Monthly Archives: June 2014

Update, and bills to know about, in the Delaware General Assembly…..

The 147th Delaware General Assembly is almost finished–June 30th is the statutory deadline for it to end.  Is it doing more harm than good?  Is the pot half full or half empty?  I suppose this depends on one’s point of view.  If you believe Delaware’s government should focus on helping special interests exploit the people, the GA is doing nicely.  If, on the other hand, you think government should help and protect human beings and our natural resources, the results are looking pretty miserable.  Why?

The Governor and both houses of the legislature are controlled by Democrats, so the results can’t be blamed on Republicans.  But Governor Markell is likely Delaware’s worst governor since “Pete” Dupont (1977 to 1985), and House Speaker Peter C. Schwartzkopf is as pure an Enemy of the People as could easily be found.

Still, an important factor is public input.  That’s the point of us writing about legislation. Speak up!

HB 331 – freedom of information

Our June 11th Alert urged people to “support HB 331 to open up the University of Delaware.”  This bill was reported out of the House Administration Committee but with an amendment that gutted it.  Rep. John Kowalko says he will be back next year with another bill.

SB19–death penalty repeal

Veteran newspaperman Don Flood reports in the Cape Gazette that a bill to repeal Delaware’s death penalty passed the Senate but is stalled in the House Judiciary Committee. The prime sponsor of SB19 is Sen. Karen Peterson, but the bill has bipartisan support.  Flood concludes:

 Delaware’s handling of capital cases may be better than other states, but it’s not only imperfect, it’s capricious. Which means the death penalty has to go.

Barring some extraordinary change, that won’t happen this year, but Kathleen MacRae, executive director for the ALCU of Delaware, said that her organization and its 29 coalition partners will be back again fighting for repeal.

Eventually, the logic and justice of their cause will overcome the opposition. The only question is when.

SB 198

This bill, sponsored by Sen. David McBride, originated in the DNREC and is connected to Delaware’s scandalous “brownfields” (non) cleanup laws.  The bill is objected to by various orgs for eliminating a public hearing that is otherwise required.   A June 6th email from DNREC manager Marjorie Crofts is revealing:

“As the director who took the lead in preparing this legislation, Secretary O’Mara asked me to respond to your concerns.  This proposed legislation does not impact the public notice process for proposed and final plans.  It is limited to the state taking over remediation of a site.  Currently, if a responsible party (the person who caused the contamination) wants to go ahead and get their property cleaned up, they enter into our Voluntary Cleanup Program.  They arrange to have the work done with DNREC’s oversight.  In some cases, the responsible party stops doing the work.   If efforts on our part fail to get them moving on it, DNREC may decide to take it over and then attempt to cost recover from the responsible party.  Currently, we have to have a public hearing and then do an Secretary’s Order (assuming we prevail at the hearing).   In all our other enforcement statutes, DNREC does the order first and then the violator has the right to request a hearing.   We’ve held these hearings and have yet to have anyone put up a defense.  RPs don’t show up or don’t show up with counsel.  However, DNREC needs to prepare its case, hire a court reporter, spend funds on notices, etc.  We haven’t seen it as an efficient use of state funds.  This bill just makes it so in these cases, DNREC can issue a Secretary’s Order and the RP does have the right to request a public hearing.  And even if we take over a site, we need to public notice both the proposed and final plans and the public has the right to request a hearing on them.

The fiduciary language was put in at the request of the Delaware Bankers Association  (emphasis added by Muller) to cover lending organizations that don’t participate in the management or operation of the site as being held liable.  It was taken from the federal CERCLA and has been in place for several years at the national level.”

Note:  Crofts makes no mention of citizens wanting a hearing.  She seems concerned only with “responsible parties.”  The reason a public hearing should be automatic is that most of the cleanup plans are not cleanup plans.  They are more coverup plans.  This would take away an opportunity for the public to object.  Maybe it was triggered by the Vlasic pickle plant episode where the public objected–though perhaps not very artfully–at a big but farcicial hearing.

Of course, the DNREC never considers it “efficient” to allow public participation.  As for what the bankers want, if they take an equity interest in a property without due diligence, they should bear the responsibility.  It used to be that “if you own the property, you own the environmental liabilities” was clear and settled.  various interests have worked to dilute this, with success.

