Delaware General Assembly Returns to Session

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The General Assembly will return to session, following a two-week break, on Tuesday, April 25.  They return to deal with a number of issues, including a widening budget shortfall, death penalty legislation, marijuana legalization legislation and a host of other issues. 
DEFAC Revenue Estimates Continue Downward Trend
On Monday, April 17,  the Delaware Economic and Financial Advisory Council held their April meeting.  The latest revenue forecasts did not improve upon the revenue gap, which after the March meeting stood at $385 million.  Based on the most recent forecasts, expected revenue has declined by $5 million for the current fiscal year and by $11 million for fiscal year 2018 (beginning July 1).  Governor Carney predicated his budget recommendations (released on March 23) on a $385 million shortfall, which is now closer to $400 million.  I will monitor and update you on what steps the administration and the General Assembly are taking in light of this recent development.
Senator Marshall Files an Amendment to Minimum Wage Bill
As he has in past years, Senator Marshall has filed an amendment (SA 1) to Senate Bill 10 which would strike the language indexing the minimum wage to the Cost of Living Adjustment under the federal Social Security Act.   He has introduced minimum wage increase bills in the prior two General Assemblies with indexing language in them, only to offer an amendment striking the language.
The bill remains in the Senate Labor Committee, lacking two signatures/votes necessary for release.  The Chambers and other business organizations will be closely following developments with the bill and working to remind committee members that, even without the COLA, this is the wrong year for a minimum wage increase.
House Bill 1 Salary History Ban
As part of an effort to work toward gender pay equity, House Majority Leader Valerie Longhurst has introduced legislation which would prohibit employers from seeking compensation history of prospective employees prior to an offer of employment.  House Bill 1 was introduced on April 4 and assigned to the House Labor  Committee.  The bill’s synopsis (verbatim) follows:
This Act builds on some of the legislation passed by the 148th General Assembly that addressed the wage gap between men and women. When employers ask prospective employees for their wage or salary history, it perpetuates disparities in pay based on gender from one job into another. This Act prohibits employers from inquiring into a prospective employee's compensation history. A prospective employee may voluntarily disclose the information if he or she wishes to do so, and the bill explicitly permits discussion and negation of compensation expectations between an employer and prospective employee, so long as the employer does not affirmatively seek compensation history in the course of discussion and negotiation. An employer is permitted to seek and confirm such information after an offer, including compensation, has been negotiated, made, and accepted if the prospective employee authorizes disclosure of that information in writing. The effective date of the bill is delayed by 6 months to allow employers to update their policies.
The Chamber participated in a meeting with the sponsor and her legal counsel, as well as a number of impacted businesses on April 13.  The Greater Philadelphia Chamber of Commerce has filed suit in federal court in Pennsylvania to block enforcement of legislation which would ban employers from this practice in the City of Philadelphia.  Massachusetts has enacted legislation along similar lines which has an effective date of July of 2018.   The sponsor has indicated that her legislation is more similar to that of Massachusetts rather than what is being challenged in Pennsylvania. 
Among those attending the meeting were H.R. professionals and two labor law attorneys.  Some of the concerns raised were:
  • Should the language be in a different section of the Code?  The employment law attorneys suggested that the statute be made a part of the Wage Payment Act rather than the Employment Practices Act, as doing so would allow the Department of Labor to exercise a number of administrative remedies without the creation of multiple causes of action.
  • An amendment clearing up any ambiguities about internal candidates, unintentional violations of the law, liability, etc. would be desirable.
Senate Bill 49, “Bill of Rights for Homeless Individuals”
Senator Bryan Townsend has introduced legislation titled the “Homeless Individual’s Bill of Rights”, Senate Bill 49.  The legislation is intended to be an antidiscrimination measure, along the lines of what they have done in some other jurisdictions.  Rhode Island, Connecticut and Illinois have enacted such measures. The bill is currently in the Senate Judicial and Community Affairs Committee.   No hearing has been scheduled yet.  I am operating on the assumption that the sponsor intends to have it heard soon after our return to Dover next week. 
