Emergency Regulation Re: Requirement to Register with and Utilize Federal E-Verify Program

Regulation Authority:

RIGL Section 37-2-9, Chapters 42-35 and 42-11, Executive Order 08-01

Purpose and Reason:

The purpose of these regulations is to implement the provisions of Executive Order 08-01 which mandates that all Executive Branch departments, agencies and personnel shall require that any and all persons and businesses, including but not limited to grant recipients, contractors and their subcontractors, and vendors, doing business with or proposing to engage in a business relationship with an Executive Branch department or agency of the State of Rhode Island certify that said person or business has registered with and is utilizing a federally approved work authorization program/service, such as “E-Verify,” to ensure that newly hired employees of said person or business have complied with all applicable federal immigration laws.

Brief statement of Reason for Finding Imminent Peril:

In accordance with the provision of subsection (b) of R.I. Gen. Laws §42-35-3, as amended, I have approved a regulation entitled “Emergency Regulation Re: Requirement to Register with and Utilize Federal E-Verify Program Pursuant to the March 27, 2008 Executive Order 08-01 (“Illegal Immigration Control Order).” That regulation has been promulgated pursuant to the authority contained in R.I. Gen. Laws § 37-2-9, as amended. THIS REGULATION IS TO BECOME EFFECTIVE EMMEDIATELY UPON FILING WITH THE SECRETARY OF STATE’S OFFICE. Such an effective date is necessary in light of a finding by the Chief Purchasing Officer that any substantial delay might imperil the public health, safety, and welfare and is consistent with the decision of Judge Pfeiffer on September 15 , 2008 in the matter of Rhode Island Coalition Against Domestic Violence et al vs. Donald L. Carcieri, in his capacity a Governor of the State of Rhode Island, et al (C.A. No. 08-5696). That finding is based upon the following: Executive Order 08-01 provides in relevant part as follows: “… Most Rhode Islanders and most Americans are descendants of immigrants from all regions of the world and Rhode Island continues to welcome new immigrants who legally seek the opportunities that the state, its economy, and its resources offer; and ……Congress and the President have been unable to resolve the problem of illegal immigration, leaving the states to deal with the consequences of 11 to 20 million illegal immigrants residing in the United States, the number in Rhode Island being between 20,000 and 40,000, more than the population of 32 of Rhode Island’s 39 cities and towns; and ……[T]he presence of significant numbers of people illegally residing in the State of Rhode Island creates a burden on the resources of state and local human services, law enforcement agencies, educational institutions and other governmental institutions and diminishes opportunities for citizens and legal immigrants in Rhode Island; and ……[I]n 1996 Congress amended the Immigration and Nationality Act, 8 U.S.C. §1373(c), to allow government entities or officials to send to or receive from the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual and the federal government established the E-Verify program to help employers electronically verify the employment eligibility of new hires and the validity of their Social Security numbers; ……” The E-Verify program is an internet based program developed by the federal government that allows employers to verify that newly hired employees are eligible to work in the United States. Paragraph 2 of Executive Order 08-01 requires vendors that are doing business with the state to register and use the services of the E-Verify program. Specifically, that paragraph of the Executive Order provides as follows: “2. The Department of Administration shall require that all persons and businesses, including grantees, contractors and their subcontractors and vendors doing business with the State of Rhode Island also register with and utilize the services of the E-Verify program to ensure compliance with federal and state law.” The proposed rules and regulations attached hereto are intended to carry out the mandate of the above cited paragraph 2 of Executive Order 08-01. The facts and circumstances which lead to the filing of the attached emergency regulation constitute an imminent peril to the public health, safety and welfare necessitating the enactment of emergency regulations in accordance with R.I. Gen. laws 42-35-3(b). Recently more than thirty (30) alleged undocumented foreign workers providing janitorial services in state courthouses under the terms of contracts entered into between two (2) vendors and the State of Rhode Island were taken into custody by the Rhode Island State Police. That brought to light and highlighted a serious lack of safeguards in place to assure that persons and businesses, including contractors and vendors doing business with the State of Rhode Island – many with access to sensitive and/or confidential documents and work areas - are eligible to work in the United States. As a result of the above referenced arrests, the Department of Administration conducted an internal investigation and determined that the two (2) vendors could not provide supporting documentation that their employees were eligible to