HB 286

This truly vile bill would make it easier for bill collectors to intercept tax refunds and otherwise harass people who might have debts.  Official Synopsis:

 “This bill creates a procedure under which a person who has obtained a judgment in any court of the State of Delaware may have the Department of Finance intercept tax refunds and lottery winnings to satisfy such judgment. The bill also requires any person who has a wage attachment entered against them for an unsatisfied judgment to change their employment information if incorrect. The bill also requires a person who has a wage attachment against them to inform an employer and ensure a wage attachment is occurring with the correct employer.”

I say *might* have debts because the debt collection industry has a well-established record of misconduct.  A letter on HB 286 signed by the Delaware chapter of Americans for Democratic Action notes:

“As the industry has grown, abuses and illegal — predatory — practices have proliferated.Companies are using abusive and unlawful methods to collect on debt — too often on debt that the targeted consumers do not even owe. According to an FTC analysis, only 6 percent of debt accounts purchased by some of the largest debt buyers in 2009 came with any documentation, according to an FTC analysis. Overwhelmed courts make the problem worse by awarding judgments to debt collectors based on false, forged, or misleading information. Like the robo-signing scandal that rubber-stamped thousands of illegal foreclosures, debt collection lawsuits frequently end in rubber-stamped—and erroneous—judgments against consumers.”

Given that so many Delawareans are struggling financially, why would the General Assembly want to shift the balance even more strongly against them?

Look at the roll call on HB 286.  Only SIX representatives voted against it.  Honor Role:

Paul S. Baumbach,  Gerald L. BradyHelene M. KeeleyJohn A. Kowalko Jr.Harold J. Peterman, and  James JohnsonGive them a call.

Many of those voting FOR this bill have many low income constituents and have portrayed themselves as “progressive” legislators.  This Sub-Role-of-Shame includes:

Earl G. Jaques Jr (302.834.9231),  Charles Potter Jr. (302.762.8322), and  Edward S. Osienski (302.292.8903).  Give them a call and ask them why
House Bills 327 and 328

See the commentary on these bills from Delaware ADA.

The Data Center” and HB 410

Another Markell-connected scam, this one is an attempt to sneak in a large power plant as an accessory to a data center.  (The proposed power plant is many times larger than could be justified by the electrical needs of a real data center.)  The City of Newark, and the University of Delaware, once deep into it, have been backing off under pressure from outraged citizens.

But a scam of this size has broad appeal and a lot of pressure is being brought to bear on the City and the University to stay on board.  For instance, ever-troublemaking Sen. Harris B. McDowell has cooked up a scheme to withhold $3 million of state money from the University until it caves.

House Bill 410 would shut down Newark’s Alderman’s Court.  There are 6 such local courts in Delaware, often perceived as moneymakers because the local governments get to keep the fines levied.  In 2009 the Newark court reported a caseload of 15,888, about as many as the other five put together. HB 410 targets only Newark, an obvious attempt at intimidation.  Rep. John Kowalko described HB 410 as “an intolerable abuse of the power of the legislature.”

The dishonor role of legislators sponsoring this bill:  (Home phone numbers listed.  Really, seriously, call these people and let them know how you feel about HB 410.)

Rep.  Michael P. Mulrooney (302.322.1249)

Sen.  Harris B. McDowell III (302.577.8744)

Rep. Dennis E. Williams (302.373.0115)

Ending with a piece of good news

Do you remember the scheme to put an incinerator just outside the City of New Castle?  This was, per usual, promoted by the Delaware Economic Development Office and some in the DNREC.  Green Delaware insisted the proposal was an incinerator under Delaware law and thus not allowed at the proposed location.  The DNREC eventually agreed.  See the official letter here.    Thanks to Amy Roe of the Sierra Club for keeping up with this.  Two other proposed incinerators in Sussex County still threaten.

Alan Muller

Action Alert: support HB 331to open up the University of Delaware

But first, a couple of updates:

Best entry so far in the “What’s the grossest lie Dave Small ever told?” contest, from Matt Del Pizzo, former president of Delaware Audubon:

