Conflict between Gov. Matt Meyer and State Senate Democratic leadership over nominations to the Diamond State Port Corporation (DSPC) Board continues with both sides requesting the Delaware Supreme Court to weigh in.
The board manages and operates the Port of Wilmington and also heads the development of the Delaware Container Terminal at Edgemoor, a project that has been halted due to legal permitting challenges.
Status of the Edgemoor Container Terminal Project
In May 2024, Gov. John Carney's administration announced an official public-private partnership to build a new port terminal at a site in Edgemoor after years in the making.
The industrial site was purchased in 2017 by the DSPC with plans to house the $635 million infrastructure project, which is poised to be the largest shipping terminal in Delaware since the current Port of Wilmington opened in 1923.
The promised “green port” would quadruple the port’s capacity for container cargo and enable new and larger ships to be serviced.
The terminal is estimated to create nearly 6,000 new jobs, including more than 3,100 direct jobs. Total state and local taxes generated from Edgemoor are estimated at $39.4 million annually. In addition, building the new facility is expected to create more than 3,900 construction jobs and generate $42.3 million in tax revenues.
Once completed and fully operational, “Port Delaware,” including both the existing and new terminals, is expected to generate a total of around 11,480 jobs and $76.2 million in tax revenues for the state, making it one of Delaware’s largest employment centers.
Delaware committed to taking on 31% of the cost of building the facility — around $195 million. Private partner Enstructure is expected to pay most of the construction and equipment costs with the remaining funding coming from federal sources and the DSPC.
But the project hit a major snag when a federal judge in Pennsylvania ruled in favor of the Philadelphia Regional Port Authority (PhilaPort) and others who sued the U.S. Army Corps of Engineers after necessary permits were approved.
PhilaPort raised legal and regulatory concerns over the permitting process, and U.S. District Judge Mark Kearney ruled in November the Army Corps acted “arbitrarily and capriciously departed from its own procedures” when giving the project the go ahead.
Former Secretary of State and former DSPC Chair Jeff Bullock explains Delaware is not directly involved in the lawsuit, and it would be up to the Army Corps to appeal the decision.
"The decision was made, 'let's not appeal, let's just fix the things the judge identified.' That's what's going on right now," Bullock said. "I think those permits are going to be reissued fairly soon. Once those permits are reissued... we are a shovel ready project, and we should get a shovel in the ground immediately."
During Secretary of State Charuni Patibanda-Sanchez's confirmation hearing on Jan. 22, she said her and Meyer are committed to seeing the project through.
"The governor and I are in fully in support of creating good jobs for Delawareans, and that port expansion project is going to deliver good jobs for hardworking Delaware families... so we do very much support the port project," she said.
At the time, Patibanda-Sanchez said she had limited knowledge of the legal posture of the project, but if confirmed, she would immerse herself in it and work to move it forward.
Patibanda-Sanchez was confirmed as the new secretary of state by the entire Senate Tuesday.
The Senate Executive Committee Hearings
Despite Meyer’s attempt to withdraw nominations made by Bethany Hall-Long during her two weeks as governor, the Senate Executive Committee voted to send four of the nominees to the full Senate to confirm.
The nominees include Local International Longshoreman’s Association (ILA) President William Ashe, former Secretary of State Jeff Bullock, Local Laborers' International Union of North America (LiUNA) Business Manager Curtis Linton and International Union of Operating Engineers (IUOE) Business Representative James Ascione.
The fifth nominee, former Delaware Board of Pilot Commissioners Chair Robert Medd, withdrew his nomination but did not respond to a request for comment.
During the hearing, nominees were repeatedly asked by Senate Majority Leader Bryan Townsend (D-Newark) if they had conversations with the Meyer administration about their nominations.
Ashe was candid in his remarks that he met with Meyer's Deputy Chief of Staff Nick Merlino the week of Jan. 20, who he says asked him to withdraw his name from the list of nominations with the promise of being renominated by Meyer himself.
Although, without a guarantee of former Secretary of State Jeff Bullock being renominated — who served as secretary of state for sixteen years and was the board's most recent chair — Ashe refused to withdraw.
“Why wouldn't you want the Secretary of State on that? He knows all about the port. We've been working together for the last eight to 12 years. Now you want people to come off this — for what reason? [Merlino] said, ‘Well, the governor will put you back up there.’ I said, ‘No sir, not unless all five is up there, it ain't gonna happen,'" Ashe said.
Townsend also cited frustration with the Meyer administration for portraying the Edgemoor Port project as being in its infancy when Bullock and other nominees said once the legal permitting issues are resolved, contracts have already been established and the project is "shovel ready."
"I don't think this committee feels — and I can only speak for myself — that this is suddenly something new that is on a whiteboard that just came out of nowhere and is being rushed," Townsend said. "And I'm just grappling with sort of the dynamic that's being pushed by the Meyer administration frankly, as if this is sort of a new idea that hasn't been vetted by a whole lot of people across multiple administrations subject to public scrutiny."
Bullock responded saying he will never publicly criticize an administration but says the Edgemoor project is a "no brainer" in terms of economic value for the state.
"At the end of the day, people who want the best interest of our state, [should] come forward, do what's right, move this project forward — not say you're going to move it forward — but be in the fight to make sure it gets done," Bullock said.
Townsend asked a similar question to Linton about being approached by the Meyer administration, asking if he felt Meyer's contentious gubernatorial run against Hall-Long in the primary election was at play during his conversation with Meyer's team.
"I kind of a got a little bit of— that it might have been about the person that made the nominations," Linton responded.
Ascione confirmed he had a similar conversation with Meyer's team but felt he and other labor representatives should have their seat at the table.
