UFIRE SB 81 Compliance Report

 

UFIRE Investigates SB 81 Compliance


In a recent list of Utah businesses who had registered to use Everify, members of UFIRE (Utahns for Immigration Reform and Enforcement) discovered that very few Utah government entities had applied for. Everify is the Department of Homeland Securities employment verification database designed to minimize the hiring of illegal aliens.

SB 81, Illegal Immigration, was enacted in 2008, for implementation July 1, 2009. The law required all Utah public employers to register with and use a Status Verification System and to only make contracts with companies using such employment verification.

Noting that Utah School Districts, an easily discovered group on the list, indicated less than 30% compliance; an Email was sent to all of the districts requesting information on why they were not registered and language being used to comply with the contractor requirements.

Within less than 24 hours, five districts responded with information. The first response received was informative: Prior to reading your email, *** School District was not participating in a status verification system.  Upon reviewing the information provided, we have decided to enroll in the E-Verify system and that registration is complete.”

Gaylan Stewart, UFIRE member wondered, “Why were they not aware of SB 81? Didn't they hear of the two year debate on the issue? Didn't the State Office of Education and the districts' own legal counsel advise them of the requirement?”

Two weeks after the query was sent, nine additional School Districts have applied for Everify bringing the compliance total to over 50%. Two compliant Districts sent their contract language which has been forwarded to those districts lacking any rules for contractors.

An unsolicited Email from the USOE was received stating, ”Just a suggestion from the Utah State Office of Education (USOE)—your list and directives should include the requirement that public charter schools also use everify for their employees.  I am certain that most charters schools have never even heard of the process.” A response was made that UFIRE was not able to issue directives and to ask USOE if they were compliant. To date, no answer has been received.

Several Utah legislators have been contacted and are aware on the non compliance and are investigating methods of securing compliance.

Robert Wren, UFIRE Chairman, reports that the investigation is continuing in other entities and that the preliminary report is availble at www.ufire.net including all of the email exchanges. “There is no excuse for ignoring SB 81. It is a simple procedure that assists in enforcing Federal law prohibiting the employment of 'undocumented' immigrants. More Utah employers should take advantage of the free system, currently just two percent do.”

 
 
***************   ***************  ***************  ***************  ***************  

The DHS Everify registrant list of 29 October showed that 12 of 41 Utah School Districts were signed up for the program. UFIRE sent an Email to all 41. (UFIRE did NOT target schools as such, they were fairly convenient to find in the registrant list and Emails were available.  In fact they are probably among the least of the systemic problem with hiring illegals in Utah.  The problem of SB 81 compliance is woefully inadequate by MOST public entities.) :

Email sent to Everify registered Schools:

In a recent Department of Homeland Security list of Everify registrants, your school district was listed as one, of only 12 school districts, using the program. Thank you for your compliance with the law.

The State of Utah not only specifically requires that all taxpayer entities hire only legal workers, but also that they insure that their contractors and subcontractors check the legal status of all employees placed on public projects after July 1, 2009.

"a public employer may not enter into a contract for the physical performance of services within the state with a contractor unless the contractor registers and participates in the Status Verification System to verify the work eligibility status of the contractor's new employees that are employed in the state;"

Under the provisions of the Government Records Access and Management Act  63G-2-201.   Right to inspect records and receive copies of records, we hereby request  those sections of contracts, or the governing rules, that show the necessary steps taken to conform to the contractor portion of the law.

Email to Non Compliant Schools:

In a recent Department of Homeland Security list of Everify registrants,  your school district was not listed.  The 2008 Utah Legislature passed SB-81 which was signed into law by the governor. Utah Code  63G-11-103 Status verification system -- Registration and use -- Performance of services -- Unlawful practice.) went into effect July 1, 2009.

"Each public employer shall register with and use a Status Verification System to verify the federal employment authorization status of a new employee."

The State of Utah not only specifically requires that all taxpayer entities hire only legal workers, but also that they insure that their contractors and subcontractors check the legal status of all employees placed on public projects after July 1, 2009.

"a public employer may not enter into a contract for the physical performance of services within the state with a contractor unless the contractor registers and participates in the Status Verification System to verify the work eligibility status of the contractor's new employees that are employed in the state;" 

 E-Verify is a free program provided by the federal government that checks on-line for legal status.  If you are using another program, please provide us with that information.

