Delaware Department of Justice has issued an opinion stating Sussex County Council has no legal authority to enact a proposed right-to-work ordinance.

That opinion, sent to council in a Nov. 15 letter, does not sway the councilman who is pushing to place the ordinance on a December county council agenda.

The letter came as no surprise to Councilman Rob Arlett, R-Frankford, who introduced a right-to-work ordinance Oct. 31. “It's one of many opinions. That office is not the end authority or decision maker,” he said. “The letter is part of the record for consideration. We are looking for all opinions.”

State Solicitor Aaron Goldstein wrote to council that Sussex County’s powers are granted by the General Assembly. “The General Assembly has expressly forbidden the delegation of labor regulation authority to political subdivisions,” he wrote.

Delaware Secretary of Labor Patrice Gilliam-Johnson asked the state's Attorney General’s Office to offer an opinion on the matter and submit it as public comment to the county.

Arlett said he's not sure what motivated the state solicitor to weigh in on the ordinance. “Maybe someone at the county level asked for it, but I don't know that for a fact,” he said. “In any case, I think the letter is an attempt to dictate how we conduct business.”

Under the proposed ordinance, no worker in the county would be required to pay union fees or join a union as a condition of employment. Public workers would be excluded.

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

Arlett calls for public hearing

Arlett said he wants a public hearing on the ordinance as soon as possible, preferably in December. He wants council to vote on the ordinance before the General Assembly begins its 2018 session in January.

“I have a fear that the state Legislature will fast-track a bill to prevent our ability to enact right to work in Sussex County,” he said. “There is no reason to delay this process in advance of the General Assembly going into session.”

Council has three meetings left before the Christmas break.

Arlett said the hearing could be placed on the Tuesday, Dec. 12 agenda and a special meeting could be scheduled to take a vote before the end of the year.

Arlett said the Democrat-controlled General Assembly doesn't see the relevance of the ordinance. “The elected body at the county level is best suited to make this decision for our residents. There are more attorneys stating there is a legal path forward for this, and that's the reason for me to continue to get this process to a public hearing. That's all I've ever wanted,” he said. “My motivation is to serve the people and bring new economic opportunities to the county – that's where my focus is.”

An opinion on home rule

The solicitor's opinion backs a legal opinion from county attorney Everett Moore, who told council Oct. 24 that a proposed right-to-work ordinance would be challenged in court, and possibly in different courts by different challengers.

A legal definition of home rule is under debate. Under home rule, the Delaware General Assembly has granted counties the ability to pass their own laws or ordinances. The question is whether home rule extends to labor issues. Moore says it does not.

The solicitor wrote the proposed ordinance intends to remove “restraint or coercion regarding the payment of mandatory dues, fees or other payments to a labor organization as a condition of that employment.”

Goldstein wrote that state law is devoid of any implied or expressed grant of authority to Sussex County to regulate labor organizations or affect employee/employer collective bargaining.

He wrote that Sussex County's home-rule authority does not include the power to enact private or civil law concerning civil relationships. “The relationship between an employer and employee, between an employee and a collective bargaining organization, and between the collective bargaining organization and the employer are all civil relationships. It is beyond dispute that the ordinance concerns these relationships,” Goldstein wrote.

For more than 50 years, union agreements requiring compulsory payment of union dues have been legal under federal and state law. Workers who opt not to join a union – yet still reap the benefits of collective bargaining – are required to pay their fair share of the costs of collective bargaining.

“Fair share is a routine feature of collective bargaining across the United States and state of Delaware. The ordinance seeks to legally prohibit these kinds of agreements and create individual legal cause of action to set aside these bedrock principles of collective bargaining,” Goldstein wrote.

“Under current state law, we believe that only the Delaware General Assembly has the authority to enact private or civil law concerning civil relationships in this context,” Goldstein concluded.

Opposing view from attorney

Arlett said council also received a detailed letter from attorney Ted Kittila of the Caesar Rodney Institute offering legal reasons county council could adopt a right-to-work ordinance.

“We maintain that nothing in the case law prohibits the county council from taking the actions to implement the right-to-work ordinance,” Kittila wrote. “Until the General Assembly affirmatively occupies the space, the county council may act.”

During public comment at a recent meeting, David Stevenson of the Caesar Rodney Institute said Liberty Justice Center and Pacific Legal Foundation both say county officials have the right under the state home-rule law to enact the ordinance and would represent Sussex County pro bono if council should pass an ordinance.