Funds reveal how Maricopa, other counties differ on law
by Craig Harris - Nov. 8, 2009 12:00 AM

In 2007, lawmakers passed the Legal Arizona Workers Act in an attempt to stem the tide of illegal immigration by going after employers who knowingly hire undocumented workers.

The law provided millions of dollars to county attorneys in Arizona to prosecute such cases.

Two years later, amid a deepening financial crisis, at least $1.44 million is sitting idle, according to interviews and records examined by The Arizona Republic. Prosecutors from nine of the state's 15 counties say money has accumulated and remains unspent because there have been so few complaints about employers violating the law.
But in Maricopa County, where County Attorney Andrew Thomas has teamed with Sheriff Joe Arpaio to crack down on illegal immigration, nearly all of the $2.86 million provided under the law has been spent.

Thomas has used more than half of the money to pay for 10 staff members, including seven attorneys, to prosecute identity theft and a handful of other crimes related to illegal immigration. He gave the rest to the Sheriff's Office to investigate alleged violations of the employer-sanctions law, and those funds were used to pay the salaries of six deputies and a sergeant and for leased vehicles for them to drive back and forth to work.

After two years and nearly $5 million in taxpayer money allocated statewide, how the money has been used and the results seem to be a matter of diverse interpretation.

The legislation directed county attorneys to use the money to enforce the employer-sanctions law and "any immigration related matters." Thomas' interpretation embraced the "immigration related," as he used the funds to also prosecute human smuggling, kidnapping and weapons violations involving illegal immigration.

Other county attorneys around the state saw the focus as employer sanctions and have spent very little as they have received few complaints or cases to prosecute involving employers.

Since the law went into effect Jan. 1, 2008, it has produced:

• Zero lawsuits filed against employers in Arizona.

• More than 300 arrests in Maricopa County, most for identity theft and forgery.

• Arrests of 105 individuals from Maricopa County who were later turned over to the federal government to be deported.

Critics say the law has created an anti-business climate in Arizona, and they question what the state is getting out of the nearly $5 million allocated for enforcement. The U.S. Supreme Court has indicated it is interested in hearing an appeal from business groups that have been trying to have the controversial law thrown out. On Monday, the high court asked the Obama administration to weigh in on the issue before the justices decide whether to take the case.

"When a state is facing a $2 billion deficit, should we be spending money on an issue that's the federal government's responsibility? Absolutely not," said Glenn Hamer, the Arizona Chamber of Commerce and Industry's chief executive. "There are a lot better places the money could be spent in Arizona, including education and health care."

Thomas said state funding gives him the resources to fight illegal immigration.

"There has been more than a 30 percent reduction in the illegal-immigration population in Arizona over the last two years," said Thomas, citing a Center for Immigration Studies report. "I don't think it's coincidental the reduction has occurred right after the employer-sanctions law went into effect."

The funding, however, could end because of the state's financial problems. The state has not released the $2.43 million allocation for this year, and a spokesman for the Department of Administration said the funds could be used to help lower the deficit. If no additional money is released, Maricopa County likely would be out of dedicated funds to enforce the employer-sanctions law by mid-January, forcing Thomas and Arpaio to make budget cuts.



Unspent money

When Arizona lawmakers passed the legislation, it was considered the toughest employer-sanctions law in the country. Other states have used it to pass similar laws. The Legal Arizona Workers Act has since survived court challenges to the 9th U.S. Circuit Court of Appeals.

The law requires employers to use the federal E-Verify system, an electronic program used to certify that employees are legally authorized to work, and allows county attorneys to file civil lawsuits against employers who knowingly or intentionally hire illegal workers.

Penalties are severe: Employers can have their business licenses suspended or revoked.

The law broadened the definition of identity theft to allow charging illegal immigrants with a felony when they use fraudulent documents to get hired, even if the numbers on those documents are fictitious and no real identity has been stolen. It was amended last year to apply only to workers hired after Dec. 31, 2007.

To help enforce it, the Legislature provided funding for Arizona's 15 counties. Those with the biggest populations got more. The state Department of Administration distributed $2.43 million in 2007 and in 2008 in general funds.

Maricopa County received $1.43 million a year. Pima County, the second-largest, received $500,000 a year. The remaining $500,000 per year was divided among the other 13 counties.

The Department of Administration is holding this year's distribution to comply with Gov. Jan Brewer's directive for state agencies to find 15 percent in potential spending reductions. Alan Ecker, a Department of Administration spokesman, said because his agency relies so heavily on fees for services, the employer-sanctions money was one of the few general-fund sources that could be identified to meet Brewer's goal.

"We will wait for the governor and the Legislature to evaluate if we make that payment or if it's something that can be swept to the general fund," Ecker said

The law also allocated $100,000 annually to the Attorney General's Office.

Anne Hilby, a spokeswoman for Attorney General Terry Goddard, said that the law didn't give Goddard's office the authority to file cases and that the cost to develop complaint forms and put employer-sanctions information on the office's Web site was minimal. She said the first installment never was spent and a second one wasn't received. She said the Legislature took back the original $100,000 this year to help with the state's budget problems.

Nine counties - Pima, Pinal, Mohave, Yavapai, Yuma, Apache, Gila, Greenlee and La Paz - have a combined $1.44 million in unused funds, according to those counties. The law gives no direction on what to do with unused funds.

