Sussex County Council defeats right-to-work ordinance

Officials cite potential legal costs and lack of authority to enact measure
January 9, 2018

Sussex County Council voted 4-1 to deny a proposed right-to-work ordinance. The action follows a prolonged Jan. 2 public hearing as well as testimony during public comment periods over the past three months since the ordinance was introduced.

Union members have attended every meeting since introduction and protested against the ordinance Jan. 2 and Jan. 9 on The Circle in Georgetown.

At its Jan. 9 meeting, county attorney J. Everett Moore reiterated his stand that Sussex County Council does not have the right to enact an ordinance under the state’s home-rule statute. Moore spoke for nearly a half-hour providing background leading to his legal opinion that only the Delaware General Assembly has that right.

After Moore's presentation, Councilman Rob Arlett, R-Frankford, said there was a lot of information to digest. “It makes sense to defer based on what you just said. It's a big decision,” he said, offering a motion to defer.

That drew jeers from the crowded council chambers.

Arlett, who introduced the ordinance as a potential economic development measure, failed to get a second on his motion. Arlett was the only councilman to vote in favor of the ordinance during the subsequent vote.

Council agreed that the cost of defending potential legal action in state and federal courts would impact the county’s budget, and could lead to the county losing its insurance company in the future. The four councilmen opposed to the ordinance agreed with Moore’s legal opinion.

Under the proposed ordinance, no worker in the county would have been required to pay union fees – known as agency fees – or join a union as a condition of employment. Those workers would have the same wages and benefits of union members. Public workers would be excluded. Delaware is one of 22 states that do not have right-to-work laws.

Union leaders testified the ordinance was an attack on unions, was unnecessary and would hurt the local economy, not boost it.

Mario Corea of Bear echoed comments expressed by many union members after the meeting.
“It’s a good day for working class union members, and just working-class people in general,” said Corea, a member of Laborers Local 199 and a regional union organizer. “I hope this defeat shows they can try to bring it all they want but at the end of the day right to work is not going to fly in Delaware. We’re not going to stop educating people on what right to work really means, and what it’s agenda really is.”

Passage would lead to litigation

Councilman I.G. Burton, R-Lewes, said testimony showed that approval of the ordinance would lead to litigation in state and federal courts. He said that presents concerns about costs, including a $250,000 deductible for public officials' coverage and a $500,000 deductible for land-use cases. He said it was probable that premiums and the county's deductible would increase if the matter went to court. “These would be legacy costs that taxpayers would have to fund,” Burton said.

“And do we have a firm commitment from our insurance company that it will cover us, knowing our legal counsel has given an opinion stating Sussex County does not have the authority to adopt the ordinance?” Burton asked. “Litigation would occur that would be very expensive and time consuming.”

“I'm sad that we've spent tens of thousands of dollars when we were told months ago that we could not do this,” said Council President Mike Vincent, R-Seaford. “I was very concerned we would lose our insurance coverage.”

County Administrator Todd Lawson said as of Nov. 30, the county had spent more than $20,000 for legal costs associated with the ordinance. “That does not include December or January, so it will go up close to $30,000,” he said.

Vincent said no business or person contacted him telling him that lack of a right-to-work ordinance was a factor in a business considering a move or expansion in Sussex County.

Councilmen also questioned whether any legal organization would defend the county pro bono in the courts. And even if that occurred, Vincent said, the county would still incur costs.

He said the county's insurance company spent $429,000 in 2012 during the case against council’s use of The Lord's Prayer to open meetings. In addition, the county spent $44,500 for legal fees. That federal, Mullin v. Sussex County, ended with a mediated settlement that allows Vincent to lead an invocation saying a nonsectarian prayer as well as the occasional use of The Lord's Prayer. The council has opened every meeting since then with the 23rd Psalm.

Moore said it's possible council would not be able to accept pro-bono legal assistance based on Delaware Public Integrity Commission regulations.

Councilman George Cole, R-Ocean View, said he looked for ways to vote in favor of the ordinance, but he agreed with the county attorney’s legal opinion. “We try to do what is in the best interest for Sussex County, and right to work would benefit the county. I'm heartened by what the City of Seaford did. It's appropriate and I will encourage other towns with industrial parks to do the same. However, we do not have the legal authority to do it,” he said.

At its Dec. 12 meeting, Seaford's council unanimously enacted a right-to-work ordinance as the first jurisdiction in the state to have an ordinance.

Moore said the home-rule statute differs concerning counties and municipalities. He said under home rule, municipalities have independent power but counties garner power from the state.

Burton: Focus elsewhere

Burton said the county should focus on other economic development factors instead of a right-to-work ordinance such as infrastructure, shovel-ready sites, the transportation system, a strong labor force, competitive utilities, low taxes, internet and good schools. “All of these outrank right to work for companies looking to relocate to Sussex County. These items we can affect right now with or without a right-to-work ordinance,” he said. “We need to focus on we what we know we can do. There are other methods to improve economic development.”

He said he's committed to work toward implementing those measures.

Burton also said he was willing to work with state elected officials to look for a way to enact right-to-work or enterprise zones in the county. “I call on my colleagues on council to join me in supporting a resolution asking the Delaware General Assembly to pursue these initiatives,” Burton said.

Arlett: Fear of litigation

“Council voted out of fear of litigation and not principle. We are a legislative body and not a judicial body,” Arlett said after the meeting. “I'm discouraged but encouraged to keep fighting for families.”

Arlett said everyone agrees that something has to be done to attract new businesses to the county. “The question is, is this a tool for our tool box?” he asked. He said the business community wants right to work enacted, but he also acknowledged the legal issues are an important part of the equation.

He said he supported the ordinance on its merits of economic development and freedom of choice. He said council should adopt the ordinance and then let the courts decide its future


What is right to work?

Under the right-to-work law, employees in unionized workplaces cannot be forced to join a union or to pay for any part of the cost of union representation while still receiving the same benefits as union members who pay fees. Twenty-eight states have right-to-work laws in place.