The synopsis of the legislation (summary at the end of the bill) reads as follows:
An individual's housing status should not be a basis for discrimination. This bill establishes a "Homeless Individual's Bill of Rights" that provides rights to protections for individuals experiencing homelessness, including protections from discrimination while in public and while seeking access to housing, employment, and temporary shelter. This bill vests important investigatory and enforcement authority with the State's Division of Human Relations and the State Human Relations Commission, similar to their roles with Delaware's Equal Accommodations Law and Delaware's Fair Housing Act
The legislation vests the State Division of Human Relations with rule-making, investigative and enforcement authority.  It vests the State Public Relations Commission with Administrative Hearing authority and provides the Delaware Attorney General and Department of Justice with the authority to investigate, enforce, bring civil suits and retain outside counsel to represent individuals alleging discrimination.   The ability to retain “special counsel” would also be extended to the Human Relations Commission in instances where there was a conflict on the part of the Attorney General, or where, for whatever reason, the AG declined to pursue a civil action and the Human Relations Commission found that prompt judicial action would be necessary to remedy an alleged act or ongoing pattern of discrimination.   Some observations, so far, follow:
Employment Issues: The bill would bar discrimination against individuals who are homeless.  Having no fixed address could create documentation issues in the hiring process, as the federal government requires certain documents for proof of citizenship or permanent legal residency as part of the hiring process. 
Control of Premises: The bill is broad in its definitions in many areas.  Line 18-23 of the bill state that:
(a) No individual’s rights, privileges, or access to public services may be denied or abridged solely because the
19 individual is homeless. Such an individual is granted the same rights and privileges as any other resident of this State. An
20 individual experiencing homelessness has all of the following rights:
21 (1) To use and move freely in public spaces, including public sidewalks, public parks, public transportation,
22 and public buildings, in the same manner as any other individual and without discrimination on the basis of the
23 individual’s housing status.
It seems reasonable to assume that the sidewalks in front of restaurants and hotels would be considered “public spaces”.  There is no clear definition of the term in the legislation. 
Furthermore, line 58 bars the prohibition of homeless individual’s ability  “12) To eat, share, accept, or give food in any public space in which having food is not prohibited.”  If someone is distributing food on the sidewalk adjacent to a hotel or restaurant in the City of Wilmington or in the City of Newark, does this bill prohibit the owner or operator of the premises, or municipal authorities, from dispersing a group or requiring the removal of a homeless individual or individuals who are discouraging customers from entering the premises?
Complaints, Investigations, Administrative Hearings, Civil Penalties: The bill has the potential of involving business owners and operators in administrative processes generated by complaints filed by individuals alleging discrimination, based on their homeless status. 
The bill would also allow for the ordering, by administrative procedure or a court, of various remedies, including fines and damages. The fines alone are enough to generate concern (lines 171-182):
(h) If the panel determines that a violation of § 7803 of this title has occurred, it shall issue an order stating its
 findings of fact and conclusions of law and containing such relief as may be appropriate, including actual damages suffered
by the complainant, including damages caused by humiliation and embarrassment, costs, expenses, reasonable attorneys'
fees, and injunctive or other equitable relief. To vindicate the public interest, the panel may assess a civil penalty against the
respondent, to be paid to the Special Administration Fund as follows:
(1)  In an amount not exceeding $1,000 for each discriminatory practice if the respondent has not been adjudged to have committed any prior discriminatory public accommodations practice.

(2)  In an amount not exceeding $5,000 for each discriminatory public accommodations practice if the respondent has been adjudged to have committed 1 other discriminatory public accommodations practice during the 5 year period ending on the date of the complaint.

(3) In an amount not exceeding $15,000 for each discriminatory public accommodations practice if the respondent has been adjudged to have committed 2 or more discriminatory public accommodations practices during the 7-year period ending on the date of the complaint.
House Revenue and Finance Committee Releases Kowalko Personal Income Tax Proposal
On Wednesday, April 5, the House Revenue and Finance Committee considered House Bill 109.  This bill would lower the current tax rate by .05% for each bracket, create a new tax bracket at $125,000 with a rate of 7.05% and an additional bracket at $250,000 with a rate of 7.80%. The bill would also provide a tiered reduction of the otherwise available itemized deduction based upon the individual's taxable income.

Current tax brackets under Delaware’s personal income tax statute are as follows:
Delaware Taxable Income Rate
$0 - $2,000 0.00%
$2,000 - $5,000 2.20%
$5,000 - $10,000 3.90%
$10,000 - $20,000 4.80%
$20,000 - $25,000 5.20%
$25,000 - $60,000 5.55%
$60,000+ 6.60%

This legislation is not a part of the Governor’s package of tax increase recommendations.  Instead, the legislation is sponsored by Representative John Kowalko (D-Newark) as well as Senator Margaret Rose Henry (D-Wilmington), Representatives Helene Keeley (D-Wilmington), Keeley (D-Wilmington) and Potter (D-Wilmington).    
