September 23, 2004

County attorney Timothy Mullaney is in apparent violation of a provision of the state constitution because it would seem that he does not live in New Castle County, according to the attorney general's office.

 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."

2004. All rights reserved.

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