“During the fight for scrubbers at the refinery in Delaware city, it was a stunning lie. The Minner administration was going to change the scrubbers from a regenerative type that would capture the caustic [sodium hydroxide, lye] that cleaned the pollution out of the smokestacks. The were going to switch to a cheaper non-regenerative system that would have dumped the air pollutants into the polluters toilet, the Delaware River.  The caustic was going to supplied by Oxychem, and would have contained heavy loads of mercury.  This mercury, along with hundreds of thousands of pounds per day of other pollutants, would have gone straight into the river.  David Small was on a radio talk show blatantly fibbing that there were minuscule amounts of mercury in it.  It turned out one years worth of caustic into the river would have been roughly equivalent to 38,000 thermometers worth of mercury.  Eventually because of the abhorrent nature of what DNREC and the refinery wanted to do, it was stopped by enviros and the community at large. This is a cautionary tale that the DNREC and it’s lying mouthpieces will do anything to get their agenda done. That agenda is always industry first at any cost.  [Note:  a side benefit of the regenerative scrubber victory was that the Oxychem “mercury cell” plant finally closed down, after decades of dumping large amounts of mercury into Delaware’s air, land, and water.  The plant still leaks and dumps mercury into the river, as the site is heavily contaminated, but the discharges are far less than when the plant was running and are gradually decreasing.]

Another corporate lawyer to the Delaware Supreme Court

Within days of Green Delaware’s post on why Leo Strine should not be Delaware’s Chief Justice, Governor Jack Markell nominated yet another corporate lawyer to the Supreme Court: Karen L. Valihura.  Unlike Strine, Valihura, who works in the firm of Skadden, Arps …. does not seem to have public notoriety.

“Karen Valihura’s practice involves a wide range of complex and high-profile litigation involving corporate and commercial issues, including mergers and acquisitions, fiduciary duties of directors, and federal and state securities fraud claims. She represents business entities in federal and state trial and appellate courts throughout the country.”

But, we would argue that she’s not an appropriate choice simply because she IS a corporate lawyer.  The upper reaches of Delaware’s judiciary are already overloaded with these.  Delaware courts need judges with backgrounds representing environmental concerns, civil liberties, organized labor, etc.  Therefore, the Senate should not confirm Valihura.

Valihura’s husband, Bob, is a former state representative who did many bad things.

House Bill 331:  Important Open Government bill hearing Thursday June 12th, 1:00 in Dover

Rep. John Kowalko has introduced HB 331, to make the University of Delaware–and Delaware State University–subject to the Delaware Freedom of Information Act.  The sponsors are Rep. Kowalko & Sen. Sokola, Reps. Jaques, J. Johnson, Q. Johnson, Keeley, Mulrooney, and Potter.  A press release from Rep. Kowalko is at the end of this Alert.

Every member of the legislature should be supporting this important bill.  Why are only 8 out of 62 senators and representatives (13 percent!) “on” this bill?  Probably each and every one of these 62 would agree, in general terms, that they believe in open and transparent government.  Why aren’t they walking the talk?  Why has an amendment to weaken SB 331 been filed?

o       The University of Delaware bribes the General Assembly with free graduate student labor in the form of “legislative fellows.”

o       The General Assembly gives the U of D about $120 million annually.  There is little accountability in the use of these funds, but doubtless a certain amount comes back around to benefit incumbent legislators.

o       The University of Delaware employs a full-time lobbyist, now Derrick Deadwyler, to keep the money and special treatment flowing.  (Deadwyler did not return a call from Green Delaware.)  Deadwyler formerly managed “government affairs” for DuPont, so he knows something about how to get undeserved special treatment.

The U of D has a long and shameful history as a civil liberties offender.  People trying to exercise freedom of speech on its campus are likely to be hassled or arrested by the U’s private police force.

The U of D has its finger in many Delaware policy pies, from the environmental, to the financial, to the social.  All too often, it seems to me, the U of D uses “academic” cover to front for industrial interests.

Example:   In the controversy over the scrubbers described above by Matt Del Pizzo, the refinery was able to roll out statements from College of Marine Studies (name since changed) professor of oceanography Jonathan Sharp in support of the proposed massive river-dumping.  (Sharp, long a servant of industrial interests, or at least an apologist for same, received a Lifetime Achievement Award from the ever-shameful “Partnership for the Delaware Estuary” in 2011.)  It would have been, and still would be, very helpful to be able to get a handle on payments from the Delaware City Refinery, under various owners, to the University of Delaware.

The U of D is a “Land Grant” university, generously funded by the people of Delaware.

The U of D has long managed, in effect, to claim the rights and privileges of both a public and private institution and the responsibilities of neither.