Governor Carney recommended the following approach in his budget proposal:
  • Eliminate itemized deductions in Delaware;
  • Increase the standard deduction more than 50% Increase each tax bracket by 0.2 to 0.4 percentage points, with top rate rising to 6.8 percent.
  • Increase the eligibility age for additional personal credits and retirement income exclusions from 60 to 65 in 1-year increments.
The New Castle County Chamber of Commerce, Delaware State Chamber and Central Delaware Chamber testified in opposition to the bill due to concerns about capital flight, and the potential harm that the bill poses to Delaware’s competitiveness from an economic development standpoint. 
The bill was released from committee.  However, its prospects for passage are unlikely.  Passage would require a three-fifths vote in each House.  It is unlikely that the measure would garner the necessary 25 out of 41 votes in the House and even less likely that there would be 13 votes (which would require at least two Republicans) out of 21 in the Senate. 
Second Leg of Transportation Trust Fund Constitutional Amendment Released from Senate Transportation Committee
On Wednesday, April 5, the Senate Transportation Committee considered and released Senate Bill 20, sponsored by Senate Minority Whip Greg Lavelle (R-Sharpley), legislation which would require a two-thirds vote in order to shift any new operating expenses to the Transportation Trust Fund.   Currently, Transportation Trust Fund resources, which ideally should be solely dedicated to capital infrastructure costs, are also spent to cover all, or substantially all, of the operating budget for the Delaware Department of Transportation. 
Constitutional Amendments require passage by a two-thirds vote in both houses in two consecutive General Assemblies.  The first leg of this proposed constitutional amendment passed as a part of a deal brokered in order to pass an infrastructure funding package.  Prospects are good for passage of the bill this year.  The bill will help preserve capital funding for capital purposes. 
The New Castle County Chamber of Commerce, Committee of 100, Delaware State Chamber of Commerce, and other business organizations expressed their support for the bill. 
Marijuana Legalization before the General Assembly
On March 30, Representative Helene Keeley (D-Wilmington) introduced House Bill 110, legislation which would legalize, tax and regulate marijuana in a fashion similar to that of alcohol in Delaware.  Proponents of legalization estimate that the bill could garner some $22 million in revenue for the State of Delaware.  Some key provisions of the legislation follow:
  • Would establish the Division of Marijuana Control and Enforcement, an agency which would be patterned after the existing Division of Alcohol and Tobacco Enforcement;
  • Licensure fees and an excise tax would be created by the Act.
    • The bill would establish a licensing structure for retail marijuana stores, marijuana testing facilities, marijuana cultivation facilities and marijuana product manufacturing facilities. 
    • The application fee for licensure will be as much as $5,000, which mirrors the licensing fee under the Delaware Medical Marijuana Program.
    • Within 10 months of the Act’s effective date, applications would be accepted from Compassion Centers and Safety Compliance Facilities to operate a retail marijuana facilities, marijuana product manufacturing facilities and marijuana testing facilities.
    • Localities would have the right to license and set rules for marijuana facilities operating within their jurisdictions. 
    • The licensing process would substantially mirror that of the alcohol licensure process under Title IV of the Delaware Code.
  • Funds derived from taxation and licensure revenue would be deposited to the Marijuana Regulation Fund, which the Act would establish, apportioned as follows:
    • All costs of the Division of Marijuana Control and Enforcement; of the remainder:
      • 20% Department of Education
      • 10% Department of Health and Social Services for use in treatment and prevention of alcohol, tobacco and marijuana abuse
      • 10% Department of Health and Social Services for education campaigns targeted at youth, educating them on the risks of alcohol, tobacco and marijuana use.
    • The Marijuana Regulation Fund would consist of revenue derived from taxes and license fees collected, as well as fines imposed under the Act.
  • Other provisions include:
    • Persons over the age of 21 would be permitted to possess and transport under 1 ounce of marijuana for personal use.
    • The bill would NOT allow persons to grow marijuana.
    • Civil penalties and other sanctions which currently exist in the Code would apply to individuals under 21 years of age who possess or use marijuana and those individuals who violate this Act.
    •  Limits on the hours and operation of marijuana licensees, concerning hours of business, holiday sales, etc. would substantially mirror those of alcohol licensees.
    • The Act would prohibit the sale of marijuana on premises licensed for alcohol sales.
    • Employers and the owners of certain residential properties would still be able to prohibit the use of marijuana as a condition of employment, lease, etc.
