County shuts down proposed ‘right-to-work’ ordinance

Date Published: 
Jan. 12, 2018

After an emotional few months of discussions and public testimony, the Sussex County Council on Tuesday voted down a proposed “right-to-work” ordinance.

The ordinance, proposed by Councilman Rob Arlett (R-5th), “prohibits mandatory union membership or payment of certain union fees, involuntary union pay deductions, and acts of coercion or intimidation related to union support or payment.”

While some union security agreements may require employees to join a union as a condition of employment, under federal law employees are already allowed to opt out of paying for a full membership, instead paying only a portion of dues for the benefits provided by the union. Arlett’s ordinance would have eliminated that lesser requirement.

Timeline of right-to-work discussions

At the Jan. 9 council meeting, County Attorney Everett Moore said that he, along with the rest of the council, had been contacted in 2016 by someone from the Caesar Rodney Institute, informing him of the right-to-work legislation in the state of Kentucky. At that time, Council President Michael Vincent (R-1st) had asked Moore to look into the legislation.

“We took a quick look at it, and at that point my concern was, just because someone in another state does it doesn’t mean that we can necessarily do it.”

In late December 2016, Moore said, he was contacted by James P. Ursomarso of the Caesar Rodney Institute, indicating Ursomarso wanted to send Moore background materials related to the topic of right-to-work.

Moore said he had contacted Sussex County Administrator Todd Lawson and Vincent regarding the request, and he was told to move ahead with his review. Materials, including videos and polling information, were sent to Moore in February of 2016, he said.

Then, on March 9, Moore related, he and an associate had had a conference call with Ursomarso, wherein Moore had stated his opinion that Delaware’s Home Rule statute does not permit the County to adopt right-to-work legislation.

“Part of the reason I bring this up — there were some statements that we did not do any research on this before and we made them hire an attorney,” said Moore. “Our office found there was a problem with this, and as a result of that, they retained counsel to take a look at it.”

In April, Moore said, he was contacted by CRI attorney Ted Kittila, who asked for a meeting at which they could present information regarding right-to-work in Sussex County.

“Frankly, we thought maybe there was something we had missed in our research or maybe there were some other pieces out there… but when we had the meeting, frankly, my associate and I left the meeting with no change in our opinion whatsoever.”

In future discussions and requests for meetings, Moore said, he inquired if anything was found on the Home Rule statute that would alter his argument.

A follow-up meeting at Moore’s office included Vincent and Councilman I.G. Burton (R-3rd), whom Moore said he was not informed had been invited, as well as Ursomarso, Kittila and the attorney involved in the right-to-work case in Kentucky.

“During that meeting… I just kept coming back to, ‘You have not addressed our Home Rule statute,’” recalled Moore. “At one point toward the end of the meeting, I turned to [the Kentucky attorney] and asked him, ‘In Kentucky, do you have the same language in your Home Rule as we have in Delaware, as we have for Sussex County?’ His answer was ‘No.’”

Moore emphasized that his public assessment of the proposed ordinance, given at the Oct. 24, 2017, council meeting was not “off-the-cuff.”

“When you asked my opinion earlier, that was not, as someone characterized, ‘an off-the-cuff opinion.’ In fact, it was an opinion that I had spent quite a few months looking at.”

Home Rule statute

“I remain committed that we have a problem with our Home Rule statute,” said Moore.

According to Delaware Code 9 § 7001, “— The government of Sussex County, as established by this chapter, shall assume and have all powers which, under the Constitution of the State, it would be competent for the General Assembly to grant by specific enumeration, and which are not denied by statute…”

Moore argued that the statute expressly prohibits Sussex County “to enact private or civil law concerning civil relationships, except as incident to the exercise of an expressly granted power…” which he went on to refer to as the “Private Law Exception.”

“Since this ordinance proposes to regulate contracts between employees, employers and unions, this Private Law Exception is the critical language in determining whether the County has been granted the authority by the Home Rule statute to enact the right-to-work ordinance,” Moore said, reading from his 11-page legal opinion.

Citing a 1976 Court of Chancery case, Weldin Farms Inc. v. Glassman, and the subsequent case of NVF Inc. v. Garrett Snuff Mills (2002), Moore said, “‘If the County cannot foreclose a private cause of action, it also cannot create one.’ Thus, the court again affirmed the Private Law Exception by declining to allow a county ordinance to serve as the basis for a civil right of action to sue…

“It is my opinion that, under current Delaware law, a court will find that the Private Law Exception to the County’s Home Rule authority prohibits the County from enacting this ordinance.”

Moore also addressed the argument that the Town of Seaford had unanimously approved right-to-work legislation and that, thus, the County can as well. He pointed out that Home Rule authority differs for municipalities and counties.

