The Alabama Immigration Law
In the 2011 Regular Session of the Alabama Legislature we passed what many have described as the toughest state immigration law in the country. This will explain the general provisions of the law and answer some of the common questions that have been ask. I am happy to say I played a major role in the passage of this bill, having served on the conference committee which worked out the differences between the House and the Senate versions.
First, let me say as I have said many times before. I have no problem with the Hispanic people. God loves them as much as He loves me. The ones that come here legally I welcome. This law is aimed at the ones who come here illegally. The illegal's create way too many social and economic problems and it is asking way too much of any area to have to deal with the monetary cost and the social burden. It is impossible for an area to assimilate the number of people we have had forced on us and especially coming from an entirely different culture. We are a country of laws and the laws must be observed and upheld if we are to have an orderly society. I not only blame the illegal immigrants but I blame the federal government more for not enforcing and I might add ignoring the laws that are on the books.
E-Verify
Most of the provisions of the law go into effect September 1, 2011. The E-verify provisions go into effect at two different times. The first goes into effect January 1, 2012. This is for companies that do business with the state. The second E-verify provision is for all companies doing business in the state and it goes into effect April 1, 2012. This provision in the law requires that all new hires be e-verified or verified that they meet the legal requirements to work in this country. If a company violates the provisions of the law on a first offense they will have their business license suspended for up to ten days at the business location where the violation occurred. They will also be placed on probation for three years and must sign an affidavit stating they are in compliance. For a second violation the business license is suspended for sixty days at the location where the offense took place. A third violation requires that all business licenses be suspended permanently for all locations of the company within the state. The punishment provisions for companies doing business with the state are slightly different. For details you can read the entire law by going to www.mclo.org and look for HB56 and go to section 7.
The E-verify provision is one of, if not the most important provisions of the law. Without affecting employment you take away one of the most effective ways to deal with this issue. The U.S. Supreme Court has upheld an almost identical provision in an Arizona law.
E-verify is operated by the Federal government through Homeland Security and any company can get set up to use e-verify, free of charge. Through the Alabama Homeland Security Office, there will be a toll free number where employers that employee 25 or fewer employees can call and someone will e-verify their potential employee for them.
Enforcement
A citizen or a person who is in the country legally may bring an action in Circuit Court to challenge an official or head of a state agency that does not enforce this law.
Welfare Benefits
No Public Benefits for illegal's with some exceptions such as WIC. This was left in for fear it would be ruled unconstitutional. Welfare benefits such as Food Stamps, Medicaid, Aid To Families With Dependent Children and others are already prohibited by Federal Law but many times not enforced. State law now prohibits the benefits and the enforcement provision above was put in to make sure that people responsible will not ignore the law.
Higher Education
Federal Law requires that we provide a public education for all children but this applies only to K-12. Even though it was already policy adopted by the State Board of Education this law prohibits admitting any illegal to any of our institutions of higher education and prohibits any money being spent on their education , including scholarships.
Arizona Provision
Federal Law requires that anyone who is in this country and is not a citizen must have their identification papers with them at all times. This provision in Alabama's new law is very similar to the Arizona law that received so much national attention in the summer of 2010. It simply states that if a law enforcement officer stops someone for any reason that they would ordinarily stop someone and they have reason to believe they are not legal, then they can ask for their identification papers. If the person stopped does not have their papers they can be arrested and can be detained for up to thirty days and fined $100. A law enforcement officer cannot stop someone just because of their looks. If they are walking down the street minding their own business and there is no reason to otherwise stop them, they cannot be stopped. If they are driving 90 miles an hour down US 431 and an officer would ordinarily stop them and if the officer has reason to believe they might be illegal, the officer can ask for their identification.