"It's kind of overdue for people from organizations like mine and Curtis's and Asche's to have a spot on this board. We're important stakeholders with a facility like this, especially with the largest project labor agreement, and I can't stress that enough," Ascione said.
When asked for comment, Meyer's Deputy Chief of Staff Nick Merlino said: "Today, President Pro Temp Sokola and Majority Leader Townsend decided to spend their morning name-calling Governor Meyer and attempting to change the subject instead of addressing the lack of transparency and self-dealing that is currently going on. Here are the facts: The terms of the majority of the seats in question on the Diamond State Port Board have expired since 2022. There has been no urgency to fill them until this moment. The timing of the proceedings and process intentionally denies Delawareans their legal right to control the port. Governor Meyer is committed to ensuring that when 100’s of millions of taxpayer dollars are on the line, a transparent process is in place, and every penny is accounted for. In these incredibly chaotic times, with President Trump threatening to cut federal funding nationwide, we must be extremely diligent with our dollars."
Calling in the Delaware Supreme Court
Senate Democratic Leadership sent a letter to Meyer Jan. 22 sharing the legal authorities they are relying on as to why they feel the nominations are lawful.
Meyer responded Thursday, providing his own legal backing as to why his administration feels it is within his right to withdraw the nominations.
"Yesterday, my legal counsel provided your attorney with authority supporting my ability to withdraw these nominations from the Office of the Governor. The law is clear that those nominations are no longer viable. If the former nominees’ hearings continue, I will have no choice but to secure clarity through the courts. Too many lives depend on the stability of the Port and its leadership," Meyer's letter read.
But Townsend argues Meyer's response came too late, which led leadership in both chambers to introduce Senate Concurrent Resolution 16. The resolution requests an advisory opinion from the Delaware Supreme Court regarding whether a governor can withdraw nominations submitted by the preceding governor that otherwise are properly before the State Senate.
"It took eight or nine days, as Sen. Sokola mentioned, for the governor to even respond to us, so it feels very important to be clear that's sort of why we are where we are," Townsend said.
Townsend notes the case law cited by Senate leadership as well as Meyer's team are both outdated and from other states. While he says he is "happy to seek additional legal clarification," he remains steadfast in the nominations being lawful.
Sokola reiterated this point during his opening remarks before introducing the concurrent resolution to the Senate Floor.
"The contradiction in case law suggests that further analysis is warranted, but the delay in the governor’s outreach until after the nominees were scheduled for their hearing is deeply unfortunate," Sokola said. "We do not take issue with Gov. Meyer bringing forward his own legal analysis that runs counter to the Senate’s; we take issue with his office’s delay in sharing it with the General Assembly. Moreover, we also know that there are existing contracts and deadlines in place at the Port that must be met and are agnostic to changes in political leadership at both the legislative and executive levels.”
In one of his communications, Meyer notes the Senate Executive Committee agenda announcing that confirmations for the DSPC Board would begin Thursday at 10:00am was posted the day before without any communication to his administration.
The resolution passed unanimously in the Senate and with three abstentions in the House, but State Sen. Eric Buckson (R-Camden) said that he is likely to be opposed to the nominations, even if the court's opinion is that Hall-Long's nominations are lawful.
"It has nothing to do with whether or not the governor — the 75th governor [Hall-Long] — had a right. Just because you have a right doesn't mean it's right to do," Buckson said.
State Rep. Madinah Wilson-Anton (D-Newark) was among the three members in the House opting not to vote on the resolution.
"Frankly, I find it embarrassing that our colleagues in the other chamber were not able to be bigger people and just move on for the betterment of people in our state and instead have chosen to tie up the court — possibly tie up the court — in a matter that I think is pretty cut and dry and unfortunately has become a very political conversation," Wilson-Anton said after the vote.
In addition to the General Assembly's request, Meyer sent his own letter to the Delaware Supreme Court requesting an opinion not only on if he has the right to withdraw the nominations, but if the Senate ultimately confirms the nominations, if he has the discretion to withhold issuing commissions to Hall-Long's appointees.
Commissions are certificates signed by the governor officially confirming an individual meets the requirements of the position they are appointed to.
Where the Republican caucus stands
Minority Leader Gerald Hocker (R-Ocean View) and Minority Whip Brian Pettyjohn (R-Georgetown) are the only two Republican members of the seven-member Senate Executive Committee — both voted not to release the four DSPC Board nominees from committee.
"I agree and completely understand that Gov. Hall-Long, when she was governor, they were valid nominees — she had every right, every power to do so — but the question becomes, 'Can the next governor withdraw those nominees for their favored slate of nominees?'" Pettyjohn said. "And until some of those really important questions are answered, I think we should take a pause and really evaluate what's what."
When asked if he has a sense of how the Senate Republican caucus will be voting in the case of the court upholding Hall-Long's nominations, Pettyjohn says they will "more than likely be voting no," citing a similar situation when outgoing Gov. John Carney appointed five members to the newly created controversial Diamond State Hospital Cost Review Board, which is currently facing legal challenges from ChristianaCare.
During the full Senate's vote to confirm the five appointees, all six members of the Republican caucus abstained.
"One of the things that we brought up is that, an outgoing administration making a last minute appointment, when they were walking out the door and the next another administration was coming in, that's kind of one of the concerns we have too," Pettyjohn said. "Again, the slate of nominees, they were great — they were great nominees, we know several of them. Jeff Bullock, we worked with him for many years as Secretary of State, and he did a fantastic job. We're just not sure whether the process is right, and again, if we're going to be consistent, we need to apply the same logic to the [Diamond State Hospital Cost Review Board] nominees and our vote — we've got to apply the same logic here."
The full Senate did not vote on the four nominees, leaving them in limbo until an opinion is issued by the Delaware Supreme Court.
