Lawyer Persists with Rift Vs. City of Novato Over Immigration Verification

Judge ruled in city's favor, saying proposed ordinance from Jerome Ghigliotti was unconstitutional, but suit drags on.

Jerome Ghigliotti’s persistence is unquestioned. The Novato attorney has spent more than two years the city of Novato to change hiring practices of contracted workers to make sure anybody making a single cent of taxpayer money via city coffers is a legal resident of the United States. He remains in a court battle with the city on that issue.

But Novato’s city attorney, Jeffrey Walter, said he is reassured by a from Marin County Superior Court Judge Lynn Duryee that it is unconstitutional to require that all contracted employees with the city — and all employees working for any company that contracts with the city — have their immigration status checked first.

But despite Duryee’s May 17 decision in favor of the city, Ghigliotti has filed a motion for the court to reconsider the ruling. He maintains that there is no federal preemption on the E-Verify online system of immigration status checks and cited case law that supported his claim.

On Tuesday, he said Duryee was biased and acted in a conflict of interest. He said she has a financial interest in the law firm that employs her husband, Neal Moran, and that the firm represents the county of Marin and the city of San Rafael — two municipalities that do not use the E-Verify system.

Duryee has agreed to another hearing between the two parties on July 26.

“I’m very confident she’s going to deny,” Walter said. “Jerome would have a lot of work to do to make (his proposed ordinance) legal.”

Walter said the motion to reconsider the May 17 ruling is misguided because Ghigliotti cited case law that wasn’t pertinent to the issue at hand. The ordinance drawn up by Ghigliotti, called the Novato Legal Employment and Contracting Initiative, deals with monetary penalties for those who do not comply, not licensing penalties.

“The (Supreme) Court has found that a licensing penalty is not preempted by federal law, but a monetary penalty is preempted,” Walter said. “That’s the distinction Judge Duryee drew, and it’s a significant distinction because that’s what federal law says. She issued her order May 17 and it was pretty clear that she agreed with our analysis on every point, essentially.”

He added that Ghigliotti only relied on one case —Los Chicanos v. Napolitano — and held that if a state or local municipality adopts a law that imposes licensing sanctions on an employer who hired undocumented workers, it is not preempted by federal law. The problem: The Los Chicanos case is pending before the U.S. Supreme Court.

As for Ghigliotti’s claim of bias by Duryee, Walter said, “It’s difficult for me to follow his logic, frankly.”

Ghigliotti has been seeking an answer why a successful voter referendum he orchestrated last year to enact the E-Verify system has not been presented to Novato voters or approved by the council. The city voluntarily uses E-Verify for the hiring of city employees but does not require the use of the online system for companies with which it signs contracts.

By law, referendums with the minimum amount of verified voter signatures must be placed on a ballot or enacted as an ordinance. Walter recommended the Novato City Council not act at all, saying Ghigliotti’s ordinance was unconstitutional. The council did just that and found itself and was promptly sued by Ghigliotti.

