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Loudoun To Start Cracking Down On Contractors
By Greg L | 3 December 2007 | Loudoun County, Illegal Aliens | 2 Comments
Prince William isn’t the only county looking at the illegal alien issue, of course. Various localities in Virginia have been looking at different aspects of the problem, from residential overcrowding, to employer sanctions and taxpayer-funded daycare programs, in an attempt to find legally sustainable and practically effective means of helping to ensure federal immigration law isn’t flouted in Virginia. Loudoun County has been working on a parallel track for quite some time, and tomorrow is scheduled to consider one of the issues that has been under discussion in Manassas and Prince William County for several months now.
One of the more egregious problems has been that localities will contract work out rather than have their employees do things like street repaving, and there has been a perception that some of these contractors may be either directly hiring illegal aliens, or subcontracting work to firms that do. A Washington Post article this summer highlighted the problem when they interviewed a few VDOT contractors who admitted they were illegal aliens and crowed about how they would unlawfully re-enter the United States immediately if they were caught and deported. Some mechanism certainly should be identified to ensure that taxpayer dollars aren’t used to pay the salaries of illegal aliens, and it would appear that a locality would have pretty broad discretion in what contract language is used in its contracts.
It turns out that the Commonwealth has already gone down this path to some degree, and currently inserts the following language in state contracts:
“By signing this contract/purchase order [or submitting this bid, proposal, or quote], the Contractor/Bidder/Offeror/Vendor certifies that it does not and will not during the performance of this Contract, violate the provisions of the Federal Immigration Reform and Control Act of 1986, which prohibits employment of illegal aliens.”
Adding this language to Loudoun County contracts is what the Loudoun board will consider tomorrow evening. Unfortunately while this sound great, in practice it doesn’t really seem to be all that effective. Remember those guys working for VDOT in that Washington Post article? Despite the presence of this language, there clearly were illegal aliens working for this contractor, and it didn’t seem that this contract language had been effective. The Loudoun County staff briefly discussed this in the agenda packet for the Committee of the Whole that met on November 29th:
If a contractor is found to be out of compliance with the Immigration Reform and Control Act, as with any other contractual term and condition, the contractor could be found in breach of contract and the county could initiate contractual termination proceedings or provide the contractor with a “right to cure” period in which the contractor is afforded the chance to correct non-compliance. Though the Board asked staff to provide information regarding an audit function, staff has not offered this at this time since local enforcement authority is highly questionable.
The problem here stems from an opinion by the Attorney General’s office requested by Delegate Bob Marshall this fall. Delegate Marshall asked about the legality of requiring businesses to sign an affidavit stating that they would not employ illegal aliens, and the non-binding opinion by Deputy AG Stephanie Hamlett broadly said that a locality could not impose such a requirement. The question asked did not mention the issue of language within municipal contracts, but seemed to involve a broader issue of whether a locality could require such an affidavit as a requirement of granting a business license. Nevertheless, because this opinion gave a broad and sweeping answer which could encompass a multitude of potential scenarios, the effect has been to chill actions by municipalities to address this issue.
One proposal which has been informally discussed is to require that all those performing work under a municipal contract to be screened under the federal E-Verify Program, with a provision that in case of some administrative error that resulted in an employee being falsely identified as an ineligible worker, some sort of affidavit as to the employee’s work eligibility would be accepted while the cause for the error was being addressed. Localities do, and should have broad powers to define their own contract language, subject to state and federal laws which ensure fairness and non-discrimination in awarding contracts, and regardless of the Deputy AG’s opinion here, it would appear to be legally permissible to ensure that local government doesn’t work at cross-purposes with federal immigration law.
Replicating the largely useless language used by the Commonwealth to discourage contractors from using illegal aliens on state contracts at the locality level won’t hurt, but we really need to find a better solution here. It’s enraging that government is one of the largest employers of illegal aliens in the Commonwealth, and before it starts trying to crack down on employers, which it needs to do, state and local government needs to get its own house in order here.
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The problem is that the IRCA (8 USC 1324a) is violated only if the employer knowingly hires 10 or more illegals. If he hires only 9, they could work on a Loudon contract and the employer would not be in violation of the above certification. Applicable language:
(3)(A) Any person who, during any 12-month period, knowingly hires
for employment at least 10 individuals with actual knowledge that the
individuals are aliens described in subparagraph (B) shall be fined
under title 18 or imprisoned for not more than 5 years, or both.
What is needed is a contractual provision requiring all government contractors to certify that they use E-Verify to insure that their entire workforce (not just those working on government contracts) is comprised of legal residents. The State and localities have an interest in insuring that their citizens’ tax money is being trickled down only to legal residents, therefore such a contractual provision would be constitutional. Anything less is just pissing in the wind, and should be scoffed at as such.
E-VERIFY USE IT!