“The language is similar, but it is not the same, and those differences will likely affect any comparative analysis,” he wrote in his opinion. “Note that the National Labor Review Act preemption will be of equal concern to a municipal ordinance.”

National Labor Review Act

Moore also stated that there was question of whether the proposed ordinance was preempted under the National Labor Relations Act — a federal law regulating private-sector employment.

“The NLRA permits, under certain conditions, a union and a private employer to make an agreement, called a union-security agreement, that requires employees to become union members as a condition of employment; however, every employee has the option to decline full membership and instead pay a portion of the union dues, referred to as ‘agency fees,’ to the union in order to retain their jobs,” he said.

Moore noted that the NLRA has an exception, which states, “…The NLRA states that the Act shall not be construed as ‘authorizing the execution or application of agreements requiring membership in labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.’

“In other words, the States are clearly permitted to enact right-to-work legislation that prohibits union-security agreements, but only recently have local entities made a concerted effort to challenge the assertion that the ‘States’ includes local entities. What they are arguing is, that ‘States’ do not mean one of our 50 states but any subdivision of the states.”

Moore said the authority has not been granted by the Third Circuit Court, which governs Delaware, or the U.S. Supreme Court, to allow for “State” to include the political subdivisions of the state, i.e., the counties.

He went on to reference a Harvard Journal on Legislation, published in the summer of 2017, which found that the Sixth Circuit Court (which does not govern Delaware) to be the only court to “affirm a local entity’s right to enact right-to-work legislation, under the NLRA exception.”

“I do not believe the ordinance is likely to survive a challenge under the federal issue of NLRA preemption,” said Moore.

In his opinion, Moore noted that the ordinance, which was not drafted by his office, was first proposed by Arlett at the Oct. 31, 2017, council meeting.

He added that, if the council were to pass the proposed legislation, a budget amended might need to be considered to provide funding to maintain it, as the proposed ordinance included the language, “It shall be the duty of the County Administrator, or his/her designee, to investigate complaints of violation or threatened violations of this chapter and to take all means at his/her command to ensure the effective enforcement of this chapter.”

Moore cautions council on accepting financial help from outside

Moore on Tuesday also issued a further note of caution to the council based on issues arising from the proposed ordinance and its consideration.

“At the public hearing and in prior testimony, several have mentioned that certain organizations have offered funding and/or pro bono legal services to defend any potential challenges to this ordinance. If, despite my legal opinion, council decides to pass this ordinance, I strongly recommend that council submit the question of whether such funds or services may be accepted to the State Public Integrity Commission.”

Moore went on to cite Delaware Code 29 § 5806 — specifically:

“(b) No state employee, state officer or honorary state official shall have any interest in any private enterprise nor shall such state employee, state officer or honorary state official incur any obligation of any nature which is in substantial conflict with the proper performance of such duties in the public interest. No state employee, state officer or honorary state official shall accept other employment, any compensation, gift, payment of expenses or any other thing of monetary value under circumstances in which such acceptance may result in any of the following:

“(1)?Impairment of independence of judgment in the exercise of official duties;…

“(4)?Any adverse effect on the confidence of the public in the integrity of the government of the State.”

He added, “The council has adopted these so, we’re bound by those.”

Following Moore’s presentation, Arlett motioned for the council to defer their decision on the ordinance. That motion was met by sounds of disapproval from many of those in attendance, and the motioned failed due to a lack of a second.

Councilman George Cole (R-4th) then motioned to adopt the ordinance, with a second from Burton. But the council vote was 4-1 against approving the legislation, with Arlett the lone vote in favor of it.

“I think, based on the testimony, there are plenty of organizations out there that support this. People want this, business communities want this. Obviously, quite a few others don’t really agree with that,” said Arlett prior to his vote. “Ultimately, I believe in the power of choice. I believe in the power of the person. So, to me — it’s worthy of six school districts of this County, why isn’t it worthy of the private sector? That’s just a common-sense analogy.”

Arlett also made note of the differing legal opinions.

“It’s an important part of the equation,” he said. “Truth be told, I’m not an attorney. None of us are up here that have a vote. That’s why we have a legislative body, that’s why we have a court system to determine what is lawful what is not lawful. I think if we had another attorney over here today, he would probably counter that opinion.”

Due to the “merits of economic development,” Arlett said, he would vote yes to pass the proposed legislation.

“To me it is about choice,” he said. “If it has the ability to attract jobs to this county, then we should consider it and let the courts make their decision as they see fit.”

Cole said that he was heartened by the City of Seaford and their decision to pass Right-To-Work legislation.

“I would personally, if I thought I could, I would vote for it,” he said of the ordinance. “I think as an elected official from here on out I will do what I can to encourage other towns to look at this issue and move forward on it.”

Cole went on to vote against the legislation.