The exemption of the U of D from the Delaware Freedom of Information Act has long been a sore point and at least three bills have been introduced to change it.  One, apparently, was related to offense taken by some legislators to University plans for a property, the “Judge Morris” property, gifted to it.  Another, apparently, was related to University use of non-union contractors.    HB 331 seems related to University involvement in the “Data Center” power plant scam.  That the “Data Center” is a scam is beyond doubt, and understanding of it would be greatly aided by opening up the University of Delaware.  In each of these cases the pressure of proposed legislation may have influenced the actions of the University in that particular matter.   But the harm done by the U of D’s exemption from Freedom of Information goes much deeper than any particular episode or controversy.

A University is a complex institution.  Doubtless there is much good as well as much bad in the University of Delaware.  My personal experiences with the U of D range from the excellent to the horrible.  There is no reasonable objection to letting some light shine in.

HB has been assigned to the House Administration Committee, whose members are

Valerie Longhurst, Chair, Valerie.Longhurst@state.de.us 562-6640 (home) 577-8476 (office)
Pete Schwartzkopf, Vice-Chair, Peter.Schwartzkopf@state.de.us 227-6252 (home) 744-4351 (office)
Deborah Hudson, Deborah.Hudson@state.de.us , 651-9571 (home) 577-8723 (office)
Daniel B. Short, Daniel.Short@state.de.us 628-5222 (home) 744-4171 (office)
John J. Viola, John.Viola@state.de.us 832-2209 (home) 577-8453 (office)

ACTION:

HB331 will be taken up at 1:00 on Thursday, June 12, in the House Majority Caucus Room.  The natural tendency of the Delaware General Assembly is to kiss the butt of the University of Delaware.  So YOUR VOICE IS NEEDED.  Please contact the members of the Committee, listed above, and YOUR Senator and Representative ( Look them up here if need be).  Tell them you want HB 331 approved without weakening amendments.

Below:   Rep. Kowalko’s press release:

Bill Would Subject UD, DSU to State FOIA Laws

Kowalko: University of Delaware and Delaware State University receive millions

of dollars in state funds annually, should be treated as public bodies

DOVER – Delaware’s two public four-year universities would be treated as public bodies under the state’s open government laws under legislation filed in the House.

House Bill 331, sponsored by Rep. John Kowalko, would remove an exemption in Delaware’s Freedom of Information Act for the University of Delaware and Delaware State University. Currently, only the universities’ boards of trustees are subject to FOIA, while the rest of the institutions’ activities, records and meetings are exempt.

State law generally defines public bodies in part as an entity or body established by the General Assembly that “is supported in whole or in part by any public funds.” Since fiscal 2008, the state has allocated more than $1 billion in the budget to the two colleges – more than $830 million for the University of Delaware and more than $245 million to Delaware State University. Delaware Technical & Community College, which also receives state funds, is not exempt from FOIA.

“I want to be clear: the University of Delaware and Delaware State University are excellent institutions of higher learning, and Delaware families are fortunate to have two great in-stat options for their children,” said Rep. Kowalko, D-Newark. “At the same time, we as a state have allocated more than $1 billion the past seven years to these two schools. It is inconsistent to consider yourself a public body when it comes to receiving millions of dollars in public funds each year, but then turn around and say you aren’t a public body under FOIA. It can’t cut both ways.

“What we’re saying with this bill is that if UD and DSU are going to receive public funds, then the public should have a right to examine their records and have access to meetings where policy decisions are made. State-funded schools in most states already are subject to FOIA, so this bill just brings Delaware’s colleges in line with the vast majority of public universities.”

What’s the grossest lie Dave Small ever told?

Horrible Markell appointments diminish Delaware….
 

Leo Strine

When Governor Jack Markell had an opportunity to appoint a Chief Justice for Delaware, one of the names mentioned was Leo Strine.  I assumed he would be Markell’s choice for a simple reason:  Leo Strine was the worst possible choice.

The most flagrantly pro-big-business; the most flagrantly contemptuous of human citizens, of the potential candidates.

Known to me for his refusal to enforce Delaware’s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute.

Strine is the most prominent promoter of a shameful scam in which businesses could buy justice in “arbitration” hearings as a substitute for the usual semi-legitimate Chancery Court proceedings.  (The scam has been found unconstitutional by a Federal court, in a case brought by public-interest-oriented lawyer David Finger on behalf of the Delaware Coalition for Open Government, and is under appeal by – guess who? – Strine.

Strine recently spoke against opening up Delaware’s infamous, secretive Family Court.

