Delaware Senate Vote on Removing Convicted Auditor Criticized as ‘Political Theater'

Senate Democrats voted in a special session Monday to seek to remove Delaware’s state auditor from office, an action criticized as meaningless “political theater” by the Democratic House speaker.

Senators voted 13-7 for a resolution to hold a joint session of the legislature regarding the removal of Auditor Kathy McGuiness, a Democrat. The resolution must also be approved by the House, but Speaker Pete Schwartzkopf said he has no intention of calling his chamber into special session.

“This isn’t taking decisive action: it’s political theater,” Schwartzkopf, a longtime political ally of McGuiness, said in a statement issued by Democratic House leadership.

Under a provision in Delaware’s constitution, the governor may remove any officer, except the lieutenant governor or a state lawmaker, for “any reasonable cause” if asked to do so by at least two-thirds of the members of both the House and Senate. The person against whom lawmakers are acting would be entitled to at least 10 days notice before any proceeding, at which he or she could be represented by an attorney, call witnesses and present evidence.

“The Senate’s resolution would simply start a lengthy process to ultimately ask the governor to remove the state auditor from office — request he’s not required to fulfill, and a request he’s indicated that he wouldn’t carry out at this time anyway,” Schwartzkopf said.

Senate Democrats contend that McGuiness should be removed from office for betraying the public trust.

McGuiness, who is responsible as auditor for rooting out government fraud, waste and abuse, was convicted this month on misdemeanor charges of conflict of interest, official misconduct and structuring a contract with a consulting firm to avoid compliance with state procurement rules. She was acquitted on felony charges of theft and witness intimidation.

The case marked the first time in Delaware history that a sitting statewide elected official had been convicted on criminal charges.

“Any public official who engages in the actions that Auditor McGuiness was found guilty of by a jury is unfit for public office, but especially the state’s top financial watchdog,” said Senate President Pro Tem David Sokola, a Newark Democrat.

As McGuiness looked on, Republican senators criticized the resolution as an act of political theater that was both premature and unfair.

McGuiness’ convictions have yet to be formally entered, and no sentencing date has been set. Her attorney has filed motions asking for a judgment of acquittal, or, in the alternative, a new trial. The attorney general’s office responded to those motions on Monday just minutes before the Senate convened.

“This individual, in the eyes of the law, is still innocent,” said Senate Minority Whip Brian Pettyjohn, a Georgetown Republican whose motion to table the resolution was defeated.

Sen. Colin Bonini, a Dover Republican, argued that voters should decide the fate of McGuiness, who is seeking re-election and faces a Democratic primary challenger on Sept. 13. McGuiness and Democratic Attorney Kathleen Jennings also have been mentioned as possible Democratic gubernatorial candidates in 2024.

“You should always default to what the people decide,” Bonini said.

Schwartzkopf noted that House Democrats had sent a letter to Democratic Gov. John Carney earlier this month supporting the use of his authority under a different constitutional provision to unilaterally remove McGuiness from office if the guilty verdicts against her are entered as convictions.

Under that provision, the governor is required to remove any public officer convicted of “misbehavior in office” or of any “infamous crime.” Carney said earlier this month that Delaware’s Supreme Court made it clear in a 1979 ruling that the governor has no power to act until after the entry of a judgment of conviction.

Senate Democrats said Schwartzkopf was abdicating the legislature’s constitutional responsibility to the executive branch while allowing McGuiness to continue collecting her taxpayer-funded salary.

McGuiness was convicted of conflict of interest in the hiring of her daughter in 2020. Prosecutors alleged that Saylar McGuiness, 20, was hired even as other part-time workers in the auditor’s office left because of a lack of work early in the coronavirus pandemic, then allowed special privileges not available to other “casual-seasonal” workers. McGuiness also was convicted of structuring payments under a no-bid communications services contract with a consulting firm she had used in a 2016 campaign for lieutenant governor to avoid having to get them approved by the state Division of Accounting. The structuring and conflict of interest convictions laid the foundation for jurors to also find McGuiness guilty of official misconduct

Among the Democrats who voted to seek McGuiness’ ouster were Sokola, Sen. Trey Paradee of Dover, and Sen. Nicole Poore of New Castle, all of whom have children who obtained jobs as legislative staffers. Also voting in favor of the resolution was Wilmington Democrat Spiros Mantzavinos, a friend of McGuiness who once served as her chief of staff in the auditor’s office.

“That was quite disturbing,” said McGuiness, who continues to maintain her innocence.