Delaware AG: Sussex cannot approve right-to-work law

The Sussex County Council does not have the legal authority to enact a right-to-work law aimed at bolstering job creation in southern Delaware, the state Attorney General's Office has ruled.

But County Councilman Rob Arlett, who sponsored the measure, said he would not be deterred.

"It's only one opinion among many," he said Friday. "If the state Legislature is not even going to consider a right-to-work law for all of Delaware, it is my responsibility to find a path at the county level to pursue job opportunities for my constituents."

RELATED:Is right-to-work coming to Sussex County?

RELATED:Sussex officials wrestle with roads that can't handle increasing traffic

Introduced last month, his proposed ordinance would allow local workers to decide for themselves whether or not they want to join or pay dues to a union. The measure seeks to exempt the county from a long-standing state law that allows for so-called "closed shops" – businesses where union membership is a condition of employment.

"Under current state law, we believe that only the Delaware General Assembly has the authority [or] power to enact private or civil law concerning civil relationships in this context," State Solicitor Aaron R. Goldstein wrote in a letter to the Republican-controlled council.

Goldstein's opinion matches a legal interpretation that Sussex County Attorney J. Everett Moore gave the County Council before the proposed ordinance was introduced. He warned that passing such a law could lead to a costly legal challenge the county likely would not win.

But that did not stop Arlett – who served as the Delaware campaign chair for President Donald Trump – from introducing a right-to-work ordinance he claims would help attract new businesses.

"It's up to me, and it's up to County Council to create an environment that will attract those companies," he said. "Employees here would still have the opportunity to join a union if that's what they want. But it would give them the choice."

Cotton Collins, a Bridgeville resident with the International Brotherhood of Electrical Workers Local 126, sees the proposal differently.

"It's a union-killing bill, plain and simple," he said.

"The real problem is no one is actively seeking to bring companies to Sussex County other than stores that pay very little," he said. "The unions are the ones out here fighting to be sure people have jobs with decent health care and retirement, and I don't think the councilman understands that."

Arlett's proposed ordinance is the latest volley in a long-running political fight over the impact labor unions have on Delaware's ability to attract and retain employers.

Proponents frequently point to job growth in the 28 states that have right-to-work laws as evidence that those laws spur economic expansion. Many economists, however, say it is too difficult to separate those rules from other factors, such as limited regulations and financial incentives, that also could be impacting employment.

Republicans in the General Assembly made a push in 2013 to create right-to-work zones in Delaware in an effort to boost the state's sagging manufacturing industry. They argued that companies would be more willing to locate here if they did not have to contend with unions.

The bill was strongly opposed by Democrats, whose strong union support has helped them to control houses of the Legislature for a decade and the Governor's Office for 25 years. The measure ultimately failed to get out of committee.

"As a general matter, the Governor doesn’t believe that Right to Work laws would move Delaware’s economy forward, or help the working men and women of our state continue to earn a decent living," a spokesman for Gov. John Carney told The News Journal last month when asked about Arlett's proposed ordinance. "He would not be in favor of such a proposal."

After Artlett's measure was introduced on Oct. 31, Delaware Labor Secretary Patrice Gilliam-Johnson – a Cabinet member in Carney's administration – called on the Attorney General's Office to issue an opinion on the proposal's legality. Attorney General Matt Denn also is a Democrat and previously served as lieutenant governor.

Goldstein, an appointee of Denn's, argues the nearly 50-year-old state law that created Sussex County Council does not permit elected officials there to regulate unions or "otherwise affect the employee/employer relationship with respect to collective bargaining."

And, he notes, the General Assembly has expressly forbidden authority over labor regulations from being delegated to counties, cities and towns.

"For these reasons, the Ordinance cannot withstand judicial scrutiny," he wrote.

His letter does not prevent Sussex County Council from putting that legal opinion to the test.

Six years ago, former Sussex County Sheriff Jeffrey Christopher waged a legal battle against the county and state over the ability of his office to make arrests.

The Delaware Supreme Court ruled in 2013 that county sheriffs do not have that authority. Christopher was defeated by 21 votes in an election the following year.

A public hearing and final vote on Artlett's right-to-work ordinance has not yet been scheduled.

Contact reporter Scott Goss at (302) 324-2281, sgoss@delawareonline.com or on Twitter @ScottGossDel.