AG: Malloy executive orders aimed at gathering information, nothing more

When he issued executive orders allowing certain day care providers and home care workers to unionize, Gov. Dannel P. Malloy was creating a way to gather information and evaluate policy proposals about state programs, not attempting to interfere with legislative authority or force anyone to join a union, according to a court document filed on his behalf by the state attorney general’s office.

“All [the orders] do is create mechanisms for gathering information. They provide for discussion, recommendations, and reports, nothing more,” it said.

The argument was part of a memo supporting a motion to dismiss a lawsuit filed last month by Waterbury-based We, the People of Connecticut, Inc. The lawsuit alleged that Malloy exceeded his authority in issuing the executive orders, violating the state Constitution.

The plaintiffs in the case include five child care workers and one personal care attendant. The lawsuit seeks an injunction to stop the executive orders from being implemented, and asks the court to compel Malloy to rescind the executive orders.

The orders, issued in September, allowed day care providers and home care workers paid through state programs to elect a union — referred to in the orders as a “majority representative” — to represent them in nonbinding discussions with the state. The orders did not give the workers collective bargaining rights, but established working groups to advise the governor on ways to structure collective bargaining rights for both groups. Legislators had considered bills during last year’s session that would have granted collective bargaining rights to the child care and home care workers, but neither bill passed.

The We, the People lawsuit argued that the plaintiffs would be compelled to pay union dues and follow “bargained for” rules and regulations that would add to the cost of doing business, potentially putting them out of business. It also said that Malloy’s actions denied the plaintiffs their rights to assemble, have the general assembly make law, seek redress of grievances before law is enacted and choose to be represented by a union.

“[S]uch violation is akin to slavery and stands in direct conflict with the Plaintiffs rights” under the Connecticut and U.S. Constitutions, it said.

The attorney general’s memo disputed the lawsuit’s claims, saying that the executive orders did not create unions, authorize collective bargaining rights or do what past legislation proposed.

“Stripping away the political sloganeering, what do the Orders actually do?” it said. “They establish an efficient and lawful means for the Governor to gather information and evaluate policy proposals concerning the administration of state programs subject to his executive oversight authority — nothing more.”

The memo noted that Malloy had concluded that the child care and home care programs had not attracted or retained enough qualified service providers, in part because of inadequate employment conditions. And it argued that allowing the workers to elect a “majority representative” was a way to address the challenge of gaining input from members of large workforces who typically work alone or in small groups and don’t have a common representative to express their views.

The memo also argued that the plaintiffs’ claims are moot because the processes created by the orders — the election of majority representatives by each group and the recommendations of the working groups — were already completed.

The child care providers, who receive payments through the state’s Care 4 Kids program, voted in December to be represented by CSEA/SEIU Local 2001. The home care workers voted last week to join New England Health Care Employees Union, District 1199, SEIU.

Both working groups completed their recommendations in February. Their reports led to legislation that would have allowed for collective bargaining rights for the day care providers and home care workers. Both bills failed to make it out of committee, but legislators expect the proposals to re-emerge before the legislative session ends next month.

The memo also argued that the plaintiffs do not have standing to sue and that their claims are barred by sovereign immunity, which protects the government from lawsuits.

Attorney Deborah G. Stevenson, who filed the We, the People lawsuit, said the plaintiffs plan to refute the grounds cited in the motion.

“We don’t feel that they’re appropriate at all,” she said. “Obviously there are certain things from the executive orders, for example, that are still ongoing.”

She called the argument that the executive orders were meant to allow Malloy to gather information “disingenuous at best.”

“While it does allow for the gathering of information, what it did was set up an election procedure and the governor has no authority to set up an election procedure,” she said. “That is something that is within the purview of the legislature to do.”

“This is not just a mechanism for gathering information,” Stevenson added.

Two other lawsuits challenging the orders on behalf of day care providers, home care workers and clients, and backed by the Yankee Institute for Public Policy, were also filed last month.