The contractors say that the executive order of the Government Union Tina Kotek is illegal. Some legal experts are not so sure

Oregon Governor Tina Kotek Executive order friendly with the Union He immediately aroused controversy, and is now at the center of a complex legal battle.

Order signed on December 18, requires State agents To negotiate and sign employment agreements with contractors on practically all state -supervised construction projects, such as modernizing a bridge to make it resistant to earthquake. The mandate effectively ensures trade union participation in all major state projects.

On Friday, more than a dozen contractors and business groups filed a trial at the Marion County Court against Kotek, claiming that it exceeded the legal authority in issuing the order and violated several laws in Oregon.

“There is no current status on books that have given (Kotek) the authority to do what it has done in such a great manner,” said Mike Salsgiver, the Executive Director of the General Contractors Associated, plaintiff in the process.

The result will have a direct impact on the Oregon transport expenses and the construction workforce, as parliamentarians from Salem work to complete What officials say is a massive budget gap of $ 1.75 billion at the State Transport Agency.

The projectors of the project agreements say that they prevent disturbing strikes and ensure that the state agencies hire qualified workers and maintain high standards at work. They support these insurances, while carrying some costs, eventually reduce construction times and price labels.

The opponents, including the groups of contractors, say that the executive order will illegally discourage contractors who do not have union workers to seek government contracts, prevent competition and lead to higher project costs and longer construction programs.

But the question if the governor has overcome its authority does not have an easy answer, several lawyers who have revised the trial said oregonian/oregonlive.

Professor of Willamette University School of Law, Paul Diller, specialized in the state authority, local governance and emergency powers, said he is not sure if Kotek has overcome his legal power. “I still don’t have a great sense in this regard,” he said. “I have lived in Oregon for 20 years. I don’t remember anything like this. “

Kotek’s office refused to offer an additional legal context or to continue to elaborate the executive authority of the governor, citing the legal fight.

The claims of the contractors

The complaint makes two main legal arguments. First of all, he states that Kotek did not have the authority to mandate the employment agreements, arguing that this creates a law – something that only parliamentarians or state -of -the -art voters can do.

Previously, Oregon governors have effectively established policy by executive orders, based on legal power. For example, The The Supreme Court of Oregon In 2020, he confirmed the executive order of the Covid Age Kate Brown, which banned great meetings, saying that Oregon law gave the authority to issue the order.

But Brown had a significant power when he issued that executive order, said Diller, because of the emergency public health at that time, which “clearly delegated it.” Kotek’s authority, he said, “is less clear.”

A key question is whether a status referred to in the executive order allows Kotek to impose such a mandate.

The statute allows the agencies to request the disciples, benefits and other protectors of the workers – common in the project agreements – for some contracts. But the contractors claim that the provisions do not mean that Kotek may mandate the work agreements of the project.

Diller said that the disposition could strengthen Kotek’s assertion, but he said he “does not read as a wholesale delegation towards the governor.”

The contractors emphasize that the Oregon parliamentarians have previously weighed the invoices to extend the use of project work agreements. In 2021, they An invoice has passed This has mandated employment agreements for certain capital projects funded by the US Rescue Plan. Two years later, they REJECTED A draft law that would have expanded this law to include several federally funded projects.

Peter Viteznik, a Portland lawyer, specialized in business and construction disputes, said he strengthens the contractors’ argument.

“I think it will be difficult for the state to overcome this,” he said. “Because I think the judge will say,” Well, why would this legislator have done, if the governor could order what he did at any time? “

Another main argument of the complaint is that the executive order violates the open and competitive auction laws in Oregon. He argues that the pride of the work agreements of the project will unfairly benefit the contractors with trade union employees and reduce the competition from non-syndic contractors.

The laws regarding the public contracting in Oregon require the state to “allow the impartial and open competition, protecting both the integrity of the public contracting process and the competitive nature of public procurement”.

In an informational sheet, Kotek’s office said that the executive order “is in accordance with the laws regarding the contracting of the state.

Proponents of the employment agreements of the mandated project emphasize that all contractors are allowed to bid for projects, regardless of the union status. They also emphasize, Kotek’s executive order allows agencies to seek exemptions.

“I strive to see injustice,” said Katelyn Oldham, a Labor Labor in Oregon who represented unions. “If you do not think you will be able to get a trade union workforce to where you are, because you are in a truly limited rural area, why not talk directly with the Agency and work on an exemption for this project?”

The results of the legal challenge could eventually rely on wide interpretations of Kotek’s power and responsibilities.

“I am not sure if I agree that it goes beyond its authority,” Oldham said, noting that part of Kotek’s job is to maintain a balanced state budget. “The executive order also states that the reason for this order is to maintain efficient government contracts and to avoid additional costs from strikes.”

Although Kotek said that the request for employment agreements will reduce costs and reduce the chronology for projects, its office has not publicly launched any state analysis to support these claims. And a 2022 analysis of the Oregon Transport Department has established that the work agreements generally led to the costs between 10% to 20% in major projects.

Oregon contractors have made a similar argument in the past. Last year, the contractors sued the Oregon Transport Department, claiming that the Agency exceeded its authority, requiring project work agreements for eight projects. The Supreme Court of Oregon has heard arguments about this case in December, and several lawyers said that its Oregon/Oregonlive result will probably determine the fate of Kotek.

The legal case resounds a similar fight at national level. Last month, a federal court was pronounced in favor of contractors who challenged the executive order of former president Joe Biden, who imposed the project labor agreements for major federal projects. This mandate has not been canceled.

In their complaint, Oregon contractors cites the federal case and the court decision. Oldham, however, said that cases are not necessarily equivalent, because the laws regarding federal and state contracting differ.

The contractors say that the federal decision strengthens its argument. The process in Oregon is “in accordance with what has just happened at the federal level,” said Salsgiver. “When you establish a condition that you say you can only bid for this work if you agree to enter something that you would not do otherwise, then we believe that this is a violation of the public contracting law.”

– Carlos Fuentes covers the state policy and the government. Reaches him at 503-221-5386 or [email protected].

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