserve a state auditor who is able to safeguard taxpayer dollars and provide good fiscal stewardship ethically, expertly and free from further distraction or additional abuses of power. In short, the power of incumbency must not prevail over the people's rightful demands for accountability, they said. 

The Senate statement was issued minutes after one sent by Gov. John Carney on the potential removal of McGuiness, who was convicted recently on three misdemeanors but continues to run for re-election.

McGuiness was found not guilty by a Kent County Superior Court jury of felony theft and felony intimidation – two counts that would have precluded her from running for office. In a July 1 press conference outside Kent County Superior Court, McGuiness said she is running for re-election and does not intend to step down. She has actively campaigned since her 2021 indictment on five criminal counts.

In his statement, Carney said he is waiting for the Superior Court to enter a judgment of conviction before he moves to remove McGuiness from office under Article XV, Section 6 of the Delaware Constitution, which addresses the removal of “any public officer convicted of misbehavior in office or of any infamous crime.”

“The Delaware Supreme Court has made it clear that the governor has no power to act until after the entry of a judgment of conviction by the Superior Court,” he said.

Carney said he believes McGuiness cannot do her job effectively under the circumstances, but his responsibility under the law is to await the final determination of the court, and then to determine his constitutional obligations after the entry of judgment. Lisa Robinson, deputy court administrator for Delaware Superior Court, said once McGuiness is sentenced by the court, an order is entered on the conviction. “The defendant would then have 30 days to appeal the conviction to Delaware Supreme Court from the date of the order,” she said.

A sentencing date has not yet been scheduled.

During McGuiness’ nearly three-week jury trial, McGuiness’ attorney Steve Wood made a motion of judgment on acquittal for all five counts on which she faced trial. Superior Court Judge William Carpenter Jr. said he reserved the right to decide on acquittal until the jury’s decision was in.

McGuiness was found guilty July 1 by a Kent County Superior Court jury on official misconduct, conflict of interest and violation of state procurement law. The official misconduct and conflict of interest charges stem from an indictment against McGuiness for hiring her daughter and daughter’s best friend to work in the auditor’s office when others had left because of reduced hours. The daughter and her friend had access to a state car, and the daughter was paid for work after returning to college – both benefits the jury found were not given to other employees.

On the violation of state procurement law, the jury found McGuiness guilty of structuring a contract beneath the $50,000 amount that would have required a bidding process, and then structuring payments beneath the $5,000 amount that would have required Division of Accounting approval.

In addition to his motion for acquittal, Wood said he plans to appeal the jury’s decision to the Delaware Supreme Court.