work in the United States. (One of the vendors acknowledged that he had not even been satisfying the I-9 requirements law. Thereafter, on or about September 15, 2008 that vendor was charged by the U.S. Attorneys Office with engaging in a pattern and practice of hiring aliens for employment, knowing that those aliens were not authorized for employment in the United States. It now has been reported that that vendor has agreed to plead guilty to that charge.) The State determined that it was necessary to suspend both vendors from bidding on future state work and to terminate approximately fifty (50) janitorial contracts between the state and two (2) vendors. With respect to both vendors the Acting Purchasing Agent found that the contractors’ “…… action and lack of action present a clear and immediate danger to the public interest within the meaning of ……Section 8.8.3.8….” of the Purchasing Regulations. The need to terminate those contracts resulted in the need to re-bid all of those contracts causing significant interruption in the cleaning and routine maintenance of approximately fifty (50) state buildings during that process. The above-described experience with two (2) existing entities that had been doing business with the State of Rhode Island for a number of years, made it clear that unless the State took immediate action to enforce the requirement that persons and businesses doing business with (or seeking to do business with ) the State of Rhode Island register and utilize the E-Verify program (or similar federally approved program), it would not be able to ensure compliance with federal and state law and there would continue be a very real, imminent peril to the public health, safety, and welfare. Furthermore, it is imperative to the public health, safety, and welfare of the people of the State of Rhode Island that vital, confidential and/or sensitive information and work areas in all state buildings be secure and that the state have a high degree of confidence that persons and businesses providing goods and services to the citizens of the State of Rhode Island are complying with state and federal laws thereby increasing the probability that there is no threat to their health, safety, and welfare. The State determined that the optimum manner in which to achieve compliance with not only the purposes and mandates of the above cited paragraph 2 of the Executive Order 08-01, to maximize compliance with state and federal law by those doing business with the state and protect the health, safety, and welfare of its citizens was to have the Department of Administration obtain appropriate certifications from persons and businesses doing business with it. In addition to all of the above, the State of Rhode Island is currently in the midst of a fiscal and economic crisis. As a result, it currently has a significant unemployment rate. The State is the largest employer in Rhode Island. Now more than ever, it is imperative for the economic welfare of the State and its citizens that those who are legally eligible to work here are not precluded from doing so. It is critical to their health, safety, and welfare that they be able to seek the opportunities that the State, its economy and its resources have to offer and that opportunities for them are not diminished as a result of the employment of those not eligible to be employed. The health, safety, and welfare of those eligible to be employed requires that the integrity of the work force (i.e. the wages, hours and working conditions) be protected so unfair advantage is not taken by employers having the opportunity and inclination to do so. In addition, the presence of unauthorized workers on an employer’s payroll renders that employer’s workforce less stable and reliable than the workforce of an employer who does not employ individuals who are not eligible to be so employed. The use of the E-Verify program will promptly discourage the hiring of ineligible employees. By requiring that persons and businesses who do business with – or seek to do business with - the State of Rhode Island provide required certifications that they have registered with and are utilizing the E-Verify program, the State increases employment opportunities for those citizens who are eligible to work here while decreasing the probability that individuals who are circumventing state and federal law and not eligible to work here will take away those very opportunities. Thus, enacting the proposed regulations on an emergency basis is necessary to avoid the imminent threat to the economic welfare of both the State and its citizens. To carry out the mandate of Executive Order 08-01, and for the reasons stated above, these regulations are being promulgated on an emergency basis and will become effective immediately upon filing with the Secretary of State’s Office. At the same time that these emergency regulations are filed, the Department of Administration is simultaneously proposing the promulgation of permanent regulations in accordance with the standard notice and commenting process provided for in the Administrative Procedures Act, R.I. Gen. Laws §42-35-3. Comments are welcome and may be sent by December 3, 2008 to the Rhode Island Department of Administration, One Capitol Hill, Providence RI 02908, Attention: Lorraine Hynes, Division of Purchases.