It is, of course, illegal for anyone in the United States to hire non-citizens without proper work visas.(U.S Code Title 8 Sec 1324a)  

Under the provisions of the Government Records Access and Management Act  63G-2-201.   Right to inspect records and receive copies of records, we hereby request  those sections of contracts that show the necessary steps taken to conform to the law and an explanation of what other verification system you might be using to comply with the hiring law.

Under this request  you must respond within 10 working days unless you cite a legitimate reason for delay.  If you are unable to supply this information would you please explain what steps you are taking in order to conform to the law.

Responses (as of 22 Dec, from the 37 valid Email addresses, there have been 15 responses and 9 Everify sign-ups):

2 Dec 9:21 AM

Thank you for your inquiry. 

 Prior to reading your email, Emery School District was not participating in a status verification system.  Upon reviewing the information provided, we have decided to enroll in the E-Verify system and that registration is complete.  We will be using it for all new hires.  For your information, we have always been compliant in requiring appropriate documentation for new hires and I am confident that Emery School District has not made illegal hires.  As a District, we were unaware of the new requirement for a status verification system so we appreciate your making us aware.

 Since July of 2009, we have not entered into any contracts for the performance of services (we usually sign most of our service contracts in the Spring of each year).  For all future contracts, we will be including language requiring the contractors to also be compliant with these new requirements.

 I hope this answers your questions and please reply if you need any additional information.    

Jared Black
Business Administrator
Emery County School District



2 Dec 10:24 AM

Please note item 14 on our form that goes out with every RFP. 

Thank you for your interest.

 Sincerely,

 Martin W. Bates, J.D., Ph.D.
Assistant Superintendent
Administrative & Legal Services

14. EMPLOYMENT STATUS VERIFICATION SYSTEM: Offerors certify, under penalty of perjury, that the contractor has registered and is participating in the Status Verification System to verify the work eligibility status of the contractor’s new employees that are employed in the State of Utah in accordance with UCA Section 63G-11-103. The Contractor shall require that the following provision be placed in each subcontract at every tier: “The subcontractor shall certify to the main (prime or general) contractor by affidavit that the subcontractor has verified through the Status Verification System the employment status of each new employee of the respective subcontractor, in accordance with Section 63G-11-103 and to comply with all applicable employee status verification laws. Such affidavit must be provided prior to the notice to proceed for the subcontractor to perform the work.” Granite School District will not consider a proposal for award, nor will it make any award where there has not been compliance with this Section. Manually or electronically submitting the Proposal is deemed the contractor’s certification of compliance.

2 Dec 12:37 AM

Sevier School District is in the process of registering with E-Verify.
As per their web instructions, our lawyer has been reviewing the MOU agreement and will advise us with in two to three weeks. Once the review is complete, we will then register. If this information does not satisfy your GRAMA request, please let me know.
Thank you.
Gary Kyhl
Director – Human Resources
Sevier School District
2 Dec 3:16 AM

I am the Human Resource Director for the Provo School District.  The Superintendent asked me to answer your questions.  Before I do so I need to clarify your questions.

Are you asking to see our policies on checking the status of all new employees?
Are you asking to see the rules that we follow in using the Everify system?
Are you asking to see our procedures in checking the work status of new employees to our District?
Are you requesting only information related to contractors that work for our District and what sort of contract they sign before they do work for the District?
 
Bob Gentry
Director of Personnel
Provo School District


RESPONSE: My apologies for the lack of clarity.  As a user of Everify, I assume you
are checking all new hires.  My question is basically your fourth one.

What are your rules to guarantee that businesses you contract with are using Everify and how does the Provo School District ensure their compliance? 63G-11-103 Status verification system -- Registration and use -- Performance of services -- Unlawful practice.)   (e.g. clause in your request for proposal, checking the Everify user list, requiring copy of the MOU, random checks to see if compliance is being met, . . .)

Thank you for your prompt response.

(No further response has been received from Provo)

2 Dec 4:50 PM

South Summit School District does not currently have any contracts with outside contractors.  The district has enrolled to use the Social Security Administration’s Business Services Online to verify social security numbers and the district is also in the process of enrolling in the E-Verify program.  All new employees are required to complete an I9 form.

