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Beyond the Budget: Seeking Solutions in Delaware’s Education System

By: Jane Brady, Chair, A Better Delaware

 This is the third in a series of articles that will take a look at how the policy principles and legislative priorities of A Better Delaware fared in the last legislative session, which ended on June 30.  We have written over several years now about our perspective on healthcare, education, energy, the economy and workforce in Delaware, as well as the need for more accountability and better transparency in the way government works in Delaware. 

In this series, we will look at how the action the legislature took promotes or inhibits achievement of those policy objectives we feel are important to make Delaware a better place for families, workers, businesses and the community at large.

Education Policy

You may already know all the numbers. Delaware is in the top ten in spending on education, and the bottom five in student performance.  We have over a dozen schools with single digit proficiencies in math and reading, most of them minority majority.  Delaware spends over $20,000 per student per year, according to the latest figures from the Department of Education.  There has been an inverse correlation between increases in spending and lower achievement scores – as spending has gone up, performance has gone down.  The Governor just recommended, and the General Assembly passed, a budget that increases spending in education significantly, and includes $3 million for “literacy specialists,” who will teach teachers how to teach reading.

So, what is the good news? Well, there really is a science to teaching reading, and many new teachers were never taught how to teach it the way you probably learned – phonics is the key.  So, we commend the attention to reading. After all, if you can’t read, you can’t learn.  But, once again, the Governor and legislature came up short. They did not provide specific goals for everyone – students, teachers and parents to reach – proficiency in reading at grade level by grade 3. That has proven to be the “secret” to success in Mississippi, a state that performed miserably for decades, but instituted a law that students cannot earn that moniker “4th grader” until they can read at a third-grade level. Mississippi, 6 or so years later, bests us by a mile. We need to establish goals and consequences in order to make change.  Just “teaching children to read” has failed Delaware students for some time now.

We had the opportunity to address some of the issues and bring transparency to the failings of these schools in the last General Assembly session.  The bill, HB 192 was proffered to require these poorly performing schools to present both short- and long-term plans to improve student performance to the Department of Education, and for the Department to issue an annual report on improvement (or the lack thereof).  While it passed in the House last year, and successfully passed through both the House and Senate Education Committees with bipartisan support, it has now stalled in the Senate.  Fearing that the bill will be a step toward school choice, the majority refused to bring it to a vote.

How arrogant! Because the other good news is that there are schools in Delaware that are succeeding. They just, mostly, are not public schools. You may have read in our previous newsletters that we at A Better Delaware support school choice, to give the poor students who are assigned to these poorly performing schools by a government that does not seem to be able to get the job done, a choice.  Other jurisdictions which have tried a choice program, enabling students to attend a private or parochial school of their choice, have seen remarkable gains in student success. And, we have proposed ways to offer choice without taking money out of the public schools. Our current education system, bloated and ineffective, is consigning children who are required to attend poorly performing schools, solely by virtue of their zip code, to more difficult lives than any of them deserve.

We can improve education in Delaware, but it requires leadership that recognizes that more money is not the answer. Specific goals, consequences and rewards with respect to those goals, and more transparency and choice all will serve the children of Delaware better. Better job opportunities, better financial security and more personal satisfaction with their lives. The children of Delaware deserve that. The General Assembly should not stand in the way.

Jane Brady serves as Chair of A Better Delaware. She previously served as Attorney General of Delaware and as a Judge of the Delaware Superior Court.

 

 

The Reality of Delaware’s Unrealistic and Expensive Energy Mandates

By: Jane Brady, Chair, A Better Delaware

 This is the second in a series of articles that will take a look at how the policy principles and legislative priorities of A Better Delaware fared in the last legislative session, which ended on June 30.  We have written over several years now about our perspective on healthcare, education, energy, the economy and workforce in Delaware, as well as the need for more accountability and better transparency in the way government works in Delaware. 

In this series, we will look at how the action the legislature took promotes or inhibits achievement of those policy objectives we feel are important to make Delaware a better place for families, workers, businesses and the community at large.

Energy Policy

Delaware’s government has made decisions in successive sessions with regard to energy that impact the poorest of our citizens most negatively. Those families in our state that struggle with the costs of basic necessities, such as food and housing, are now going to face additional costs for electricity and transportation.

The electric vehicle mandate which the General Assembly enacted would require families to pay about $10-20,000 more for a car that is electric than they would for a gas fueled car.  The cost of installation of a charger at your home is significant. But, of course, if you live, as many lower income people do, in an apartment or row home in the city, you won’t be able to charge your electric car at home. Additionally, there are very few public places you can do so.  Public transportation is limited, and not a realistic option for many to use to get to work or the store.   So, apart from the fact that we at A Better Delaware don’t think government should tell us what kind of car to buy, the impacts of this policy have been underappreciated.