"It has become an albatross. I don't know what to do. It's here if I need it, but I haven't had to use it," said Yuma County Attorney Jon Smith, who has $128,883 in unused employer-sanctions money. "I have gotten only three or four complaints since the statute was enacted . . . and they were determined to be unsubstantiated."

The biggest amount of unused money is in Pima County, which has $888,454 remaining from its $1 million in allocations.

"We only have one current investigation open," said Dan Jurkowitz, Deputy Pima County Attorney. "Several of them were closed out when the Legislature amended the law (on the enforcement date). There's not a whole lot to report."

Other counties did not return calls or were unable to provide details of how much employer-sanctions money was spent.


Maricopa spending

In Maricopa County, Thomas and Arpaio have become political allies working together to fight illegal immigration. Maricopa County is the only county where a county attorney shared the money with another agency.

Through October, according to public records obtained by The Republic, Maricopa County had spent about $2.5 million of its allotments. There is $321,225 remaining, but based on current spending for the fiscal year that began July 1, the money will be gone by mid-January.

The County Attorney's Office has interpreted the law as giving wide discretion in fighting illegal immigration beyond employer sanctions. Along with prosecuting identity theft from cases, the money has been used to prosecute human smuggling, kidnapping and weapons violations, according to records obtained by The Republic.

Since the 2007-08 fiscal year, $1.48 million was used to fund seven full-time attorneys, one full-time paralegal, one full-time victim advocate and half of the salary of a full-time supervisor.

The Sheriff's Office has received slightly more than $1 million since the law took effect and used the money to fund six deputies and a sergeant to investigate more than two dozen employer-sanctions cases. Many complaints come in via a hotline. Nearly $105,000 (or currently $6,075 a month) has been spent since 2008 to lease new vehicles that are driven back and forth to work by the officers.

Julie Pace, an immigration attorney who has opposed the employer-sanctions law, said using state funds for leased vehicles is an unnecessary perk.

"It's being used as a tool for a slush fund," Pace said. "I would find it hard to believe legislators would be supportive of this. There also doesn't seem to be any reporting back to the state on how the money is used."

State Sen. Russell Pearce, a Mesa Republican, key budget writer and author of the employer-sanctions law, did not return repeated calls.

Paul Senseman, a spokesman for Gov. Jan Brewer, declined to comment on how Maricopa County was spending its money.

"I can't give you a judgment call on a process we don't manage," Senseman said.

Brian Sands, a sheriff's division chief who oversees employer-sanctions investigations, said the leased cars are not a perk because officers who investigate employer-sanctions cases can be called in to duty at any hour of the night.

"We would be crippled as big as this county is to have them come in and get a car that's parked at an office and then go," Sands said.

When asked if any of the seven officers dedicated to employer-sanctions investigation were called off-duty to respond to a case, Sands said he did not know.


No employers charged

Since the law took effect, there have been 26 employer-sanctions investigations in Maricopa County, ranging from small businesses to a raid at a popular water park for allegedly hiring illegal immigrants.

No business has been charged, but Thomas said it's too early to cast judgment. He said he needs additional powers, such as the ability to gather business records with a subpoena. Pearce has indicated he would support that next year.

"It will take time to work these cases. They are like white-collar or fraud cases, and these type of cases take a great amount of time," Thomas said. "We are still working on cases that will lead to civil enforcement action."

The Sheriff's Office said the investigations have resulted in 327 arrests, with 212 arrested for felony identification theft and forgery. An additional 98 were adults arrested for being in Arizona illegally, and seven were minors in the U.S. illegally. Those 105 people were turned over to U.S. Immigration and Customs Enforcement to be deported. Nine others were arrested for having an outstanding warrant, and one person was arrested on a state charge the Sheriff's Office did not identify.

"I consider it a success if you are investigating someone on a civil violation and you discover other crimes in the meantime," Sands said.

Sands said the arrests have resulted in a 98 percent conviction rate.


Uncertain future

Maricopa County officials, who say they have had great success enforcing the employer-sanctions law, say they are concerned about future funding. Most other county attorneys, with a surplus of funds, say they will be fine if they don't receive additional money.

Thomas said if the state money does not come in there would be a "significant impact" to his office. He declined to specify what would be cut. This fiscal year, Thomas said his office absorbed a 15 percent cut and eliminated 10 percent of its staff, or 105 positions, mostly through attrition.

Thomas said other counties may be sitting on unspent funds because they have not been as aggressive in upholding the employer-sanctions law.

"The reality is Maricopa County has led the way in investigating and prosecuting illegal-immigration crimes. It's a record the sheriff and I are proud of," Thomas said. "We have taken an awful lot of heat for doing so, and other county law-enforcement leaders aren't as willing to take on the challenge."

At the Sheriff's Office, a division chief in charge of the budget said if the state funding ended, other cuts would be made to keep the seven law-enforcement officers employed.

"Oh, that will hurt," said Loretta Barkell, who manages a $271 million budget that was cut 6.5 percent this year. "And we will return all of those vehicles and cut expenses right away because the general fund can't carry it. . . . They (vehicles) will all go back."






Reach the reporter at craig .harris@arizonarepublic .com


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