April 26, 2001
The Honorable Harold Stafford
Secretary of Labor
Delaware Department of Labor
4425 N. Market Street
Wilmington, DE 19802
RE: Workforce Investment Board
Dear Secretary Stafford:
You have presented two questions regarding the Workforce Investment Board (WIB) for review. Specifically, whether the WIB is a state agency and whether the WIB has sovereign immunity. The issue must be addressed in terms of the Board's enabling statute, the Workforce Investment Act of 1998 and its establishment by Governor Carper's Executive Order of January 31, 2000.
The Workforce Investment Act(1) is a federal appropriations bill that envisions a relationship between the U.S. Department of Labor and the Governors of participating states. The Act sets the criteria for qualifying grants to the states, establishes oversight through the U.S. Department of Labor and requires the establishment of local boards through the Governors of the participating states. The Board's powers and responsibilities arise from the federal statute and the delegation of authority by the Governor.
The Workforce Investment Board was established pursuant to section 111 of the Act and by Executive Order Number 75. Because the Tort Claims Act does not define the term "agency of the state" as used in 10 Del. C. § 4001, the question becomes whether there is a nexus between the local Board and the State sufficient to evoke the protections provided therein. In 1994, the Supreme Court held that the Delaware Solid Waste Authority was an agency of the State for the purposes of the Tort
Claims Act.(2) The Court considered the purpose, structure, powers, and other attributes to find a connection between the Authority and the State. It relied in part upon the General Assembly's intent
to ascribe expansive meaning to the definition of state agency throughout the Delaware Code including limiting liability for "the members of any board" acting on behalf of the State for the good of the public.(3) The local WIB members serve the Governor and the public in the performance of their duties. Therefore, the WIB is an agency of the State for the purpose of the Tort Claims Act.
The Constitution of the State of Delaware provides immunity for the State unless waived by the General Assembly.(4) Because the Board acts on behalf of the State in the performance of its duties, the WIB is protected by sovereign immunity under the Delaware Constitution and the Tort Claims Act. The Tort Claims Act further provides the members of the WIB with statutory immunity, as long as the three conditions imposed by § 4001 are satisfied.
The three conditions of § 4001 are : a) "the act or omission complained of arose out of and in connection with the performance of an official duty . . . involving the exercise of discretion."; b) "the act or omission complained of was done in good faith and in the belief that the public interest would best be served, thereby."; and, c) "the act or omission complained of was done without gross or wanton negligence." (5) The Board members are covered by the state statute as long as they perform their duties with reasonable diligence and in good faith. Although state law cannot immunize members from suit in federal civil actions under 42 U.S.C. §1983, they are similarly protected by the doctrine of qualified immunity for their discretionary conduct that does not violate "clearly established" statutory or constitutional rights.(6)
In summary, the WIB is a state agency for the purpose of the Tort Claims Act and as such, the Board is protected by sovereign immunity. I hope this information provides the answers to your inquiry. I am available should you have additional questions or concerns.
Very truly yours,
C. Cullen Rooney
Deputy Attorney General
Deputy Attorney General
Macolm S. Cobin
cc: The Honorable M. Jane Brady, Attorney General
1. Public Law 105-220; 112 STAT. 936.
2. Sandt v. Delaware Solid Waste Authority, Del. Supr., 640 A.2d 1030 (1994).
3. Id. at 1033; and, Wilmington Housing Authority v. Williamson, Del. Supr., 228 A.2d 782 (1967).
4. Doe v. Cates, Del. Supr., 499 A.2d 1175 (1983); and, King v. State, Del. Supr., 203 A.2d 74 (1964).
5. 10 Del. C. sec. 4001 (1), (2), (3).
6. Kirschling v. Lake Forest Sch.
Dist., 687 F. Supp. 927 (D. Del. 1988); and, Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982).
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