And many of the wealthier among us who purchased an electric vehicle are having second thoughts. Why? Because electric vehicles lack the range, safety and ease of refueling that makes getting from here to there comfortable and reliable. The realities of the limited range, costs, safety concerns and lack of reliability are hitting home, and they are returning to gas powered cars.

But government is not learning any lessons from their experience, or others.  Recently, the Delaware legislature passed legislation that would mandate conversion of school buses from gas to electric.  They should learn from other school districts’ experiences. Just in March, it was reported that 20% of the entire fleet of electric school buses was not operating on any given day, according to the Director of the New York Association for Public Transportation, because of problems with the electric buses or their charging devices. Compare that breakdown rate with diesel buses which have a failure rate of 1 or 2%, and it’s easy to see that diesel is more reliable. More cost effective, too. The average cost for a diesel school bus is reportedly between $100-150,000.  Electric school buses cost between $3-400,000.  And that lack of reliability may also affect our poorest students, many of whom already have school attendance issues. Absenteeism is an increasing problem, exacerbated by the lack of stewardship in the delivery of education resources to Delaware students during the pandemic. Many of the poorest students rely on a bus to go to school. Reliable transportation is a necessity -they don’t have the independent means to provide their own transportation. The General Assembly needs to accept the reality that technology is not where they aspire it to be and until it is, they should spend our limited tax dollars responsibly, providing the most good to the greatest number of Delawareans.

But electric vehicles aren’t the only failed energy policy objective that is unrealistic and expensive. This past session the General Assembly passed the Delaware Energy Solutions Act that prioritizes procurement of offshore wind energy. Offshore wind is an intermittent energy source. That means it is not available all the time.  Any energy policy that relies on wind, or solar for that matter, must have provisions for the gaps in reliability these sources inherently have.

Offshore wind is expensive. When the legislature previously passed a bill that would require 25% off all the electricity used in Delaware to come from renewable sources, wind and solar, they put a 3% cap on any increase that customers could be required to pay as a result.  Currently, according to an analysis by the Caesar Rodney Institute, the cost is twice that to customers. In the past, a Governor’s Working Group on Offshore Wind found that offshore wind was simply too expensive.  The costs of offshore wind have not gone down since then.  So, what can we expect if this policy is implemented in Delaware? Higher costs for electric, huge subsidies for companies willing to put your money on the line when they take the risky venture to try to produce electric in offshore turbine fields, and uncertainty that our electric will be reliably available in the heat and cold.  Not much of a bargain.

Finally, with regard to offshore wind. The public needs to know that the Governor has signed an agreement with a company that has a commitment to provide electricity from an offshore wind farm to Maryland. The agreement is not for electricity. The agreement is to allow the company to bring four huge conduits of cables from the wind turbines ashore in our state park at 3Rs Road.  Why? Because no town or government in Mary land would agree to let them come ashore there. But our environmental concerns do not stop at the ocean’s edge. They also plan to transmit the electricity the turbines generate through those same conduits, buried only 3-7 feet deep, under the inland bay to property they bought adjacent to the Indian River Power Plant. There are opportunities to be heard on this issue. To submit your comments, go to: Public Comment Protocols – DNREC (delaware.gov).

Exercise your right to be heard about you concerns about the environment in our state, the health of our inland bays, the integrity of our beaches, and question why we would be willing to do something to bring electric to Maryland customers that no one in Maryland was willing to do.

Jane Brady serves as Chair of A Better Delaware. She previously served as Attorney General of Delaware and as a Judge of the Delaware Superior Court.

 

From Transparency to Quality: A Better Path for Delaware’s Health

By: Jane Brady, Chair, A Better Delaware

This is the first in a series of articles that will take a look at how the policy principles and legislative priorities of A Better Delaware fared in the last legislative session, which ended on June 30.  We have written over several years now about our perspective on healthcare, education, energy, the economy and workforce in Delaware, as well as the need for more accountability and better transparency in the way government works in Delaware. 

In this series, we will look at how the action the legislature took promotes or inhibits achievement of those policy objectives we feel are important to make Delaware a better place for families, workers, businesses and the community at large.

Healthcare Policy

Our principles at A Better Delaware regarding healthcare include promoting more competition, assuring better billing transparency and eliminating the obstacles to quality of care and lower costs.

