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    Todd Dorman
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    Hogg response

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    66 views3 pages

    Hogg Response

    Uploaded by

    Todd Dorman

    Copyright:

    Attribution Non-Commercial (BY-NC)
    Download as PDF or read online from Scribd
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    of 3
    eee eine Bepartment af Justice SSeS March 22, 2011 ‘The Honorable Rob Hogg State Senator State Capitol L-O-C-AL Dear Senator Hogg: Our office is in receipt of your recent request for an opinion of the Attorney General concerning the application of Executive Order No. 69 to the Cedar Rapids Convention Complex. Some factual background on the Convention Complex may be helpful. It is our understanding that the Convention Complex is a project that will be funded by approximately $75 million in funds from federal, state and local sources of revenue. The City of Cedar Rapids (the “City”) received a grant of $15 million from the Towa Jobs Board (the “Board”) under an agreement that was executed on June 1, 2010. ‘The $15 million is to be distributed by the Board as expenses are incurred. Less than $1 million has been distributed by the Board to the City so far. On December 15, 2010, the City entered into a project labor agreement with the Cedar Rapids and lowa City Building Trades Council for construction of this facility. In essence, the project labor agreement sets compensation and other terms and conditions of employment for the workers on the project and provides a grievance procedure for disputes with a prohibition against work stoppages and'lockouts. The federal government will provide approximately $35 million in funding for this project. On January 14, 2011, Governor Branstad issued Executive Order No. 69. The executive order rescinds a previous executive order issued by former Governor Culver and prohibits the use of project labor agreements by state departments, state agencies and political subdivisions and other entities that utilize state funds. The executive order by its terms does not apply to any public works project where the lowest responsible bidder was selected and a construction contract was entered into prior to the date of the executive order. The executive order does not otherwise specifically address grant agreements for state funding like the Iowa Jobs Board agreement with the City. ‘The Honorable Rob Hogg Page 2 Against this factual backdrop you ask us to issue a formal opinion regarding the legality of Executive Order No. 69, including the validity of the executive otder under Towa’s Home Rule Amendment and the impact of the executive order on existing contracts that the City has executed. We do not believe it is appropriate for our office to issue an opinion in this circumstance. Ordinarily, we do not issue opinions to address legal issues when litigation is threatened or imminent. See 61 lowa Admin, Code 1.5(3)(a)(“The attorney general may decline to issue an opinion where appropriate, as in the following examples . . .The matter is pending in litigation or litigation is imminent, or other formal proceeding provided by law for resolution of the issue and issuance of the opinion could interfere with the authority of the other forum.”). It is not appropriate for our office to address a question which is likely to come before a court in the near future. The Iowa Supreme Court has noted our long-standing policy of avoiding issuing opinions when litigation is pending or imminent so that our office does not invade the exclusive province of the courts to resolve the legal issues. See Martin v. Peoples Mut. Sav. and Loan Ass'n, 319 N.W.2d 220, 230 fn.6 (Jowa 1982). In this particular circumstance, general counsel for the Iowa Finance Authority has already issued a letter to Mayor Ron Corbett on February 11, 2011, taking the position that the City may be declared in default under the grant agreement if a project labor agreement is incorporated into bid documents for the Convention Complex and a construction contract is executed after the executive order issued. On February 22, 2011, the City proceeded to awatd a contract that had been bid for demolition at the Convention Center site and had incorporated the executed project labor agreement. Accordingly, it appears the state agency may be poised to declare the City in default under the grant agreement. We are aware and the media has reported that the Governor, the agency and the City have explored reasonable possibilities for a negotiated resolution of this situation We strongly encourage the parties to resolve this dispute short of litigation. Several points should be emphasized, Project labor agreements that are incorporated into bid documents and do not discriminate between union and nonunion workers have been upheld by the Iowa Supreme Court as consistent with competitive bidding statutes and Towa’s right to work law. Master Builders of Iowa, Inc. v. Polk County, 653 N.W.2d 382 (lowa 2002). Cedar Rapids will receive $35 million in federal funds for this project and federal construction projects are subject to a presidential executive order that specifically authorizes the use of project labor agreements. Exec. Order No. 13502, 74 Fed. Reg. No. 27, 6985 (Feb. 6, 2009). Any litigation will likely require the court to pass on the ‘The Honorable Rob Hogg Page 3 enforceability of both the state grant agreement for $15 million and the project labor agreement. The stronger legal arguments support the City’s position that the City can proceed with the project labor agreement and the State cannot legally withhold the State grant money of $15 million. Courts expect government to live up to its contractual obligations. The Governor should resolve the dispute with the City, or live up to the State’s grant agreement and allow the City to live up to the project labor agreement. We hope the Cedar Rapids Convention Complex project will move forward and be completed on schedule, Sincerely,

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