There was some question around here last week about whether or not the SEU was acting within the law that created them. There was an allegation that their term had expired per statute. Here is the pertinent part of the law:
There is hereby created the SEU Oversight Board which shall, from passage of this Act until January 31, 2008, consist of all members of the Sustainable Energy Utility Task Force (“Task Force”) appointed pursuant to Senate Concurrent Resolution 45 from the 143rd General Assembly and Senate Concurrent Resolution 6 from the 144th General Assembly. By December 31, 2007 the Task Force shall recommend to the General Assembly the composition of the Board to serve after January 31, 2008.
So according to this, their term expired on January 31st, three and a half months ago. I spoke to an assistant to Senator McDowell and confirmed that, indeed, the authority was not renewed. On the recommendation of counsel, they have continued to operate as if they were still a legal entity. This may explain why they were unable to answer whether of not they were a public body in their last meeting. According to my source, they are continuing to meet in order to solicit input on how to structure the permanent SEU oversight board.
I contacted Tyler Nixon for comment (note to self, never ask a lawyer for a comment without specifying a maximum number of words). Mr. Nixon’s full comment is below the fold.
Senator Harris McDowell, and any other person knowingly and/or wilfully disregarding Del C. 29 Sec. 8059(e)(1), is unlawfully operating a rogue quasi-agency by purporting to hold meetings and make decisions dispositive of the Sustainable Energy Utility’s future, months after the former SEU Oversight Board’s authority expired.
There is absolutely no authority under Delaware law for any meetings or actions undertaken by any “SEU Oversight Board” after January 31, 2008. Any attempt by Senator McDowell or others to mislead the public into the belief that there is presently a validly-constituted and legally-operating SEU Oversight Board is nothing short of blatant fraud on the public.
Senator McDowell should be sanctioned by the Ethics Committee and the Attorney General needs to be notified.
Any attorney advising Senator McDowell or other former SEU Oversight Board members that they can meet or act under any color of law is also blatantly participating in a fraud on the public.
Any purported SEU counsel is being paid by public funds and has a fiduciary obligation both in that capacity and as a Delaware attorney to advise any individuals purporting to act as the SEU Oversight Board that there is no longer statutory authority for such actions, under present Delaware law.
In fact, because the SEU Oversight Board no longer has any statutory authority neither does any attorney have any legal standing to claim to be counsel to this Board, irrespective of Senator Harris McDowell’s lawless say-so.
I would urge any legislator or individual who perhaps may not be aware of this fraud, but is being duped by Senator McDowell and/or the former SEU Oversight Board’s purported counsel into participating in the illegal perpetuation of the SEU Oversight Board, to cease such actions and distance themselves from Harris McDowell and anyone else going along with his fraud.
Until such time as the legislature re-authorizes the SEU Oversight Board and makes it very clear how the Board is to be selected and confirmed by law, no one who has any respect for the rule of law would be involved with Senator McDowell’s activities concerning the SEU.
Editor’s note:Quote corrected at Mr. Nixon’s request.