The primary healthcare focus of the General Assembly and the Carney administration in this past legislative session was the cost to the State. Two primary initiatives addressed the state’s cost to provide health care to employees and retirees.

The first was HB 350, which placed a panel of 5 persons, selected through a political process, in a position of oversight of hospital budgets. While initially opposed by every hospital in the state, ultimately, the bill was amended slightly, and the hospitals were silent. The bill passed.

There are serious issues with this approach. The impact of a legislature prepared to put a political panel in charge of finance decisions in a private or non-profit business cannot be understated. During session, legislators were discussing what other businesses contract with the state and whether a financial review of their profits and spending choices might be appropriate.  Imagine a builder bids on a project and a panel of political appointees ask, “This price is awful high. How much compensation did you take home last year?”

The Governor was squarely behind this bill but should have appreciated the chilling effect this will have on new businesses locating in Delaware. And, when over a third of our revenue depends on our corporate friendly business climate, that impact can affect all of state services.

The second issue was the initiative to thwart the Governor’s plan to move retirees to a Medicare Advantage Plan from the current state health care plan.  There was a loud and effective resistance, and the General Assembly responded with a bill to prevent such a move. The Governor vetoed the bill, and in a rare, bi-partisan moment, the General Assembly voted to override the veto.

There are real shortcomings to the State’s approach to health care costs.  Rather than take an overall perspective of what procedures the state is covering, what contributions the insured are making, and whether those contributions are fair and comparable to what privately insured individuals pay as a portion of their premiums to employer plans for instance, Governor Carney determined to use a sledgehammer on hospital budgets and force retirees into an alternative plan to the one the state already provided

There are so many options the Administration did not advance or consider. First, pass along increases in health care as they occur. State insured individuals have never paid comparably to private employees. Everyone knows costs go up, and expects to pay more for healthcare, like every other commodity. Waiting until there is a dire need and imposing a huge increase all at once is not responsible management.

Second, remove the need for a certificate of need (now called a Certificate of Public Review in Delaware), which studies have repeatedly shown increase the costs of, and limit access to, health care.  That law requires that some of the very people who provide health care services in Delaware approve new facilities and services by their competitors. Why wouldn’t that restrict competition and limit options? The result?  The very same procedures can cost 30% less in neighboring states, that have competition.

The State should enforce and expand the laws we already have in place requiring transparency in billing and allow for patients to choose who provides their MRI, knee replacement or heart surgery. Costs vary widely between providers right here in Delaware, but patients cannot easily find the costs. It is expected, if you buy a couch or beef roast, that you will know the cost before you seal the deal. But you don’t know what a procedure will cost you before you undergo it. That does not make sense, particularly when there are differences in price between qualified providers.  The State could cut health care costs by providing that information to its insureds.

Finally, the State should take responsibility for the choices it makes regarding what procedures to cover, and for what amount.  At the very same hearing at which nearly $700,000 was appropriated for the costs of establishing the hospital budget review panel, the Committee voted to expand coverage to include all abortion and related services and to eliminate all copays for all such services, thereby increasing, in one vote, the costs to the state for health care insurance. Without comment on the subject that was covered, the reality is that you cannot continue to expand coverage without increasing costs, yet they did not, while in the same breath, blaming the hospitals for the high costs to the state for health care.

Jane Brady serves as Chair of A Better Delaware. She previously served as Attorney General of Delaware and as a Judge of the Delaware Superior Court.

 

 

 

 

Unlocking Education Freedom: A Call for Real Choices

By: Jane Brady, Chair, A Better Delaware

This week we celebrate freedom. Freedom from the oversight of a King far away. Freedom of speech, religion and assembly, and the other freedoms protected in the bedrock of our nation, our Constitution.

But we can celebrate no such freedom in education.  There are restrictions on our freedoms in education, outdated and unnecessary, intruding restrictions.

Think about it. The government does not tell you where you have to get your car fixed, but they do tell you where you have to send your child to school. Imagine if the mechanic you were assigned didn’t have all the parts you needed and some were delayed, but eventually you leave the garage with a car that performs at 50%. Sadly, many of our kids graduating high school in Delaware are not performing in reading and math at even 50%.

And this is not a new situation. For at least a decade, the academic performance of Delaware students has been declining.  Are these students any more prepared for the long journey of their careers, their lives, than a car that is operating at 50%?  Clearly, the quality of the journey is compromised.

So, what are our options?  As a parent, an employer or a customer, we all have an interest in a confident community. A community in which everyone can realize their potential, give and contribute to the well-being of others and find personal satisfaction from their life.  A sound education provides the foundation to make those objectives a reality.