Unlawful for Illegal Alien To Apply For Work
This provision makes it illegal for a person to knowingly apply for work, solicit work or perform work and it makes it illegal to hire or pick up passengers for work. Some have made a big deal out of this saying it will prohibit a person from being a good Samaritan. There are two key words in this provision. Number one is the word knowingly and the second is work. You have to knowingly pick up someone who is illegal and for the purpose of working. In Section 13 which is generally known as the harboring provision it states that a person has to know or recklessly disregards the fact the alien has come to, has entered, or remains in the United States in violation of Federal law. Yes, it says Federal law. If the Federal government would enforce their laws, we would not be having this discussion. For the most part this law mirrors Federal law and allows local and state law enforcement to enforce state law which is for the most part Federal law.
If this section is violated it is a Class A Misdemeanor unless it involves ten or more people which makes it a Class C Felony.
Wages for Business Deduction
No business will be allowed to deduct from their state income tax or any other expense associated with the employment of anyone who is in this country illegally.
No Drivers License
If someone is found to be driving without a driver's license and the arresting officer cannot determine by any other means whether the person has a valid license, the person shall be transported to the nearest magistrate. If it is determined the person is in the country illegally and is a flight risk they will be detained until prosecution or until handed over to federal immigration authorities. This gives local and state authorities the means to hold someone who is in the country illegally.
Discriminatory Practice To Hire Illegal
It shall be a discriminatory practice for an employer to fail to hire a job applicant who is a United States Citizen or is an alien in this country legally while retaining or hiring an employee who they reasonably should have known, is an unauthorized or illegal alien.
Schools
One provision in the bill has drawn some attention. It says every public elementary and secondary school in the state, at the time of enrollment in K-12 shall determine whether the student was born outside the United States or is the child of an illegal alien and qualifies for assignment to an English as a second language class.
Some have said this is going to make school officials immigration police. That is not the case at all. When any child is registered the school officials already ask for a birth certificate and that will be done here. If no birth certificate is given but the parent or guardian of the child is willing to swear under penalty of perjury (which is a felony charge if found guilty) that their child is in the country legally, they can sign an affidavit stating that. If they have no birth certificate and are unwilling to sign the affidavit, they are presumed to be illegal and will be counted as such. The purpose of this is to determine as best we can how many illegal's we are educating and get a reasonable idea as to the cost. This will give us facts we can use to base our case with the federal government and to analyze the effects this is having on the quality of education for all students.
There is also a provision in this section which states flat out, this is not for the purpose of identifying individuals. As a matter of fact it clearly makes it illegal for anyone to release the names of any person registered in school. So the idea of making school officials immigration police is totally ridiculous.
Registering To Vote
The law says that in order for a person to register to vote they must provide satisfactory verification of citizenship such as a birth certificate or a valid Alabama driver's license. Up until now you only have to check a box stating you are a citizen and swear to that and you were allowed to register to vote.
Business and Other License
For many years it has been illegal for someone who is in the country illegally to get an Alabama drivers license. The security of our driver's license is very good. They are very difficult to counterfeit. Anyone who is properly trained can spot a fake drivers license. It has not been against the law to allow an illegal to obtain other types of license, such as a business license, a hunting or fishing license and other types, but it is now under this law. All cities and counties will have to verify the legal status of a person before they can issue a business license. A marriage license was not included because of fear of it being overturned by the courts due to the fact that some American citizens marry illegals. It also makes it against the law for anyone to enter into a business transaction with someone they know is illegal. There are certain things that are excluded such as staying in a motel overnight or purchasing food.
Good Samaritan
Some religious organizations have said this law is mean and unjust to illegals. If you go to Section 7 (e) of this law you will find it is legal to provide health care items and services that are necessary for the treatment of an emergency medical condition. It is not unlawful to provide short term non-cash, in kind emergency disaster relief. For public health purposes for immunizations. For programs, services or assistance such as soup kitchens, crisis counseling and intervention and short term shelter specified by federal law. You may deliver in-kind services at the community level through public or private agencies. Services are allowed for prenatal care, are necessary for the protection of life or safety, for child protective services, domestic violence services and there are others.