“I wish there was a way I could vote yes. I wish there was a way we could tackle this issue,” he said.

Burton questions legal costs for right-to-work

In discussing the proposed ordinance, Burton said he is a proponent of bringing jobs to Sussex County.

“I was elected to improve the economic opportunities for families in Sussex County. I want more businesses to locate here. I want more people to be employed here, so my kids and grandkids don’t have to leave Sussex County for a good-paying job. I support any initiative that improves the economic landscape… Who doesn’t want that? We all do.”

Burton said there was great public conversation through public comments on the proposed legislation, with the overarching theme that everyone wants more opportunities for the county.

“However, I have great concerns with the ordinance we are being asked to consider today,” he said. “Although I believe the right-to-work ordinance may be a factor for some companies, I firmly believe other factors, such as infrastructure, shovel-ready sites, transportation system, strong labor force, competitive, available utilities, low taxes, internet and good schools all outrank right-to-work for companies looking to relocate to Sussex County.”

Those factors are ones the council “can affect now,” said Burton, noting that everyone has the responsibility to work toward making the County attractive for businesses.

“I want to focus on improving these items, rather than spending time and public money fighting lawsuits over this ordinance.”

Burton said he was not ready to sign the County up for a court battle — one he said he believes would follow if the legislation was passed.

“This will be very expensive and this will be very time-consuming and, in my opinion, will be an unnecessary distraction,” he said, noting that the suggestion of legal fees being paid by an outside entity was not enough of an assurance for him to waive his reticence.

“All costs were never defined, by whom or how much. Oddly, while this offer was stated in an early public meeting, it was not mentioned on the record in the public hearing. This fact is a great concern to me, given the amount of publicity this very statement has garnished.

“I feel it is my sworn obligation to look after taxpayer dollars and how they are spent. I do not believe most taxpayers approve of their money going toward fighting an unavoidable lawsuit.”

Burton also said it is his duty to uphold the law, and the opinion of the County attorney clearly stating the County does not have the authority to adopt the proposed legislation.

He added that he also had concerns regarding the County’s insurance and how a lawsuit could affect their coverage.

“Has the possible increase in premiums been explored or questioned by Mr. Arlett? Do we have a firm commitment from our insurance company that it will cover us, knowing our legal counsel has given this opinion stating that Sussex County does not have the authority to adopt this ordinance under Home Rule?

“Just as important, will they continue to cover us, and, if so, what will our premiums be? What will our deductible be?”

Burton said that, prior to the 2012 litigation against the County regarding the council’s consistent use of “The Lord’s Prayer” to open its sessions, the County’s insurance deductible related to litigation was $25,000, but it has since increased to $500,000.

“Additionally, only one insurance carrier agreed to underwrite the County, after being dropped by our previous provider. Our premiums took an equally drastic increase. This is a lasting effect above and beyond any claims to cover the County’s direct legal expense.

“Who’s going to pay the increased premiums in years to come? Who’s going to pay the increased deductibles the next time we are in court on something else? What happens if we can no longer get insurance and we have to self-insure? These would all be legacy costs that the taxpayers would have to fund, even if the direct costs of litigation of this ordinance are paid.”

Burton voted against the proposed ordinance.

During Vincent’s statement prior to his negative vote, he said everyone on the council had been aware of his attendance in the meeting with Moore and CRI. He stated that he had asked at the meeting if there were companies that would come to Delaware today if right-to-work was enacted.

“The answer was an emphatic ‘No.’ It would make us competitive with other states that are right-to-work.,” he said.

Vincent also said he was “disappointed with how the ordinance was introduced.”

“That’s not how we do business here,” he said. Addressing comments that it was being “stonewalled” he said, “I was never asked about an ordinance being introduced, nor do I think the attorney was or administrator was.”

Vincent also said he was upset that the County has spent so much money already over the proposed ordinance. According to the County’s finance department, as of legal billing through Nov. 30 alone, the County had spent $20,000 on right-to-work, and additional legal costs have been incurred since then.

“I am sad that we have already spent tens of thousands of dollars researching, in legal fees, on something that we were told that we couldn’t do months ago by our attorney.

“You heard Mr. Burton reference the deductible we face and the pro bono idea that would somehow pay for all of our legal expenses. I will tell you this: I sat in federal court on a lawsuit against this council about ‘The Lord’s Prayer.’ We had pro bono attorneys with us, with our council attorney and the insurance carrier. And the insurance carrier spent $445,000 to defend something I totally believed in… Pro bono doesn’t mean everything is free.”

Vincent said he whole-heartedly wants to bring jobs to the county but does not believe the proposed legislation was the right way to go about it.

“I don’t think there’s anyone on this dais that would not tell you we would do anything we could to bring jobs to this county, no matter what it is.”