How can your child break free of this system that is not serving them well? Currently, there are a few options.  If you have the means, you can choose to send your child to a private or parochial school. If you have the time, energy and skill, you can home school your children.  If you are lucky, your child can be selected in a lottery and attend a charter school. And you can apply to get your child transferred to a different public school. SchoolchoiceDE.org has all the specifics.  Of course, the deadline to apply for the 2024-2025 school year expired on January 10, 2024, so if you want to choose a different public school through the current choice program, be sure to plan quite far ahead!

Are you satisfied with these choices? Probably not.  Do they really give you the freedom to assure your child gets the best education for them? Definitely not.

We at A Better Delaware believe that parents should have real choices about where to send their kids to school. And there is a way to provide choice – Opportunity Scholarships.  Although not currently available in Delaware, these scholarships are provided either by the State, directly to the student’s choice of school, or through donations to a scholarship fund by individuals and businesses who would receive a portion of the amount they donate as a credit against the taxes they owe the State.

Pennsylvania has such a program to which businesses can donate, and which provides, among other things, tens of millions of dollars to low- and middle-income families to attend the school of their choice.  The program is so popular, there is a waiting list to donate.

The sad reality is that there are nearly a dozen schools in Delaware with academic performance in the single digits. That means, out of 100 students, fewer than 10 can read or do math at grade level.  Yet, the Department of Education recently reported that the State spends an average of over $20,000 per public school student per year. Delaware is in the top 10 states in the nation in spending, and yet we are 4th from the bottom in student academic performance.

That is not acceptable. Clearly the current education system, with the alternatives currently available, is not working for the students of Delaware. They deserve better. Parents deserve the opportunity to provide a better education for their children. Delaware deserves a better prepared, work- ready community of educated young people.

We have tried to just spend more, repeatedly, and that is clearly not the answer. A new alternative, Opportunity Scholarships, is needed to give the children of Delaware their best chance at success, not only in school, but in life.

Jane Brady serves as Chair of A Better Delaware. She previously served as Attorney General of Delaware and as a Judge of the Delaware Superior Court.

Inspector General Will Bring Transparency to Delaware Government

By: Jane Brady, Chair, A Better Delaware

The operation of our state government can be complex, confusing, even overwhelming, if you are not directly involved in the day-to-day development and implementation of the expenditures. But there are some basic standards that government should meet in making sure the public is informed about the priorities of their leaders and the way the public’s funds are being spent.  Transparency and accountability are the hallmarks of a government of good integrity.

That is lacking in Delaware today.  Even with regard to how much money the state will spend this year, we are not getting the full story.  The Governor proposed a budget of about $8 million, and the Joint Finance Committee recently released an operating budget of $6.1 million. There are some capital expenditures and financial support for non-profits that will be added. But that is not the entire story.

You may have heard about the more than $4 billion dollars Delaware spent in surplus funds in the past three years, provided by the federal government, largely due to Covid funds.  But Covid did not begin the provision of federal supplements, and they will not end when the Covid funds run out (we are spending the last of them now). According to the National Association of State Budget Officers, Delaware actually spent between $7 and $10 billion more than our “budget” each year since 2019.

And recently we learned that we have not accounted for, or spent, all those funds wisely or appropriately.  Were you aware that nearly $200,000 was embezzled from our state unemployment insurance funds? Neither were the State Auditor or law enforcement.  For over a year, no information was provided by the agency about the loss.  The facts only surfaced when an auditing firm advised they could not perform an audit because the accounting of the funds was in such disarray

In its annual report, Truth In Accounting, which evaluates the 50 states’ financial transparency and scores each state, awarded Delaware 74 out of 100 points, and ranked our state 26th. The Report found that a factor in that ranking was failure to accurately state our assets and liabilities.

If we count on the government “players” to let us know what is going on, we will not learn the facts. We need to have an independent, non -partisan Office of Inspector General (OIG).  According to a report by WHYY, such a concept has been the subject of discussion since 2007.  Amid great fanfare, a bill was introduced to establish such an office. The bill stated that the “sole mission [will be] to investigate and prevent fraud, waste, mismanagement, corruption, and other abuse of governmental resources. The OIG will “protect the health and safety of Delaware residents, assist in the recovery of misspent or inappropriately paid funds, and strengthen government integrity and the public trust in government operations.” That bill has stalled.