Some have said a person driving a church bus taking people to and from services could be charged with harboring illegals. I do not believe any law enforcement officer in this state would make that charge. There was some discussion about this but the problem is how do you exempt people from activities such as this and not exempt them from activities you want to be unlawful. We will look at it and if there is a way to correct this, it will be.
This law was discussed and was mentioned in the press for months and I know I didn't and I don't believe any of the sponsors of the bill heard from any of the major religious denominations that have stated objections to the law, until the law was already passed and signed by the Governor. We heard from many people and many groups but not from them. Our entire country and legal system is based on laws. We have to enforce our laws or we have chaos. Some people seem to think it is OK for people to come into our country illegally, for people to hire them and for the federal government not to enforce our immigration laws. I do not feel that way and I will continue my efforts as long as it is necessary to deal with this problem.
Photo Voter ID
This is a law that was passed this session which I sponsored and I believe is significant. This is a bill of which I have a long history. This bill was part of Governor Fob James package when I was Legislative Director for him and we almost got it passed in 1998 but didn't. In 2,000 a Voter ID bill was passed as a compromise which provided that a voter had to provide some identity at the polls in order to vote but they could use 26 different things as identity. This included such things as a bank statement, a utility bill, a hunting or fishing license, a Medicaid or Medicare card, credit card and others, most of which did not include a photo. Even though this was an improvement over what we had, it still was not good enough.
This new law which has been signed by the Governor and will go into effect in 2014, after it has been approved by the U S Justice Department under the Voting Rights Act. It requires you to use a Photo ID which of course includes a drivers license, a non driver photo ID which will be provided by the Secretary of State free of charge and most any other government issued photo ID.
If you vote absentee and are a sick and shut in , unable to physically go to the polls you will be able to vote the same as you do now, which requires your ballot to be notarized or witnessed by two people. If you go to the polls and forget your ID, if two election officials will sign an affidavit and say they know you, you will be allowed to vote. If two people will not do that you will still be allowed to cast a provisional ballot.
This will get at the heart of voter fraud and I am very pleased with the passage of this new law.
Twenty Week Pain Tolerant Abortion Bill
This is a major piece of legislation which I sponsored and has been signed by the Governor. I got the idea from a law passed in Nebraska last year. It is based on evidence that shows that while a child is inside their mother's womb they suffer pain and there is conclusive evidence the child experiences pain at least at 20 weeks after gestation. There is medical evidence and there is evidence that doctors, who are performing surgery on the child while still in its mother's womb, say that if they do not provide an anesthetic the child grimaces and shows all the signs of pain that a full grown adult would. I believe it is horrible to rip an unborn child out of its mother's womb and suck the brains out of their head when we know they experience pain.
In Alabama now an abortion may be performed up until the age the child reaches viability or can survive on its own outside its mother's womb, which is generally 26 weeks. This law restricts abortion at twenty weeks. According to the Department of Public Health there has been an average of 75 such abortions performed in Alabama each year when the child is between 20 and 26 weeks of age. I also believe with tougher reporting requirements included in this law that the numbers may have been even higher. The law does say an abortion can be performed if the mother's life is endangered or a major bodily function would be endangered.
More Pro Life laws need to be passed in Alabama and there are many good ideas that will restrict abortion more.
The Education Budget
The most money ever appropriated for education in Alabama was $6.8 Billion in fiscal year 2008. The budget for the current fiscal year which ends September 30, 2011 was $5.8 Billion. After three per cent proration it is down to $5.65 Billion. When the Legislature first started looking at the new budget numbers for the fiscal year which will start October 1, 2011 we knew we would have $600 million less due to the loss of federal stimulus money. That means we started $1.8 Billion or 27 per cent short of where the state was in 2008. $1.8 Billion is a lot of money in Alabama.