 Kip Bigelow
Business Administrator

4 Dec 11:44 AM

Superintendent Sorensen has asked that I respond to your recent e-mail.  Nebo School District is very much aware of our legal responsibilities in regards to E-Verify, both for our own employees and for our contractors.  In regards to your inquiry on what Nebo School District is doing with our contractors to assure compliance with the Status Verification System as per Utah Code Ann., §63G-11-103, we have always required in our bids, RFPs, and contracts that our contractors be in compliance with “any and all applicable federal, state, and local laws, regulations, rules, and building codes.”  In addition, I have added language to our Bids, RFPs, and Contracts regarding specific compliance with the Status Verification System as per Utah law. 

The following provisions have been added to our RFPs (please note that this was copied from one that is specific for Architectural Services):

Contract Documents:

The selected architectural firm will be required to sign an Agreement with the District for the project(s). The District intends to enter into an Agreement with the selected architectural firm to provide the design and construction period services for the Performing Arts Additions/Remodels at Payson High School, Spanish Fork High School, and Springville High School, on terms and conditions determined by the District to be fair and reasonable to the District.  The Agreement shall be signed by the selected architectural firm and returned, along with any required documents, to the District within five (5) working days.  The Agreement is of no effect until approved and signed by the appropriate officials of the District.  Any work performed by the architectural firm prior to receipt of a fully executed Agreement shall be at the firm=s own risk.  Failure to execute the Agreement or comply with other requirements within the time periods identified herein shall be sufficient cause for voiding the award.  If the selected architectural firm refuses the award or fails to execute the Agreement, the District may award the contract to the next qualified highest ranked architectural firm.  Prior to the execution of the Agreement, the selected architectural firm shall provide documentation to the District that it has registered and participates in the Status Verification System (the electronic verification system operated by the federal government known as E-Verify) to verify the work eligibility status of the architectural firm’s employees.  In addition, the selected architectural firm shall also obtain affidavit certification from all engineering firms and other subcontractors who are utilized on this project(s) that they have verified the work eligibility status of their respective employees through the Status Verification System (E-Verify).  See Utah Code Ann., §63G-11-103).

E-Verify Certification:

The architectural firms shall provide documentation to the District that it has registered and participates in the Status Verification System (E-Verify) to verify the work eligibility status of the architectural firm’s employees (see Utah Code Ann., §63G-11-103).  Firms are to submit this documentation with their proposal. 

In addition, I have added the following language in our standard Agreement with our Contractors: 

E-Verify CertificationContractor shall provide documentation to the School District that it has registered and participates in the Status Verification System (the electronic verification system operated by the federal government known as E-Verify) to verify the work eligibility status of the Contractor’s employees.  In addition, Contractor shall also obtain affidavit certification from all subcontractors who are utilized in the performance of the Work that they have verified the work eligibility status of their respective employees through the Status Verification System (E-Verify).  See Utah Code Ann., §63G-11-103. 

Nebo School District had a bond approved by the voters in June of 2009.  Accordingly, we are in the process of working towards the construction of new schools.  We utilize the Construction Manager / General Contractor delivery method of construction on our large construction projects.  I am currently working with outside legal counsel to update our CM/GC RFPs and Agreements.  In doing so, we will update our documents to be current with all applicable laws, including Utah Code Ann., §63G-11-103.  I would imagine that the provisions I have previously drafted will be somewhat similar to those in the CM/GC documents. 

Should you have any further questions, please contact me. 

Reed B. Park
District Legal Counsel
Nebo School District
350 South Main
Spanish Fork, Utah  84660
 
4 Dec 2:58 PM
 
Just a suggestion from the Utah State Office of Education (USOE)—your list and directives should include the requirement that public charter schools also use everify for their employees.  I am certain that most charters schools have never even heard of the process.
Carol Lear, Director,
School Law and Legislation
Utah State Office of Education
 
Response:   Thank you for your e-mail and your "suggestion from the Utah State Office of Education (USOE) that your [UFIRE] list and directives should include the requirement that public charter schools also use everify (sic) for their employees. I am certain that most charters schools have never even heard of the process."

We are somewhat confused as to why you would suggest that UFIRE issue directives to either public or charter schools since we obviously have no such authority. We can inquire as to current practices, bring state law to the attention of the districts and ask what they are doing to comply with the law which we have done; however, we cannot issue directives.

When we reviewed the list of employers who have signed up for E-Verify in Utah, we found that most school districts were not on the list. We, therefore, contacted school districts with an open records request, received responses from many and found that many were unaware of this important legal requirement.
 