    • The Act would establish the Delaware Marijuana Oversight Committee, with the following duties:
      • Coordinate the implementation of the Act with the Delaware Medical Marijuana Program, the Division of Public Health, the Division of Substance Abuse and Mental Health and the general public;
      • Review the effectiveness of the Delaware Marijuana Control Act with regard to the safe operation of licensed facilities, the impact of the Act on public safety and the impact of the Act on public health;
      • Issue an annual report to the Governor and the General Assembly setting forth all matters of interest and all statistics concerning marijuana control and regulation in the State of Delaware, to include:
        • Number of licenses of each variety issued in the state
        • Amount of marijuana and marijuana products sold in the state; and
        • The number of each type of licensed granted and those cancelled;
    • The Act would also create a tax deduction for all ordinary and necessary expenses paid or incurred by licensees.  This deduction would be intended to help offset the inability of licensees to deduct expenses under the Federal Tax Code, and, by extension, under the Delaware State Tax Code.
The bill is currently assigned to the House Revenue and Finance Committee.  It requires a two-thirds supermajority vote for passage (27 out of 41 in the House and 14 out of 21 in the Senate).   Prospects for passage are at this point unclear. 

Governor Carney has indicated that he does not favor full legalization at this time, indicating that he would prefer to allow more time to study the effects of legalization in the eight jurisdictions which have taken this step, including Colorado, Maine, Massachusetts and Washington, D.C.  His administration is also still working to fully implement Delaware’s medical marijuana law and is still adjusting to the decriminalization of marijuana under Delaware law in 2015.  The current state of law with regard to cannabis in Delaware is as follows:
  • Possession of less than one ounce of marijuana, in Delaware, is subject to a civil penalty of no more than $100 per instance. 
  • Possession of one ounce to less than 175 grams of marijuana is a misdemeanor, punishable by three months imprisonment and a fine of $575. 
  • Possession of more than 175 grams is a felony, punishable by 3-to-25 years in prison.  Penalties increase as quantities increase.   
  • Medical marijuana is legal, per the provisions, requirements and restrictions set forth in 16 ­Del. C. Ch. 49 A
Delaware Economic Development Office Working  Group Issues Report
The working group tasked by Executive Order No. 1 (Carney) with making recommendations on the restructuring of the Delaware Economic Development Office and the establishment of a public-private partnership, has issued its report.  The executive order specifically tasked the group to provide the governor with a report which included the following elements:
  • Policy recommendations regarding the use of a public-private partnership to foster economic development in Delaware, particularly in strengthening the environment for entrepreneurs and innovative companies;
  • The features essential to the success of any recommended public-private partnership, including a proposed governance structure and an estimate of necessary appropriations from the General Assembly;
  • A proposed timeline for implementing any policy recommendation; and
  • A draft of any necessary implementing legislation.  (The Carney Administration will draft any such legislation).
A copy of the report can be found at the following link:  
Artificial Island Power Line Cost Allocation Opposed in Senate Joint Resolution
A projected planned by PJM, the entity responsible for maintaining the regional power grid, and which is estimated to cost some $410 million, was called into question by the General Assembly via Senate Joint Resolution 1 on March 30. 
The project would involve connecting a substation in Red Lion Delaware to New Jersey’s Artificial Island.  Based on the allocation formula developed by the Federal Energy Regulatory Commission, 90 percent of the cost would be borne by Delaware residents.  Legislators, the governor, the Public Advocate and numerous business and community organizations take issue with the projected cost to Delawareans, particularly given the fact that 90 percent of the benefit would accrue to residents of states other than Delaware.   The proposal could add as much as $2-to-$4 per month to residential bills. 
PJM is one of 12 entities around the country which are charged with maintaining the power grid in various regions.  PJM asserts that they do not control who pays the costs or how the burden is allocated.  They have voted to proceed with the project.  They voted to proceed with the project on Thursday, April 6. 
Senate Joint Resolution 1, sponsored by Senate Energy Committee Chairman Harris McDowell and House Energy Chairman Charles “Trey” Paradee, opposes the cost allocation of the Artificial Island Transmission Project as unfair and unduly burdensome to the ratepayers of Delaware and urges PJM to join with Delaware in contesting the cost allocation in proceedings pending before the Federal Energy Regulatory Commission. 
Business and community groups have joined lawmakers in opposition to the cost allocation.  The matter is now before the FERC.  A News Journal editorial dated March 31 recommended that stakeholders in Delaware take the matter to court.  In recent years, federal courts have taken issue with FERC cost allocations.  A case was filed in 2009 by utilities in Midwestern states over cost allocation for a $6.6 billion project which would have primarily benefited utilities in Eastern states.