You may think that the State Auditor would take care of finding the mismanagement abuse or fraud in the state agencies. After all, the mission of that Office is to provide evaluation of the state’s fiscal accountability and public program performance. But historically, there has been consistent reluctance to share information with our State Auditor when discrepancies are discovered Given that the agencies have not shared information as appropriate with the Auditor, an independent non-partisan position of Inspector General is needed in Delaware, which will have the ability to investigate and issue subpoenas for information relevant to their duties. We urge you to contact your legislator and tell them you want them to vote for SS1 for SB21, the Office of Inspector General.

Jane Brady serves as Chair of A Better Delaware. She previously served as Attorney General of Delaware and as a Judge of the Delaware Superior Court.

 

 

Delaware: No Longer the First State

By: Jane Brady, Chair, A Better Delaware

The Urban Institute publishes the State Economic Monitor that tracks and analyzes economic trends at the state level.  Recently they published the numbers relating to state gross domestic product.  You may recall, from previous newsletters, that the gross domestic product is the value of the goods and services Delaware businesses produce. For the fourth quarter of 2023, Delaware was dead last. Not only was Delaware last in the nation, but Delaware was also the only state in the country in which the gross domestic product decreased. Every other state in the country grew their productivity in the fourth quarter of 2023.

So, what does that decrease in gross domestic product portend for the state’s economic future? Well, our state’s budget (spending) depends on revenue from business and personal taxes, as well as fees imposed for such things as auto inspections, real estate transfers, etc.  When business isn’t producing and growing, and is shrinking, fewer taxes are owed, fewer employees are paid, and the expectation of future revenue is placed in jeopardy.

Our economic productivity has not improved in some time. Our GDP was expected to remain static before the pandemic, and since, it has repeatedly declined. That reality did not stop Governor Carney from recommending, just a few months ago, a budget with an increase of over 8% in spending.  And among the candidates for governor in this year’s election are several who propose significantly more spending.

Delaware has been on a spending spree that is not supported by our revenue. During the past three years, Delaware has spent nearly $4 billion in surplus money we received because of the federal government’s excessive granting of funds during the Covid pandemic. Indeed, some of the funds for the expanded budget the Governor just recommended comes from residual federal funds.  Much of that federal money went to new programs, or the expansion of some, such as unemployment and Medicaid eligibility, which remain in effect. However, the federal money is now gone, and state revenue will be required to support those programs. That revenue simply is not likely to be there.

To his credit, Governor Carney has supported the Smoothing Fund, which is a stabilization fund into which the government has placed money to help the state through difficult economic times. He did so in the face of opposition from his own party. That program is established by Executive Order.  Governor Carney ‘s legacy to our future financial stability as a state should be to present that concept to the General Assembly in the form of a bill, and secure its passage, before he leaves office.

Much of our state revenue comes from the fees and taxes corporations pay to be incorporated in Delaware.  Many of them do not do business here, but we benefit from their choice of incorporation state.  Recent events threaten that revenue as well. You may have read that Elon Musk moved his corporation from Delaware as a result of some court decisions and the eroding business climate in Delaware.  Additionally, the passage of a bill creating government oversight of hospital budgets – private business entities – has the legal community abuzz with concern about for businesses being subjected to government oversight in order to do business with the government. And concerns even go beyond those which actually do business with the State, to those which choose to incorporate here.

The purported purpose of the oversight bill was to try to cut the cost of health care expenses the State incurs.  The intrusion into private fiscal operations is unprecedented (except for a plan in Vermont that, according to nearly all accounts is failing miserably).  The impact on business and our corporate revenue has not yet been felt, but concern is high.

The answer, of course, is to cut costs if they are not sustainable. The State seems unable to even contemplate that course. Incredibly, at the same hearing at which funding was approved for the previously mentioned oversight committee, the same legislators voted to expand Medicaid coverage and eliminated co-pays for state-insured patients for certain health services.

And, the State has failed to pass on increases in costs to those insured under State plans.  Failure to do so responsibly and periodically has resulted in opposition to huge increases of 25% or more in a single charge. The State owes it to the employees and other insured to be transparent and share the increases fairly.  Everyone understands there are increases in costs for every product and service, and while no one likes to pay more, the reality is they do, every day, everything else.

The state cannot sustain the spending it has incurred with decreasing revenues.  The Governor and the General Assembly need to take a close look at how and where they are spending our money and make some responsible decisions. That is only fair, after all. That is what they expect of the rest of us.

Jane Brady serves as Chair of A Better Delaware. She previously served as Attorney General of Delaware and as a Judge of the Delaware Superior Court.

