I believe that the answer is yes.
I believe that legal precedent established in this state also says yes.
I believe that, according to law, Tony DeLuca is illegally serving as President Pro-Tempore of the Delaware State Senate and illegally serving as a member of the Delaware State Senate.
I shall now proceed to explain to you why I believe this to be true.
First, the Cliff’s Notes Version. The Delaware Supreme Court issued an opinion holding that a public officer of the state may either serve in a position that makes the laws, or a position that enforces the laws. You can’t do both. Tony DeLuca does both, and he can’t do that.
In the same opinion, the Supreme Court held that, when one accepts the second position that violates the separation of powers, they will have effectively resigned their first position. In other words, Tony DeLuca effectively resigned his Senatorial office when he took a job enforcing labor law. Except he didn’t.
OK, on to the very important legalese. It may appear daunting, but it seems crystal-clear to me.
On October 28, 1998, the Delaware Supreme Court issued a unanimous opinion that held that:
In accordance with John Dickinson’s formulation, Delaware has always separated its powers of government by keeping them both “distinct in department” and “distinct in office.” The Delaware Constitution of 1897 provides for exclusive action of each branch within its own sphere. Laws are to be enacted by the legislative branch (Article II), enforced by the executive branch (Article III), and construed by the judicial branch (Article IV). The prohibition against dual officeholding in the second clause of Article II, § 14, is intended to maintain that tripartite balance of power among the branches of government by precluding more than one of those separate sovereign functions to be performed by the same person.
In other words, as I read the opinion, you can’t simultaneously be someone who makes the laws and someone charged with enforcing the laws. Tony DeLuca does both. But more about him later.
This opinion was rendered at the request of then-Governor Tom Carper. The issue at the time was that a state policeman named Douglas Salter, active on the force at that time, was seeking election to the state legislature. From the Court’s opinion comes this framing of the question:
The reason for this request is the candidacy of Trooper Douglas Salter for the Delaware House of Representatives, Seventeenth District. If the above question is answered in the affirmative, Trooper Salter’s success in the coming election and acceptance of the Office of State Representative would act as a “resignation or renunciation” of his State Trooper appointment. See Opinion of the Justices, Del.Supr., 647 A.2d 1104, 1104 (1994) (quoting State ex rel. Biggs v. Corley, Del.Supr., 172 A. 415, 419-20 (1934)). An opinion of the Justices addressing whether it is incompatible for an active police officer with the Delaware State Police to serve simultaneously as an elected Representative in the Delaware General Assembly would give much needed guidance on this important constitutional issue which affects two branches of government.
The court struggled with the issue:
This Court has recognized the general legal principle “that where the holder of an office accepts another incompatible office, the acceptance of the second office operates as a resignation or renunciation of the first office as fully and effectually as though the relinquishment of the first office had been an intentional and voluntary act.” This principle of law applies where the incompatibility is declared by constitutional provisions such as Article II, § 14, and Article III, § 11, of the Delaware Constitution. Moreover, this Court has held that “when the resignation has become effective by the acceptance of the incompatible office, a resignation of the second office does not revive or restore the right to hold the first office which has thus been abandoned or resigned.”
I’m deliberately boldfacing these phrases for later discussion. BTW, the Court appointed pro bono counsel to argue each side of the question. In an interesting (at least to me) historical footnote, Widener Law School Dean Lawrence Hamermesh and a fresh-scrubbed cherub-faced barrister by the name of Matt Denn argued the affirmative side of the question.
The justices then considered the applicable constitutional provisions. I find this one to be quite compelling:
No Senator or Representative shall, during the time for which he shall have been elected, be appointed to any civil office under this State which shall have been created, or the emoluments of which shall have been increased during such time.
Please help me here. Wasn’t Tony DeLuca’s position created specifically for Tony DeLuca? Didn’t Minner/Brainard/Sharp/DeLuca create this new position specifically to get around any possible Hatch Act violations that might have interfered with DeLuca’s ascension to the job? I’m pretty damn sure they did. But more on that later.
The Court then carefully considered what exactly constitutes a public office. They concluded:
There is no single definition of “public officer,” but there are certain characteristics, including: (1) the exercise of some portion of the State’s sovereign power, (2) tenure in office, (3) fees and emoluments, and (4) oaths of office. We should add to this list a fifth characteristic: The powers and duties of position are conferred and defined by law.
