Citing legal opinion, Sussex County Council deflates right-to-work pitch

GEORGETOWN – Trusting the legal expertise and opinion of their county attorney, Sussex County Council’s majority Tuesday defeated a right-to-work ordinance proposal that will go down as one of the most controversial and contentious issues in county history.

County council’s 4-1 vote deflated councilman Rob Arlett’s pitch for right to work, which would give employees in unionized workplaces the right not to join a union or in general pay for costs of union representation, while receiving the same benefits as union members.

“I have great concerns with the ordinance we are being asked to consider today,” said county councilman Irwin “I.G.” Burton before casting his ‘no’ vote. “During the public hearing there was testimony that the passing of a right-to-work ordinance would help attract businesses to Sussex County. 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 locate in Sussex County. These items we can affect right now, with or without a right-to-work ordinance.”

Councilmen George Cole, Samuel Wilson and Michael Vincent also voted against the ordinance. Mr. Arlett, whose motion to defer the vote died for lack of a second, cast the lone vote in support.

Mr. Cole and Mr. Burton both said they would support right to work if the county could do it legally without fear of litigation.

The vote by the all-Republican council followed a presentation by J. Everett Moore Jr., the longtime county attorney. In a condensed version of his 11-page written opinion, Mr. Moore reiterated that the county does not have the authority to enact right-to-work law under Delaware’s Home Rule statute.

Sussex County Attorney J. Everett Moore Jr. shares a condensed version of his written legal opinion on the proposed right-to-work ordinance. At right is county councilman Irwin “I.G.” Burton.

“After a review of existing Delaware cases interpreting the county’s Home Rule authority and the Private Law Exception, it is my opinion that a Delaware court is unlikely to uphold this ordinance in its current form,” said Mr. Moore.

Mr. Moore’s opinion is supported by Delaware State Solicitor Aaron Goldstein, whose legal opinion is Sussex County does not have legal authority to enact a right-to-work ordinance.

Several other lawyers, including Ted Kittila, an attorney with the Caesar Rodney Institute, contends the county does have the right, citing Delaware General Assembly action several decades ago.

Opponents testifying at a near five-hour public hearing Jan. 2 said right to work will result in lower wages, hurt the middle-class workforce and is merely an attempt to continue the dismantling of unions.

Supporters testifying viewed right to work as a tool for economic development that could increase job opportunities in Sussex County. They also noted that is a worker’s personal right of choice.

Mr. Moore had stated at the Oct. 24 council meeting that in his legal opinion the county did not have the authority to approve the ordinance.

“Mr. Moore has now addressed this in a written legal opinion which I will say is very thorough, specific and convincing,” said Mr. Burton.

In a text message Tuesday evening, Mr. Arlett stated, “Sussex County Council made a decision today on fear of litigation and not one of principle, unlike the city of Seaford. The loser today were the families of Sussex County all based on out-of-county influence.”

“No regrets at all. Not sure if Seaford would have had their result without the ordinance being introduced at the county level. Either way the future is bright, and I will continue to fight for our families,” Mr. Arlett stated in his text message.

In December 2017, the city of Seaford approved right to work under Home Rule authority in its municipal charter. Mr. Moore, in his presentation, explained that Delaware’s Home Rule authority for municipalities differs from counties.

Mr. Cole told the audience filled with many union supporters he would support right to work, with legal authority.

“I would personally, if I felt I could, vote for it. I just want you all to know that. I am heartened by the city of Seaford. They’ve done it at a local level, at the municipal level,” said Mr. Cole. “As an elected official I think that from here on out I will do whatever I can to encourage other towns maybe that have industrial parks to look at this issue.”

Mr. Burton said he would support right to work, with legal authority.

“I am very dedicated to working on ordinances or anything else to attract new businesses and high-quality jobs for the people of Sussex County. While I appreciate having these conversations it is my opinion that there could have been a better method to do so, a method that allows this council to come together and discuss initiatives to improve economic development in Sussex County,” said Mr. Burton. “I stand ready to work with our elected officials in Dover to give Sussex County the legal authority to enact a right-to-work ordinance or enterprise zones. I call on my colleagues here on council to join me in supporting a resolution asking the Delaware General Assembly to pursue these initiatives.”