We cannot wave a magic wand and create money we do not have. In Alabama we have to balance the budget, a requirement of the Alabama Constitution. Some people said we should raise taxes. I believe the worst thing you could do in this economy is to raise taxes on the people you are counting on to help get you out of this mess. More taxes would simply be another weight on an economy that is trying to breathe again. What we need is more employment, more jobs but not more taxes.
How We Balanced The Budget
Some people argued we should close tax loop holes and we did close $40 million in tax loop holes. The AEA said there was $200 million in loop holes and some of the $40 million we closed and closed by executive order, were ones they suggested. The biggest one they said we should close was for accelerated depreciation which they said would bring in $55 million annually. I was opposed to that. When the Congress passes a tax break, under Alabama law it becomes part of our tax code unless the Legislature decides otherwise. When businesses are allowed to depreciate plant and equipment faster than normal, this stimulates the economy. There is no question about this. The thing we need is a more robust economy which creates more income and sales taxes which accounts for over 80 per cent of the revenue for the education fund.
We eliminated the DROP program. Some people were upset by this and I understand the feelings of people who were nearing entering DROP. However, in my view we had no choice. The big benefactors of DROP were the high salary people. Joe Reed received $1.4 million from DROP, Paul Hubbert $1.3 million, the Chancellor of the University of Alabama system $1.2 and the President of the University of South Alabama $1.18 million. You had to go down the list past 1,200 before you got to the first class room teacher. By eliminating DROP the state saved $58 million, $34 million for the Education Fund and we were able to save 500 teaching positions.
We ask Education Employees and State Employees to contribute 2.5 per cent more to their retirement. Why? The state of Alabama (the taxpayers) have to contribute to the retirement system whatever is necessary for the retirement system to meet its cash flow needs. In other words it has to contribute whatever it takes to pay current retirement benefits. Currently the Teacher Retirement System is bringing in enough money from investments to meet only 75 per cent of its cash flow needs. Granted a portion of this is due to the economy. In 2011 the state is contributing 12.51 per cent of salary to retirement or $832 million. This varies from year to year but in 2003 the state contributed only 5.03 per cent or $238.7 million. The employee or educator has contributed five per cent of salary for decades. What we did was reduce the state contribution by 2.5 per cent and increase the employee contribution by 2.5 per cent and we took the $89 million in savings and saved 1,500 teacher jobs. This was not about punishing teachers. It was about saving teacher jobs.
We reduced the number of teacher units by a little over 1,100 by raising the divisor by less than half a teacher unit per class. This was based on the number of people who retire on an annual basis. It was done this way to avoid lay offs. I can't say there won't be some lay offs because some systems will have fewer retire than normal and some will have more and many of the systems that have fewer will be able to make up the difference with local funds.
The budget was based on three per cent growth which I believe is very realistic. When you put all of these things together, along with a few other things such as eliminating all pork spending, we were able to balance the budget and do it without raising taxes. No one knows for certain what the economy will be like in the next fiscal year but if there is no major downturn this budget should be met with no proration.
Rolling Reserve Budget
One other thing we passed is "The Rolling Reserve Budget Act" which I believe will eliminate a major portion of these problems in the future. One of the big complaints of how education is funded in Alabama is that it relies on revenues, the income and sales taxes, which are volatile. When the economy is good the revenues are good but when the economy is not good the revenues fall. With this new law you will average your growth over fifteen years. In the last fifteen years you have had growth of 17 per cent, 12 per cent, 9 per cent and in some years much less and even negative growth but the average has been five per cent. When your growth is 17 per cent you take the extra money over the five per cent average and you put it in a reserve account and you save it until you have an economic downturn. This way you can continue growth at five per cent even when the economy is down. This will stabilize funding for education and provide not only a much more reliable source of funding for educating our children but will also provide a much more secure future for teachers and education employees.