One of these characteristics stands out above the others: the exercise of some portion of the State sovereign power. In our view, that exercise must have some element of independence as well. That is, the person must have an independent governmental duty that he or she is required to undertake by virtue of his position, not solely as an instrumentality directed by another.
In other words, in determining whether Trooper Salter’s position conflicted with state law, the boldfaced elements, among others, were the elements that they would consider. Is all this starting to come together now?
The Court ultimately held that:
Because Sergeant Salter is a public officer of the executive branch, there is a separation of powers problem, and allowing him to maintain both public offices would work an impermissible commingling of two separate branches of State government…
Most important, Sergeant Salter’s duties with the Delaware State Police require him to perform the sovereign function assigned to the executive branch of enforcing the laws of the State of Delaware. If he were simultaneously to occupy a seat in the Delaware House of Representatives, he would be called upon to perform the sovereign function assigned to the legislative branch of enacting the laws of the State of Delaware. The combination of those two sovereign functions in one person is antithetical to separation of powers between the three branches of government in Article II, III, and IV of the Delaware Constitution of 1897. Our analysis reflects that is exactly why Article II, § 14, of the Delaware Constitution has always prohibited such dual office holding.
The Justices are of the unanimous view that the question you presented to each of us must be answered in the affirmative.
Now, I’m not a lawyer. And I know that it’s a lawyer’s job to find grey areas where none are apparent. But let’s apply this opinion which, to my knowledge, is the most recent and most comprehensive opinion on this matter. Unless I’ve completely taken leave of my faculties, the conclusion is incontrovertible: It is impermissible for one person to hold two public offices when one office makes the laws and the other office enforces said laws. That, my friends, is exactly what Tony DeLuca does. No stretch of reality is required to make that connection. He is simultaneously the President Pro-Tempore of the Delaware State Senate and the Director of Labor Law Enforcement at the Department of Labor.
If anything, Trooper Salter had a better case than DeLuca does, as Salter was working in the Planning Office for the State Police, but the Supreme Court held that he still met the ‘public officer’ criteria that would disqualify him from holding both offices simultaneously.
So, not only is DeLuca illegally holding his two jobs, in violation of this opinion, he is specifically illegally serving in the Delaware State Senate. Why do I say that? Here’s the applicable passage of the decision:
This Court has recognized the general legal principle “that where the holder of an office accepts another incompatible office, the acceptance of the second office operates as a resignation or renunciation of the first office as fully and effectually as though the relinquishment of the first office had been an intentional and voluntary act.” This principle of law applies where the incompatibility is declared by constitutional provisions such as Article II, § 14, and Article III, § 11, of the Delaware Constitution. Moreover, this Court has held that “when the resignation has become effective by the acceptance of the incompatible office, a resignation of the second office does not revive or restore the right to hold the first office which has thus been abandoned or resigned.”
DeLuca was already a state senator at the time he ‘was hired’ to be the State Director of Labor Law Enforcement. The opinion quoted above makes clear that, in the eyes of the law, DeLuca’s acceptance of his second job was the same as a resignation or renunciation of his Senate job. Were DeLuca now to decide that he’d rather be a senator than the Labor Law Enforcement director for the state, the court makes clear that he doesn’t have the right to do that.
Why then, you may ask, is DeLuca still where he is? IMHO, the answer is that no one with standing has yet brought this issue before the court. The original opinion was just that, an opinion. Then-Gov. Carper and Trooper Salter had sought the opinion before it became a legal issue. Minner/Brainard/Sharp/DeLuca did not seek such an opinion. No surprise there. That, however, does not render the unconstitutionality of what DeLuca is doing as moot, nor does it provide him any legal fig leaf.
While anyone who believes that they have standing could bring the case, and DeLuca has made legions of enemies in both of his ‘public officer’ positions, I believe that the ideal person to do so would be Attorney General Beau Biden. As a sworn officer both of the court and of the State of Delaware, he has an obligation to enforce the laws, beginning with Delaware’s State Constitution. I know that DeLuca is powerful, but he should not be above the law. Which is where he’s placed himself by violating the State Constitution.
I firmly believe that, once someone with standing brings this to the Court’s attention, Tony DeLuca’s de-facto resignation will take effect. Don’t think that Chris Tigani’s springing for the beer for that celebration…