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In
a letter to Mullaney, state solicitor Malcolm Cobin said the
Department of Justice has no authority to act to enforce the
residency requirement in the county code. But he cited part of
an article of the constitution which requires a person who is
elected or appointed to a county office to have lived in the
county for at least a year prior to the appointment.
Its
wording indicates that the provision applies only to appointive
or elective county positions. It would, however, preclude going
outside the geographic limits of the county to come up with an
appointee. Hiring an out-of-county candidate through the civil
service system apparently would not be a violation.
Mullaney
was appointed to be the county's chief lawyer by County
Executive Tom Gordon and serves at the executive's pleasure.
As
Delaforum previously reported, Sherry Freebery, the county's
chief administrative officer, told County Council that Gordon
has requested from Mullaney a "plan for coming into compliance"
with the county law.
Although
his primary residency is in Kent County, Mullaney maintains that
his periodic use of his parents' home in New Castle County is
sufficient to satisfy the residence requirement.
Cobin did
not take a position on that, but did request that Mullaney
respond within 10 days to explain why he believes is appointment
and continued service in the position complies with the
constitution.
If
Mullaney cannot establish that he was a bona fide New Castle
County resident for a year or more before his appointment, the
appointment was invalid, Cobin said. "Such deficiency cannot be
remedied by establishing a residence at the present time in New
Castle County as you would not meet the requirement to have been
a resident [for] one year prior to your appointment," he said.
He did
not specify what will happen if the appointment is found to be
invalid.
County
auditor Robert Hicks, who referred the matter to the attorney
general after Mullaney failed to meet a deadline Hicks had set
for providing a plan for establishing a residence in the county.
He said after receiving a copy of Cobin's letter that it
justified his having raised the issue.
County
Councilman Robert Weiner said that Cobin's interpretation of the
law validated his own reading of it. A frequent critic of
Mullaney, Weiner said Mullaney's "continued violation of the
Delaware constitutional provision regarding residency threatens
the validity of legal actions taken by Mr. Mullaney."
He added
that Mullaney has provided "self-serving and flawed legal
advice" to county government and accused Gordon and Freebery of
"abuse of authority and unrelenting attack on anyone who
challenges the legitimacy and legality of their actions."
As
previously reported, County Council, through its personnel
committee, has urged Gordon remove Mullaney from office. A
formal resolution to the same effect has been prepared for
probable introduction into Council, which next meets on Sept.
28.
In
declaring that the attorney general's office "has no
jurisdiction to compel compliance" with the county code, Cobin
said that is something for the county executive or Council "to
deal with as they may deem appropriate." |
