The Ehrlich administration reversed course yesterday on its plan to close the state's Prevailing Wage Office after a General Assembly attorney found a 1997 law requiring the office to employ at least five inspectors.
James C. "Chip" DiPaula Jr., chief of staff for Gov. Robert L. Ehrlich Jr., said yesterday that the administration had not been aware of the law, which does not appear in state code books. But he said the Department of Labor, Licensing and Regulation will rearrange its budget to maintain the five inspectors.
"We are in compliance, and we will be in compliance," DiPaula said.
Union leaders cheered the decision but said they were still worried about how well the governor would enforce the law, which effectively mandates union-rate wages on state construction projects.
"I wonder if that means there'll be the same inspectors that are currently there that have experience, or is he going to hire a bunch of new people that don't know squat?" said Jerry Lozupone, executive secretary/treasurer of the Washington D.C. Building and Trades Council. "Funding it and giving them the tools to actually recover lost wages for people are two different things."
General Assembly leaders had accused Ehrlich of flouting his constitutional duty to follow and enforce the state's laws when it was reported this week that he planned to close the Prevailing Wage Office and an office that enforces other wage statutes.
Labor activists and critics in the legislature charged that the governor was waging a back-door effort to abolish the prevailing wage by eliminating enforcement.
As a candidate for governor, Ehrlich pledged in a 2002 Teamsters union questionnaire to support and enforce the prevailing wage. But this week his spokeswoman, Shareese N. DeLeaver, said the governor "has never been enthusiastic about artificial, government-mandated wage levels," which he believes drive up state construction costs.
The Assembly adopted budget language this year requiring the governor to keep the two wage offices in the fiscal year that begins July 1. This week, DiPaula said that law overstepped the General Assembly's budget authority and wasn't binding. The legislature cannot make such a requirement in the budget being debated in a particular legislative session, but it can require appropriations for future years, he said.
But the 1997 law, which General Assembly lawyers stumbled across yesterday, has been in effect - and, according to budget documents, followed - since fiscal 1999.
Robert A. Zarnoch, the assistant attorney general who is counsel to the General Assembly, said the language was not codified - meaning it doesn't show up in a search of the state code - but is still binding.
"It's understandable how this might slip through," Zarnoch said. "If you went through the code, you wouldn't have seen any mandated appropriation, but it was there and it's still there now."
Most laws passed by the Assembly are codified, but some, particularly budget bills, are not, Zarnoch said.
The existence of the 1997 law leaves Ehrlich with no room to doubt that the will of the legislature is to enforce the prevailing wage laws, said Connie DeJuliis, a lobbyist for the Baltimore Building and Construction Trades Council. "This General Assembly thought it was important to enforce prevailing wage laws, and the one in 1997 did, too," she said.
The 1997 bill was sponsored by then-Del. Van T. Mitchell, a Charles County Democrat whom Ehrlich made deputy secretary in the Department of Health and Mental Hygiene last year. It was co-sponsored by several Republicans and others who now work in the Ehrlich administration.
Most of the law dealt with changing the rules for overtime pay on prevailing-wage jobs. Previously, Mitchell said, employees got overtime for working more than eight hours in a day, regardless of whether they worked more than 40 hours in a week.
The change, he said, was designed to give contractors flexibility. For example, they could work their crews four 10-hour days in a week without paying overtime if weather problems prevented them from working on one day. The mandate for extra inspectors was added to the law in a give-and-take with the unions, Mitchell said.