Delaware is one of 22 states that do not have right-to-work statutes.

With council’s verdict official in hand, scores of union members and supporters rallying again in The Circle and downtown district deflated more than a half dozen huge inflatable rats and a corporate “fat cat” – from which hung a photo of Mr. Arlett – with a strangle-hold on a union worker.

Union supporters Ray Barbier, left, of Milford and Mario Corea of Bear rally with many others on The Circle outside the Sussex County Administration Building.

“It’s a good day for working-class union members, and just working-class people in general,” said Bear, DE resident Mario Corea, a member of Laborers Local 199 and a regional union organizer. “I hope this defeat – 4-1 – 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 here in Delaware. We know way too much about it and we’re not going to stop educating people on what right to work really means, and what it’s agenda really is. We’re here to stay. We’re here to fight for working folks.”

“I think it is important that the community have this dialogue,” Mr. Arlett said in prefacing his vote. “What we all have in common, no matter what colors of our shirts, and that is we all want jobs. We all want to provide for our families. We all understand that we have to do something as a community, perhaps even as a council to attract new industries. All sides agree with that. The question before us today is: Is this a tool in that toolbox?”

“I believe in the power of choice,” added Mr. Arlett. “To me, if it is worthy of six school districts in this county why isn’t it worthy of the private sector?”

If passed, the ordinance would likely face legal challenges at both the state and federal court levels.

Besides legal authority, Mr. Burton cited serious concerns regarding the county’s insurance coverage, premiums, legal costs and enforcement of right to work might have on the county. He noted the possibility of two separate lawsuits that could be appealed to higher courts.

“Has the possible increased premiums been explored or questioned by Mr. Arlett? Do we have a firm commitment from our insurance company that it will cover us, knowing that our legal counsel has given us his opinion, stating that Sussex County does not have the authority to adopt his ordinance under Home Rule” said Mr. Burton. “Keeping with the expense topic, the language of this ordinance requires the Sussex County administrator to enforce this law. I am unclear as to what this means and the effect the enforcement … will have on Sussex County government. It was never mentioned at the public hearing nor was it addressed by councilman Arlett. This will at the very least be a significant added expense to the county and likely require the establishment of a standalone, newly created department. I am a strong proponent of limited government and keeping public expenses low, something that I am very proud of here in Sussex County.”

Union workers rally in opposition to a right-to-work ordinance proposed for Sussex County.

“Right now, it appears we do not have the legislative ability to do it,” said Mr. Cole. “I’ll have to vote ‘no’ also. I wish there was a way I could vote ‘yes’ and I wish there was a way that we would have been able to tackle this issue. But again, I just want you all to know, I would have voted for this if I felt I could have done that legally and avoided a lot of the pitfalls that again Mr. Burton eluded to with the attorney fees, lawsuits and all of that stuff.”

During public comment at council meetings prior to the Jan. 2 public hearing before council, there were pledges of pro bono legal representation for the county should passage of right to work be challenged.

“Oddly, while this offer was stated in earlier public meetings, it was not mentioned on the record in public hearing. This fact is of great concern to me, given the amount of publicity this very statement has garnished,” said Mr. Burton.

“We have already spent tens of thousands of dollars researching and legal fees on something we were told months ago we could not do by our attorney,” said Mr. Vincent. “I sat in federal court on a lawsuit against this council about the Lord’s Prayer, and we had pro bono attorneys with us with our council attorney and insurance carrier. And the insurance carrier spent $445,000 to defend something I totally believed in which is the Lord’s Prayer.”

“I also feel it is my sworn obligation to uphold the law,” said Mr. Burton. “We have an opinion from our legal counsel that Sussex County does not have the authority to adopt this ordinance, no matter how much we would like to. Just because someone offers to pay the legal expenses it does not mean we can ignore the law.”

News Editor Glenn Rolfe can be reached at grolfe@newszap.com

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