 

 

 

 

 

 

 

 

 

 

Building Strong Readers in Delaware: Applying the Science of Reading

By: Dr. Tanya Hettler, PhD, Center for Education Policy

In 2022, Delaware passed HB 304, which has been called the Science of Reading Bill. This legislation mandates three annual screenings each year in kindergarten through third grade to look for students at risk for developing reading difficulties. It requires districts and charter schools to provide literacy interventions to students with a potential reading deficiency from a list maintained by the Delaware Department of Education. This is a commendable effort to address Delaware’s literacy crisis, but more must be done.
With only 41% of Delaware students reading proficiently, merely identifying students once they begin to struggle with reading is not sufficient. The majority of Delaware students are struggling to read. Therefore, we must use an evidence-based reading curriculum to teach early literacy to all students, and this instruction must be done proactively from day one in kindergarten. If we wait until reading problems are detected, it will be too late.
The National Institute for Child Health and Human Development’s research on reading has consistently shown that the “Science of Reading,” which includes phonemic awareness, phonics, fluency, vocabulary, and comprehension, is essential for developing strong literacy skills. By teaching these principles to all students, we can prevent deficiencies rather than try to fix them after they develop. Once students learn the wrong way of “reading,” it is extremely difficult to correct it.
Over the past several decades, most students in teacher preparation programs were taught that students can read without explicit instruction. Strategies such as “whole language” or “balanced literacy” instruction were being taught. These methods, which encourage children to figure out how to read by looking at books and guessing what the words are rather than sounding them out, actually impede students’ ability to learn to read.
In fact, brain researchers have found that the neural pathways in the brain that allow students to read do not exist in the pre-literate brain and, thus, must be built through explicit instruction and much practice. Learning to read is an extremely complicated activity, and we have been doing teachers a disservice by not educating them on how to teach reading and doing students a disservice by not giving them systematic and explicit reading instruction.
Additionally, there is a short timeframe in which reading skills must be taught correctly to ensure students can read efficiently and with comprehension. Waiting to see if students will develop reading problems is not an effective way of providing early literacy instruction.
I applaud Delaware legislators and the Governor for passing a Science of Reading Bill. But I also urge the Delaware Department of Education, teacher colleges, districts, and schools to ensure that teachers learn how to teach reading based on the science of reading to all students in their classes from day one. Current teachers must be re-taught how to teach students based on empirical evidence that requires systematic and explicit reading instruction. By doing this, we can ensure that every student, regardless of their initial proficiency, receives the quality education they deserve.
This will have a profound impact on the percentage of Delaware students who can perform at grade level on tests of reading proficiency. Substantial evidence indicates that this is especially crucial for students who have not been exposed to many books at home and thus have yet to begin to make the connections between letters and sounds.
A thorough implementation of the science of reading for all students should be the goal of our state education system. Implementing these changes will not only improve literacy rates but will also equip our students with the skills necessary for future success. Teaching educators how to teach reading based on the science of reading will lead to Delaware students experiencing greater success in school, which will lay the foundation for higher learning and career success and lead to a more successful and productive populace.

 

Recent Changes in Delaware Employment Law

From: Delaware State Chamber Business May/June 2024 Issue

BY G. KEVIN FASIC, ESQ. AND ANTHONY N. DELCOLLO, ESQ.

IN RECENT YEARS, the Delaware General Assembly has introduced and passed legislation aimed at strengthening employee rights. While these efforts are positive for employees, some aspects create unintended consequences for small and mid-sized businesses. Increased regulatory complexity could make day-to-day operations more burdensome, potentially discouraging new business formation and impacting the growth of existing companies. These changes might make hiring decisions more challenging for employers, impacting overall workforce levels in the State. Some specific examples include:

SB 145 (signed): This new law clarifies and establishes caps on damages allowed in claims of employment discrimination. The caps exceed what is allowed under federal law. The likely result is that claimants will elect state courts to pursue these claims.

SS1 for SB 102 (signed): Contrary to decades of precedent, and federal law, this new law mandates prevailing wage rates on public works construction projects be paid to workers who fabricate custom components, regardless of where such work is performed. However, how this will be enforced when the work is performed out-of-state, by workers who never set foot in Delaware?

SB 27 (signed): This new law increases the statute of limitations for wage and other employment claims from one year to two years, changing decades of precedent.

HB 205 w/ HA3 (signed): This new law creates a state-sponsored retirement plan for employees that is to be “facilitated” by employers.

SS2 for SB1 (signed): This law, signed in 2022, creates an entirely new paid family and medical leave program that applies to employers with ten or more employees. Many employers are still unaware of this new law and its requirements. In addition to new tax burdens, this law provides for stiff penalties for noncompliance.