Strine was surely known to many senators as a bad actor:   When then-Governor Tom Carper first nominated him to be a judge, the Senate refused to confirm him for months, until a deal was cut also putting a prominent senator’s son on the bench also.Delaware’s Courts have repeatedly been rated tops in the US by the mega-evil United States Chamber of Commerce for their pro-corporate, anti-human bias.

See this, from a few years ago:

“Dover – Governor Ruth Ann Minner responded Thursday to news that the First State’s legal system is the best in the nation, according to an annual survey released by the U.S. Chamber of Commerce. Delaware received the #1 ranking for the fourth year in a row, scoring first in 9 out of 10 categories-from timeliness to judges’ competence-in a poll of more than 1,400 senior corporate attorneys.”

“This survey shows that Delaware has the best judges, the best juries, and the most fair and reasonable legal system,” Gov. Minner said. “Our courts treat all parties fairly while avoiding frivolous lawsuits. This is another one of many factors that make Delaware a great place to do business.”

Here’s a recent example of what the Delaware courts anti-human bias means in practice, and why the states courts are a national and international public nuisance:

“Losing a shareholder lawsuit to a company could soon become more expensive,” writes Liz Hoffman of The Wall Street Journal. Hoffman reports on the Delaware Supreme Court’s recent decision to uphold, “a corporate bylaw that requires the losing party in litigation against the company to pay the winner’s legal fees.” Some lawyers, write Hoffman, are saying the ruling could open the door for Delaware companies to adopt, “‘loser pays’ bylaws of their own” to deter shareholder lawsuits. (Wall Street Journal, May 19, 2014)

In any case Strine was confirmed unanimously, surely one of the more dishonorable votes in the history of the Delaware Senate.

Why bring this up now?   Most people, if they are awake and interested, probably know that the quality of Delaware’s courts has been in free-fall for a long time.  That citizens seeking judicial remedies for bad environmental or land use decisions rarely get help from Delaware courts, which are openly proclaimed to be at the service of big-business.  Many people know this as a national scandal, because so much business litigation takes place in Delaware courts.  For some background see “Green

Delaware Alert 638: Governor Jack Markell needs to reform Delaware’s judicial selection process

Dave Small

I bring it up now because Delaware’s top environmental official, Collin O’Mara, is leaving.  O’Mara has been an amiable front man for Markell’s scams, has shown no particular depth, has presided over the continuing decline in the professionalism and integrity of the DNREC….there really is not much more to be said about him.

But, to replace O’Mara Markell has made another worst possible choice:  David Small.

Small entered the Department of Natural Resources and Environmental Control (DNREC) years ago as a flack, and rose through the ranks to become chief political operative, lobbyist, and deal maker.

I’ve never known him to show depth of concern for any environmental issue.  He’s the guy who year after year, after releases, spills, and scandals, would tell reporters “there was no harm to the environment.”  It was like playing a recording.  It was a recording.

For Small, it’s all politics and selling out regulatory actions to get money for DNREC.

Small set up a deal to exempt the Delaware City Refinery from the Regional Greenhouse Gas Initiative and then lied to the Delaware Senate about it.  He has no known technical background or understanding.  He worked steadily to make Delaware’s environmental public hearings, once well-respected, into bad jokes.  He’s been a key player in dismantling the Delaware Coastal Zone Act, probably the only really significant piece of environmental legislation to originate in Delaware.

The Senators will likely be happy to confirm him unanimously because they know him well as DNREC’s amiable chief lobbyist.  But, he’s a horrible choice.

I doubt that many Delaware “environmental” orgs will object as he’s certain to be confirmed and they won’t want to offend him.We are going to have a little contest:  “What’s the grossest lie Dave Small ever told?”

Muller’s nomination:  When the Regional Greenhouse Gas Initiative was being negotiated in Delaware, Small, and mainstream enviros cut a deal to exempt the Delaware City Refinery, which had a sizeable power plant that should have been required to buy “allowances” like the other power plants in Delaware.  Green Delaware worked on a bill to change this, but Small lied, saying enviro interests supported it.  (Some, shamefully, did.)Dave Small, to my way of thinking, is the Leo Strine of environmental regulation.

Sent YOUR Dave Small stories to Green Delaware:  Info@greendel.org.   And tell your Senator not to confirm him.

Upcoming:  Bill to apply freedom of information to University of Delaware needs more support (HB 331, Kowalko, Sokola).  A bill to make contaminated site cleanups even more secretive needs opposition (SB 198, McBride).

Alan Muller