City, county may pay Prop. 200 fees, fines
Arizona Daily Star Capitol Media Services
Nov. 11, 2004

Joe Burchell and Howard Fischer

The state and the city of Phoenix will pay legal fees and fines for their workers charged with criminal violations of Proposition 200, and Tucson and Pima County will soon consider doing the same.

 Democratic Councilman Steve Leal has asked the Tucson City Council to follow the lead of its Phoenix counterpart, which voted unanimously Wednesday to pay those costs for employees charged under the law requiring them to report illegal immigrants who apply for public benefits.

 Proposition 200, approved by 56 percent of Arizona voters in last week's election, makes it a misdemeanor to violate the reporting requirement, punishable by a fine of up to $750, up to four months in jail and up to two years of probation.

 "We need to find a way to protect our employees so they're free to do their jobs," Leal said. "We can't leave our employees in some never-never land lurch where they can get whacked out of the blue."

 He has asked the council to consider the issue on Nov. 22, the day election results are certified and the law takes effect.

 The potential cost to taxpayers is unknown.  

While governments typically defend their employees from civil suits stemming from their jobs, which is also possible under Proposition 200, the potential for criminal charges adds a new wrinkle.  

Tucson already has a seldom-used provision for defending employees accused of criminal violations as long as they're acting within the scope of their job and following city regulations, said City Attorney Mike Rankin. But whether that covers paying any criminal fines needs further research, he said.  

Pima County Administrator Chuck Huckelberry said the county has no such provision, but he will support adopting one if it's determined the law applies to county workers.  

Proposition 200 could end up affecting as many as 32,000 government employees in Southern Arizona.  

State government employs more than 10,000 full-time workers at the University of Arizona alone, plus another 9,700-plus in Southern Arizona. Pima County government has nearly 7,000 full-time employees and the city of Tucson has nearly 5,500.

 The UA, other state government, Pima County and Tucson are four of the top 10 employers in the region, according to the Star's 2004 jobs survey.  

City and county officials said they want to see a much-anticipated opinion from Attorney General Terry Goddard - expected late this week - about what services and governments Proposition 200 applies to before planning their next moves.  

The measure requires public employees to check the immigration status of applicants for "public benefits," a term not defined in the initiative.  

Public workers will also be required under Proposition 200 to file written reports with federal immigration officials about people not here legally. The measure also permits any Arizona resident who believes the law is not being obeyed to file suit to demand compliance.  

Rankin said it's impossible to speculate how much it might cost to defend Proposition 200 cases with no way to guess how many there might be, what court they would be heard in and whether there would be appeals.  

Huckelberry believes the minimum cost would be $5,000 to $10,000 per case.  

Phoenix City Council members explained their votes Wednesday: "It's a matter of fundamental fairness that we stand up for our employees," said Councilman Greg Stanton, while Tom Simplot called the decision "a no-brainer."

 Tim Nelson, chief counsel to Gov. Janet Napolitano, said Wednesday the state, too, will pay legal expenses, even for criminal cases, for any of its employees who follow the guidance of the attorney general's opinion.

 "We'll do everything we can to protect employees who make a good-faith effort to comply with state law," said Nelson.  

For example, he said, Goddard's opinion may say a particular agency doesn't provide "public benefits" and is not covered by Proposition 200.

 Nelson said that if someone sues an employee of that agency anyway - or a prosecutor brings charges - then it is the obligation of the government to protect that worker.  

State and local officials became particularly alarmed earlier this week when Randy Pullen, chairman of the Yes on 200 Committee, said the initiative covers far more than just welfare benefits - and far more than just state services. He said its scope could reach as far as requiring city employees to check whether applicants for library cards are legal residents.  

But not every supporter of the law supports Pullen's view of what is covered.

 State Rep. Randy Graf, a Green Valley Republican, said the cities' actions are understandable but unnecessary.

The law applies to benefits administered through the state welfare code and doesn't affect cities, Graf said.

 He said city proposals to indemnify employees for criminal violations just "contribute more to the hysteria" that he said many in government tried to generate in opposition.

 If a court does interpret the law as applying to the cities, Graf said it would be inappropriate for taxpayers to have to foot the bill for an employee's criminal behavior.

 But he said, "That's for the cities to decide."

 Rep. Russell Pearce, R-Mesa, who helped write Proposition 200, said he has no problem with taxpayers' picking up the tab if someone files suit against a state worker - as long as the employee is acting in good faith.

 Leal said he's not committed to the Phoenix plan if Tucson can come up with something better, but he wants something done because employees can't do their best work if they're constantly living in fear that every time they provide a service to the public, it could come back to haunt them.

 Huckelberry said there should be no question about defending employees' actions, "unless they're blatantly ignoring the law."

 If the law does apply to county government, he said, the first thing needed is complete, clear rules about how Proposition 200 will be followed, in order to differentiate between knowing and inadvertent violations.

 The one thing that could hold up that enforcement beyond Nov. 22 is if the Mexican American Legal Defense and Education Fund succeeds in getting a federal judge to block enforcement while the measure's constitutionality is evaluated.

 ● Contact reporter Joe Burchell at 573-4244 or at