We received the following response from one school district:
"Prior to reading your email, **** School District was not participating in a status verification system. Upon reviewing the information provided, we have decided to enroll in the E-Verify system and that registration is complete."

We also received contract language from two school districts that might be helpful for all other districts. This raises the question of why each district needs to have their own lawyers write separate language. If USOE has not already provided suggested contract language for both traditional public school districts and for the charter school board and schools, we would be happy to forward the contract language that we received to you for review and forwarding to those districts and schools not yet in compliance.

It is of very serious concern to us that the USOE has not already issued information about the requirement for Utah’s public schools and their contractors to use E-Verify to all school districts, both the state public and charter school boards and to all public and charter schools since this requirement has been in effect since July 1, 2009. After all, according to the USOE website, "The USOE provides information and direction relating to public education policy, procedure and program implementation. Staff at USOE provides statewide service, support and direction to local school districts and charter schools."

We, therefore, formally request that you immediately take action on this critical initiative to protect Utah’ children from identity theft and advise us of when this has been done.
 
Under the provisions of the Government Records Access and Management Act 63G-2-201. Right to inspect records and receive copies of records, we hereby request those sections of contracts that show the necessary steps taken to conform to the law and a copy of MOU with the Department of Homeland Security for using Everify for the hiring of USOE employees or an explanation of what other verification system you might be using to comply with the hiring law.
 
(No response has been received from USOE)

The response to USOE  was forwarded to Legislators with these comments:

As members of the Education Committee, et al, I felt you might be interested in this exchange with Carol Lear, Director, School Law and Legislation, Utah State Office of Education. 

A bit of background, after writing an OpEd on the woeful compliance with SB 81, I Emailed all 41 School Districts with a GRAMA request for an explanation of not signing up for Everify and for "sections of contracts, or the governing rules, that show the necessary steps taken to conform to the contractor portion of the law."   (Nothing was sent to USOE.)  

I have received an excellent response so far (4 bad addresses, 1 phone call and 8 emails).

This unsolicited response leads me to wonder what is the function of the USOE and what is Utah getting for its 14% of  the education budget,  (nearly $40 million annually ??) and to humbly suggest this might be a great place for some substantial budget cuts!!! 

"The School Law and Legislation Section at the Utah State Office of Education (USE) is responsible for providing information and direction to school districts, . . . We are responsible for tracking legislation . . . including rules on charter schools . . . We also work with the Office of the State Attorney General in addressing legal issues . . . inservice to school district personnel concerning current legal issues, . . . and legislation."  http://www.schools.utah.gov/law/



8 Dec 11:00 AM

North Sanpete School District is in the process of registering with E- Verify.  Information on new hires will be submitted soon.  Our  district policies and procedure ensure that all new hires meet legal  requirements.
Due to budget issues (building projects requiring contractors) we have no records related to this issue.

Courtney D. Superintendent
North Sanpete School District


8 Dec 11:14 AM

The Piute County School District is using the E-verify system through the Utah State Office of Education, which is why our district is not registered individually with E-verify.  We submit  the entire payroll to the E-verify system twice a year through the Utah State Office of Education and verify in person any discrepancies with the Social Security Administration.
 
If you have additional questions please contact Max Keiffer at the Utah State Office of Education at 801.538.7934.
 
Sincerely,
Jeff Barben
Business Administrator
Piute County School District

After speaking with Mr. Kieffer, who knew very little about Everify, this was sent to him:

Below is the Email I had sent to school districts. and Piute's response.  Here is an overview of the differences between Everify and SS number scan.
 
There is also a requirement in SB 81 concerning all contractors dealing with public entities to use Everify.”
 
(No further response has been received from USOE)

8 Dec 7:39 PM

This is to acknowledge receipt of your GRAMA request.  I have forwarded it to our public information officer, Jennifer Toomer-Cook, for review and response.

Sincerely,

David S. Doty, J.D., Ph.D.
Superintendent
Canyons School District

(Comment: We have played phone tag with Jennifer Toomer-Cook)

9 Dec 1:12 PM

Superintendent Robert Johnson has asked me to reply to your e-mail dated December 1, 2009 regarding SB-81.  You have requested information about any contracts we have entered into as of 7-1-09.  This letter is to inform you that we have not, as yet, entered into any contracts as of that date.  We are in the process of meeting the requirements for SB-81 and we are registering with the E-verify system.  The employees we have hired this year are all legal and we have been verifying them through the I-9 process.  We have copies of their social security card, drivers licence, and have performed a background check on each new employee.