SB 35 (signed): This new law creates the crime of “wage theft” and subjects all Delaware employers (including owners and officers, individually) to criminal liability for various “wage violations.” For instance, improperly classifying an employee as an independent contractor is a violation.

SB 233 (pending): This Bill would establish employment protections, including mandatory employment by successor employers, for workers in the service sector.

HB 17 (pending): This Bill would mandate an hour of earned sick or safety time for every thirty hours worked by an employee, potentially conflicting with SS2 for SB 1, above.

SB 229 (pending): This Bill would allow former employees access to their former employer’s personnel file (including medical records) and expands what must be in the file.

HB 258 (pending): Overturning decades of precedent, this Bill would require domestic workers (including babysitters, housekeepers, nannies, and others) to be paid at least minimum wage.

The new laws and pending bills listed above are a sample of the efforts to protect employees from their employers. Whether they are necessary is a different question. What is clear is that employers, regardless of industry or size, have increasing regulatory obligations. Stay tuned for how these play out once enforcement begins.

G. Kevin Fasic, Esq. is managing principal of Offit Kurman’s Wilmington office and Anthony N. Delcollo, Esq. is a principal of Offit Kurman’s labor and employment practice group.

The Myth of “Green and Clean” Renewable Energy

By: Dr. David R. Legates, Advisory Board Member, A Better Delaware

Delaware is embarking on an ambitious plan to reach NetZero—zero emissions of carbon dioxide—by 2050 and reduce emissions by half by 2030.  The Legislature has already begun to propose numerous proposals to enact draconian legislation to achieve this goal including HB99, passed in 2023, which blames carbon dioxide for potentially disastrous climate change.

Some Delawareans, based on a somewhat one-sided information flow, believe that even if carbon dioxide emissions are not responsible for changes in our climate, reducing our dependence on oil, gas, petroleum, and other forms of fossil fuels will be good for the environment.

As a result, Delaware’s farmlands in Kent and Sussex Counties are being covered by solar panels. Proposals to construct offshore wind turbines and to run their new power lines through our state park or Fenwick Island to connect to the electric grid are being proposed.  We are told that, in the end, our environment will be better for the eyesores these proposals would create.

But will it be better?  Since “climate change” was still called “global warming”, media reports have told us that wind and solar—so called, renewable energy sources—are both clean and green.  The truth is, they are neither.

When one looks at a solar panel or a wind turbine, all that is evident is that they supply solar or mechanical (wind) energy to the grid, powering our homes and our businesses.
They seem to do so without producing any harmful byproducts.  Clean and green, right?

Clean energy technology requires a wide range of metals and minerals, such as aluminum, cobalt, copper, lithium, nickel, zinc, as well as rare earth minerals such as Scandium, Yttrium, Lanthanum and a host of others of which you probably have never heard and cannot pronounce.  They are largely obtained from mines in Africa, southeast Asia, and South America.

These mines are not like those for coal, with which you might be familiar.  Open pit mining must be used to extract these metals and minerals.  Such mines are considered very dangerous to both miners’ health as well as to the local ecology and hydrology because of the harmful pollutants that are produced.

Consider lithium, an important metal used in the construction of batteries for EVs.  Mining lithium causes extreme environmental damage since the extraction process requires lots of water.  The result is a toxic lake. which leads to surface- and ground- water contamination.

Diverse places such as the Democratic Republic of the Congo and Rwanda in Africa, China, Inner Mongolia, and South Korea in Asia, and Brazil and Chile in South America are plagued with pollution arising from open pit mining, done to retrieve components of renewable energy.

In addition to the environmental concerns, the mining process in these countries should also raise flags for those concerned with social justice issues.  Slave and child labor are often used by the Chinese Communist Party which owns the mines in the Democratic Republic of Congo.  Even those who willingly work in the mines suffer from extreme health hazards.

And we may not even know the true extent of the negative impact on our environment.  Italian researcher, Enrico Mariutti, examined the true carbon footprint of solar panels, wind turbines, and batteries and found that the extraction, production, and transportation associated with these so-called “green” energy technologies produce significant amounts of greenhouse gases into the atmosphere. The nature and amount of the pollution created by these mines is reported by the mining companies themselves. Mariutti asks whether we would trust car manufacturers to certify emissions from their combustion engines or pharmaceutical companies to certify the safety of their drugs. Not likely.

He wrote “we are investing hundreds of billions of dollars a year in technologies that are low carbon only because someone wrote it down somewhere … there aren’t any national or international authorities who have bothered to understand on what basis and how this ‘paper knowledge’ was assembled.”

