Tony DeLuca Makes the Laws. Tony DeLuca Makes Up the Laws.

Tony DeLuca is an Inconvenient Truth to both Gov. Jack Markell and Attorney General Beau Biden. Not only is he serving illegally as President Pro-Tempore, he is both making the laws as a legislator and he is also making up the laws as the Chief Labor Law Enforcement Officer for the Department of Labor.

Yes, ‘making up the laws’. Aided and abetted by a former deputy attorney general by the name of Linda Carmichael, who may or may not have ever cracked a law book, DeLuca has arbitrarily made rulings in prevailing wage cases that have cost contractors tens of thousands of dollars. Don’t get me wrong. I support prevailing wage, and I don’t weep for contractors who try to rip off workers, although I sure don’t think that’s what happened here. I also believe that the biggest threat to prevailing wage is a backlash caused by arbitrary and capricious rulings  unsubstantiated by either fact or reasoned opinion. That is precisely what DeLuca has done.

While Chad Livengood will soon depart the News-Journal, he has left more than bread crumbs behind when it comes to DeLuca. This article is firewall-protected, but if you can read it, you will likely be astonished at DeLuca’s chutzpah. Unless you know DeLuca.

Here’s the story:

Two roofing companies are suing the Delaware Department of Labor claiming an office run by Senate President Pro Tem Anthony DeLuca is not properly enforcing labor laws and thwarting contractors from appealing prevailing-wage decisions.The lawsuits, which have been joined together in Superior Court, stem from DeLuca’s Office of Labor Law Enforcement trying to force the companies to pay a sheet-metal workers wage rate for installing foam insulation on a metal roof — nearly tripling the hourly rate for the workers.

In other words, DeLuca is claiming that installing foam installation onto a metal roof warrants a sheet metal workers’ wage rate of $61 an hour, not a composite roofers’ rate of $21/hour. I grant you that, while this appears questionable on its face, I don’t know what the law says. Neither does DeLuca:

In court documents, internal records and interviews, Department of Labor officials have offered little justification as to why the companies must pay a higher rate.

Let me just point out that the referenced court documents were documents that Tony DeLuca and Markell’s chosen Labor Secretary John McMahon didn’t want you to see. They were aided and abetted by deputy attorney general Linda Carmichael, who, until recently, wrote opinions to spec for Tony DeLuca. It was only after Carmichael fortuitously found a position working in the same court with former Sen. Jim Vaughn’s son that Attorney General Biden ruled that these documents should see the light of day. Jim Vaughn, of course, was a powerful political ally of Tony DeLuca’s. His son is now the presiding judge of Delaware’s Superior Court, which is how things work in Delaware. Tony DeLuca’s enabler, Linda Carmichael, now works there as well. Completely coincidental, I’m sure. One can only hope that any justice(s) who paved the way for Carmichael’s job change will recuse themselves should they have to consider similar chicanery from the Department of Labor that Carmichael had anything to do with. This is not paranoia. Superior Court has already dealt with this issue at least once, dismissing DOL’s request for a summary judgement. Now, the losing attorney of record is working at Superior Court. I’m sure it’s merely coincidental, but just in case it isn’t, everybody, including the AG, should pay particular attention as to how Superior Court handles matters related to DeLuca and the Department of Labor from this point forward. After all, DeLuca’s fixer works there now. And, lest that not be enough:

The lawsuits are set to go to trial April 2 before Superior Court Judge John A. Parkins Jr., said Kevin Fasic, attorney for Tri-State. (Parkins was the judge of record in the linked case, and he showed no favoritism towards DOL.)

I’m getting ahead of myself again, though. To recap: We have apparently arbitrary and capricious decisions by Tony DeLuca, who hasn’t even deigned to try to show justification for his decisions. We have Tony DeLuca and John McMahon withholding the documents concerning these decisions from the public, with only a FOIA lawsuit by the News-Journal and Attorney General Biden’s reversal of Linda Carmichael to thank for finally seeing these documents. And we haven’t even gotten to Bizarro World yet.

Welcome to Bizarro World. While it’s one thing to issue arbitrary and capricious decisions without providing substantiating detail, it’s quite another to try to deny or prevent any appeal by the contractors. But that’s what happened. Quoting from Chad’s story:

The roofing companies claim the agency is quick to demand payment without explaining in writing how a company can appeal a prevailing-wage decision. Dozens of prevailing-wage letters recently reviewed by The News Journal mostly contain the same standard language informing companies of alleged prevailing-wage violations but do not indicate companies have a right to appeal the ruling.

I thought that notice of right to appeal was a legal requirement. All you barristers out there, what sayeth you?

Well, regardless, it is now documented that DOL did not provide such notice. Nevertheless, Tri-State did “dispute(d) the decision directly in writing to a labor-law officer in DeLuca’s office, but the Department of Labor’s attorney said the letter didn’t count as an appeal because it didn’t go directly to the secretary, court records show.”

Got that? First DOL doesn’t provide notice of the company’s right to appeal. The company appeals anyway, and Linda Carmichael claims that a technicality invalidated the appeal, even though the Department didn’t even provide notice that the company had the right to appeal. See what I mean about Bizarro World? “It doesn’t count b/c you sent it to the wrong person, nyah, nyah, nyah.”

Wait, it gets even more bizarro:

Instead, Tri-State owners Nick and Ron Sanna and their attorney met with (Labor Secretary John) McMahon in August 2009 at the offices of Associated Builders & Contractors, a non-union industry group.The Sannas said they demonstrated to McMahon a model showing how they construct the type of roof in question.

But the meeting wasn’t sufficient to count as a formal appeal to the secretary because “the Department was not present,” according to a letter former Deputy Attorney General Linda Carmichael wrote to Fasic in October 20.

‘The Department was not present’? If a meeting with the Secretary of the Department does not by definition constitute a meeting with the Department, then pray tell just what magic configuration would meet the shape-shifting requirements laid down by the deputy attorney general? Granted, DeLuca runs the Department, and Markell and McMahon let him, but McMahon is still technically the Secretary.

By now, you can see the pattern clearly. The same state agency that didn’t properly provide the requisite right to appeal notice is making up the rules as it goes along, and they apply to everybody but them. Without even letting the appealing party know about either rights or regulations, its Deputy Attorney General Linda Carmichael comes up with  obscure rationales that can only be characterized as a willful obstruction of a party’s right to appeal a decision. She wrote them to spec for Tony DeLuca and Jack Markell’s Labor Secretary John McMahon. She is now ensconced at the court that will consider the complainants’ appeal.  If she so much as whispers something into the ear of someone with authority in this case, she should face disbarment. I’ll file the bleeping complaint myself, since neither the Governor nor AG have demonstrated any willingness to put an end to this charade.

One of the contractors is already out over $100,000 in attorneys’ fees even though acceding to DeLuca’s ruling would have cost them far less. Why? Because the contractors want to know what the rules are going forward.

They should already know that the rules are whatever Tony DeLuca wants them to be. Jack Markell and Beau Biden know it. They know it’s Tony’s World, he just lets them live in it. For now.