Governor Markell and Attorney General Biden: I hereby wish you both a Happy New Year. I wish you nothing but the best in 2012.
I know that you and/or members of your respective staffs read this post concerning Tony DeLuca simultaneously holding the offices of President Pro Tempore of the Delaware State Senate and the Director of Labor Law Enforcement for the Department of Labor.
Allow me to briefly recap this article. In 1998, the Delaware Supreme Court issued a unanimous opinion stating 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.”
In other words, the justices held that it is unconstitutional for someone to hold a legislative position, where one makes the laws, and a position in the executive branch when one is charged with enforcing the laws.
That is precisely what Tony DeLuca continues to do.
Governor Markell, you head the executive branch of state government. You are aware of this apparent blatant violation of the State Constitution by Tony DeLuca. Whether or not you agree with the Supreme Court opinion, I believe that it is incumbent upon you to, at the least, request an opinion concerning the validity of Tony DeLuca continuing to serve in an enforcement capacity in your administration while serving as a State Senator. I think that you know that what DeLuca is doing is not legal. I understand that you may be reluctant to pursue this matter because it might not be convenient to getting your legislative agenda enacted by the Delaware General Assembly. However, the Constitution must not merely be applied selectively and/or only when it is convenient if it is to mean anything. You have sworn to uphold it. Please do so.
Attorney General Biden, you are the top law enforcement official for the State of Delaware. Your office has issued opinions both supportive of Tony DeLuca’s machinations at the Department of Labor and in opposition to Tony DeLuca’s machinations at the Department of Labor. A former Deputy Attorney General who consistently provided cover for DeLuca’s actions, including the withholding of public information from the public, no longer is employed by your office. There is considerable question as to whether this DAG even ran her opinions by you before giving DeLuca written-to-order opinions. I think you now know that Tony DeLuca has essentially placed himself above the law and basically dared anyone to challenge him. I believe that it is incumbent upon you, as the chief law enforcement official of our state, to, at the least, seek an opinion from the Supreme Court concerning the constitutionality of DeLuca’s dual employment. I believe it is also incumbent upon you to revisit the decision to not permit the release or review of Tony DeLuca’s work hours at the Department of Labor. After all, your decision has had the effect of making it impossible to determine whether this dual employee has received remuneration from the Department of Labor while actually working for the State Senate. In other words, collected twice when he couldn’t possibly be doing both jobs simultaneously.
Governor Markell and Attorney General Biden: While I’ve questioned some of the things that you’ve done or not done, I’ve never questioned your integrity here at DL or elsewhere. Which, come to think of it, I can’t say about many elected officials. I know that you both might wish that this would just go away. This will not just go away. Please do the right thing, the sooner the better. One way or another, your actions can remove this ethical cloud hanging over state government.