One of the major problems we have had in the past is the Legislature and I must say for the most part at the urging of AEA, has spent every penny the state brings in. As a boss of mine use to say, that is not a good way to run a railroad. At the beginning of the session when I looked at the facts, I thought there would have to be lay offs, substanially increase health insurance, reduce academic and in service days and increase the retirement contribution and maybe even furloughs. The only thing that was necessary was increasing the retirement contribution. The Governor, the leadership of the Legislature, the Budget Committees all did a terrific job and I believe the absolute best job that could have been done under the circumstances. The AEA said we were attacking teachers. What we were actually doing was dealing with a horrible mess. One thing for sure. They attacked us on a daily basis. The last thing elected officials want to do is have to make cuts in any program, much less education. What we did is take responsibility and do what the people elected us to do and that is , do the right thing.
Tenure
What does the new Tenure law do and why is it needed?
The main thing the new Tenure law does is stop educators from continuing to receive full pay and benefits, even after the board has dismissed them. Up until now if an educator is dismissed they automatically appeal the decision even when they know they will lose, because they receive full pay and benefits,even when charged with a serious crime and are in jail. Many of the appeals go on for two years and even longer. The average is eight months. During this time another full time teacher has to be hired because a substitute can only fill in for a maximum of four weeks and the tremendous and often times unnecessary litigation cost. Under this law the pay will stop after 75 days and if on appeal the teacher is restored to their previous position they will receive full back pay and benefits. The AEA said they were fine with this.
The other major change is who hears the appeal. Under the Fair Dismissal Act, an arbiter is chosen from the National Labor Relations Board. Neither side has been entirely happy with this. Arbiters come from other parts of the country, which many times delays the hearing and they do not always understand the culture of Alabama. Under the new law five retired judges will be chosen by the President of the Alabama Bar Association and two will be struck by each side, leaving one to hear the case. The AEA is not unhappy with this provision. It is very similar to the Administrative Law Judge System the State Personnel Board and the State Employees Association have used for years. If either side is unhappy with the Appeal Judges decision it can then be appealed to the Alabama Court of Civil Appeals. This is FULL DUE PROCESS.
The bill changed many times as it went through the legislative process. Members of the Legislature negotiated with AEA almost on a daily basis. After the bill passed the Senate, Dr. Hubbert was quoted in several publications as saying it was a pretty good bill except for the Reduction in Force provisions. He then apparently changed his mind. When I met with AEA representatives they only ask for two changes.
The first thing they ask for was to remove the word deference where in the appeal hearing deference would be given to the decision of the school board. I ask three lawyers independently, so they would not know I had talked to other lawyers, what the word deference meant in legal terms. They all three said that if all things were equal, deference would be given to the school board's decision since they were local, had heard the case and knew the people involved.
The second thing they wanted was to hold a hearing on a Reduction in Force case. This law does not change the Reduction in Force Law which has been in place for years and is a completely separate law from Tenure. If there is a Reduction in Force it can only take place for two reasons. If there is a shortage of money or the number of teachers at a school exceeds the number needed because of a lack of students. There will not be a hearing if a teacher is transferred within the schools feeder system. The feeder system is the primary, elementary, middle and high school within the same area. If the teacher is transferred outside of their feeder system then the decision can be appealed to Circuit Court. Each school system must have a Reduction In Force Policy and that is available to all employees. When a Reduction In Force is to be put in place then a plan must be devised and the AEA (by law) has a seat at the table in devising the plan.
One thing that was added to the Tenure Law which I supported strongly was a provision which says a teacher cannot be dismissed for personal or political reasons. I believe we need Tenure. In the past teachers have been dismissed for personal and political reasons but there have also been teachers who have lost interest or have become complacent for whatever reason and continue to teach. The law should be fair and I believe this law is fair. I also believe it will have very little impact in our area because most teachers are good teachers and if you are a good teacher, you have nothing to worry about. This will affect other areas of the state much more than here. I believe time will show this to be true.