So, next time you see a wind turbine, a large solar panel, or an electric vehicle, think about the environmental damage that was wrought to mine the metals needed for their production, the energy that went into the mining and transport of the raw materials, and the health and social consequences of the miners who extract the necessary metals and minerals.

Are wind and solar energy really clean and green energy sources, or are they simply unreliable and expensive sources of intermittent energy?

Dr. David R. Legates is an Emeritus Professor at the University of Delaware and is the Director of Research and Education at the Cornwall Alliance for the Stewardship of Creation.  He also is an Advisory Board Member of A Better Delaware.

Retail Theft Costs All of Us

 By: Dennis Godek, Advisory Board Member, A Better Delaware

Delaware residents and businesses continue to suffer from the consequences of retail theft. In 2022, the total revenue lost to retail theft in Delaware was $285,000,000.00. Nationally, retail theft losses increased by 10.5% in the same year. When combined with losses from “Return Fraud”, Delaware businesses lost a total of $547,000,000.00 in 2022. While Delaware’s retail theft per capita rate is a little lower than the average among all states, the numbers are beyond unacceptable.

The ability of retailers to reduce retail theft has been seriously impacted by their reluctance to have employees apprehend and detain suspects due to the increase in violence directed towards employees. Many retailers, including national chains, now prohibit their employees from intervening during a shoplifting. In fact, across the country, employees apprehend shoplifters only 2% of the time.  As a result, it is not unusual to see criminals casually walk into an establishment, pick up whatever merchandise they want, and walk out of the store unabated.

Organized Retail Theft Crime is a major challenge for retailers, and for law enforcement. The retail crime epidemic has led to the initiation of criminal enterprises dealing in the purchase and sale of property stolen in retail thefts. Arrests have been made in Delaware, but the activity continues. In January and March of 2024, the Delaware State Police charged individuals with Organized Retail Theft in three separate cases in New Castle County and Sussex County. One of those charged was tied to multiple thefts in three states through surveillance camera footage. Three of those charged in Sussex County were found to be in possession of over $20,000.00 worth of stolen property. All three were from New York City. In 2017, the Delaware Department of Justice civilly sued multiple individuals for Racketeering for operating a $6,000,000.00 business which purchased property stolen in retail thefts, and then sold it to individuals.

Our criminal justice system has not adapted adequately to this serious crime problem. Incidents are often not reported and the consequences fall to the employees and business owners who bear the burden of these crimes. We have seen Target and Walmart, as well as Walgreens and CVS, close multiple stores in Delaware and across the country with retail theft as the primary reason. People lose their jobs, maybe their homes, and the taxpayers see an increase in unemployment compensation along with other economic effects.

The State of Pennsylvania saw an increase in retail theft between 2021 and 2022. The Pennsylvania Legislature took definitive action and passed a law in 2024 which indicates a sea change in the approach to retail theft prosecution. The law requires the appointment of a Deputy State Attorney General and the hiring of a team of prosecutors specifically focused on retail theft throughout the state.  The law also elevates Retail Theft to a felony level crime based on the amount of value of property stolen. This includes a Class 1 Felony for property stolen valued at more than $50,000.00. Under the law in Pennsylvania, a Class 1 Felony is punishable by a prison term of up to 20 years and a fine of up to $25,000.00. In the case of the NYC thieves captured in Sussex County, under the new Pennsylvania law, they would be guilty of a Class 2 Felony and would be subject to a prison term of up to 10 years and a fine of up to $25,000.00. This is the type of commitment to addressing retail theft we must see in Delaware.

Retail Theft may be considered a “non-violent” crime, even absent physical assaults, the consequences to businesses and employees are serious and life changing. Many of them will be sentenced to probation in our courts.  While some are attempting to legislate any consequences out of violating probation, and weakening probation to near irrelevance, we must advocate for holding criminals accountable for their actions.

Advances in technology, training for employees, collaboration with law enforcement, and efforts through business associations are all contributing to the battle against retail theft, but the criminal justice system must not be able to excuse their way out of their duty to effectively prosecute these criminals.

Dennis Godek previously served as a New Castle County Police Officer and as Assistant Chief of Career Services at the Christiana Fire Company. He currently serves as Chair of the New Castle County Fire and Ambulance Advisory Board, which is the liaison between county government and the Fire/EMS service in New Castle County. Godek is a founding member of the Delaware Statewide Active Assailant Committee, which includes Law Enforcement and Fire/EM