Please let me know if I can assist you further,

Jeannie Petersen
746 S. 175 E.
Kanab, Utah  84741
Kane County School District


9 Dec 2:53 PM

Wasatch County School District does not have any records that are
applicable to the GRAMA request.


Thank you,
Keith Johansen
Business Administrator
Wasatch County School District

(cc'd to School Board et al)

Response: This Email request was sent to 41 Utah School Districts.  We have received gracious and helpful responses so far from about 10 Districts providing the information requested or appropriately responding.  

We are well aware that Wasatch School District IS "one, of only 12 school districts, using the (Everify) program."  

We have received from two other compliant Districts their written clauses concerning contractors in a Request for Proposal form.   

This response is, at best, ridiculous. "Wasatch County School District does not have any records that are
applicable to the GRAMA request."
   Perhaps the request was unclear, but other districts had no trouble understanding and responding. 

The district is either complying with 63G-2-201, or it is not. Either there is written language, or there is not. If you are complying, then you certainly should be able to provide the information explaining that compliance. If you do not have written language, we would be happy to provide that given from other districts to help you. 

(No further response has been received from Wasatch)


Sent: Thursday, December 10, 2009 8:06:28 AM GMT -07:00 US/Canada Mountain
Subject: SB81

FYI, my office presented to all the school districts in their most recent meeting on SB81, reminding them of the provisions of the law and of its applicability to them.  We’ll be presenting the same information very soon to all charter directors. 

Larry (Shumway – USOE Superintendent)


11 Dec 4:09 PM

I am writing this email to inform you of what has occurred in the district since receipt of your email.

The Logan City School District was not aware they were out of compliance with SB 81.  We have now registered with E-verify and will begin reviewing all new hires through this process. 

We have not had any new contracted services begin since July 1, 2009 so have not had an opportunity to comply with the other portion of the law in regards to outside contractors. 

Thank you for your notification to our district.  If there is anything else I can assist you with, please feel free to contact me.

 

Sincerely,
Marshal Garrett
Superintendent
Logan City School District


13 Dec 1:45 PM


I appreciate your making us aware of E-Verify. We are taking steps to insure that we utilize E Verify in the future. The District has hired less than a handful of employees since July 1of this year when the law went into effect.  All of these are local people who have lived in the area for years. The District has also not entered into any agreement with contractors since the July 1 date.  


Thank you for your concern.

Kirk L. Wright
(Juab School District)


14 Dec 9:58 PM

Good morning!  In response to your request, I am notifying you that the San Juan School District enrolled in E-Verify on December 3, 2009 and that we have already started using it.  I have attached a copy of our E-Verify Enrollment Confirmation email as verification of our enrollment.  At the time we received your email, we were already in the process of trying to meet this requirement, so your email was very timely.  Even though our delay may not appear to be justified, we were trying to get information from other entities on how this program works.  As a remote rural school district, such changes can have a major impact on how our district does its daily business. 

 Prior to our enrollment, we used the I-9 form for Employment Eligibility Verification.  Now in all future employment actions, we will be using E-Verify.

 In your request, you stated, “we hereby request  those sections of contracts that show the necessary steps taken to conform to the law.” I am assuming that our attachment meets this request.  If not, please provide me with the necessary clarification so that I can provide you with the information that you are requesting.

 If you have any other questions, please do not hesitate to give me a call or to email me.

 Thank you for reminding us about this important requirement of SB 81.

 Sincerely,    

 Kit Mantz
Human Resources Director
San Juan School District



17 Dec 4:22 PM

We have registered with E-verify and set up a procedure to verify each new employee as they are hired through the system.

If you need any further information please let me know

D'Lynn Poll
Business Administrator
Morgan School District
801 829-3411

This response, (or similar) has been sent to several districts who had not previously applied:

Thank you for your response and your compliance.   

There are now at least 20 Districts who have registered to use Everify, or are in the process of doing so.   Click here to see the list, or go to www.ufire.net for more information.   

Superintendent Larry Shumway, of USOE, has indicated that his "office presented to all the school districts in their most recent meeting on SB81, reminding them of the provisions of the law and of its applicability to them."  

Here is Contract language submitted by other districts which may be helpful to you, (we believe it would also be helpful to obtain the Contractor's Everify MOU):

(Contract Language - see above - from Granite and Nebo Added )




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