Craig Belfor June 03, 2011 at 09:44 PM
Weather Jerome is right or wrong in his thinking about the legality of his proposed ordinance, his motion got the required signatures to be placed on the ballot, so obviously the people of Novato wanted to vote on it. By doing a end run around the petition, the city council refused to give the people of Novato a chance to vote on an issue they wanted to see go to the polls. We have a 3 part government here in Novato (and the rest of the country-which we fought for) 1) People vote for a council. The council passes laws. 2) The mayor has a say in lawmaking. 3) The police enforce the laws(without interpreting or judging) When one party assumes the job and authority of another party, we have a dictatorship or a police state. Denying the people the right to vote on a law that they petitioned to vote on is the same as not obeying laws already written. The city council must let the people vote. Jerome might be the only person fighting for your rights. Too bad you don't recognize the bigger issue here.
Edwin Drake June 04, 2011 at 01:47 AM
This isn't even about the court decision. JJGJr might be a "nutcase" - I leave that for others to decide - BUT he met all the legal requirements to place a referendum on the local ballot. The City Council has no choice except to place the proposal on the ballot. If JJGJr were smart he'd stop dueling with the locals and bring this unlawful City council action to the attention of the California Attorney General. Maybe even the ACLU. We are a country of laws. It's NOT the City Council's job to legislate "at their pleasure." That's why we got rid of a King in a revolution.
Nick Kies June 04, 2011 at 03:40 PM
A smart person would read the court ruling and then retaylor the ordinance to work a different way. Rulings and law can be very nuanced and I'm sure you can achieve the same goal by adjusting how you approach it instead of getting into a head butting contest with a goat that's bigger than you!
Craig Belfor June 04, 2011 at 04:01 PM
You two guys are saying that if Jerome presented it differently, he might have a better chance dealing with the "good ol boy's " club. Makes sense, but it's back to dictatorship again. I'm sure if he hosted his bid at Hilltop, he'd be received better, rather than being arrested for popping it at a council meeting, but sugar coating it for the council doesn't add to it's validity. He had the signatures of voters, most of whom don't like bribery and kissing up to their elected officials just to get them to do the job they were elected to do. Elected-- there's Jerome's latest proposal- we can still vote. Let's hurry up and do that before we lose that right too.
Craig Belfor June 04, 2011 at 04:03 PM
OOPS! Sorry. We tried to, but the council did that end run. Maybe we'll have to wait for the general election to do an end run on the council.
Larry L June 04, 2011 at 04:07 PM
"U.S. law requires companies to employ only individuals who may legally work in the United States – either U.S. citizens, or foreign citizens who have the necessary authorization. " This is an exact quote from the Department of Homeland Security web site. Why does the City of Novato not feel they have to abide by the laws of the this country? The Department of Homeland Security is a government agency of the United States of America. Maybe someone needs to explain this to me. I am so glad Novato has a citizen like Jerome Ghigliotti. Let's not forget the good old boys club of novato (city council) is all female. Thanks voters of Novato.
Steven Norwin June 04, 2011 at 04:17 PM
Craig, I think you make a great point. Let's get some new blood in there. Pat Eckland is the only council member who is for the people. She does a GREAT JOB working for Novato!
Steven Norwin June 04, 2011 at 04:23 PM
Because The City of Novato Welcomes illegals. This is a santuary City. The school children don't even speak or understand english. The schools hand our groceries to illegals paid for by our local school taxes. Yep, that's where our property taxes are going. Come one, come all...Novato welcomes you and you don't even have to abide by our laws. Don't forget your gang membeship is welcome here too. That's a sign that should be hanging on the little red Church's steeple!!!.
Bob Ratto June 04, 2011 at 04:33 PM
And here is piece from the NY times from late last week..http://www.nytimes.com/2011/05/28/us/politics/28immigration.html While you may or may not agree with Jerome's methods, it seems pretty obvious that this should have been brought to the voters to decide, as that is what was called for by statute. It is difficult to reconcile having elected representatives that do not do what is called for by the citizenry, instead listening to advice from outside counsel that has arbitrarily decided that the statute is unenforceable.
Craig Belfor June 04, 2011 at 04:41 PM
I worked my way through college moving furniture. In 1973 I was on the crew that moved the Federal Records Center from Spear Street in San Francisco to Sneath Lane in South San Francisco. My crew was paid piecemeal for the work we did, taking down shelving units and reassembling them at the other end. We were paid for each unit taken down and each unit put up. Soon we developed better technique, made special tools, and started cranking out more units, but every time we thought we were going to get more money, the prime contractor lowered our per piece rate, quoting budget problems. This pissed me off, so I looked into it. It's called the Watson Act, and any company who does government work must pay the local prevailing wage plus benefits (or an hourly bonus equal to the benefit cost for temporary employees) to every employee on that job. This is to make sure the bidding is fair, and the company that gets the job didn't get it due to lower employee pay only. It has nothing to do with illegal workers, but it covers them as well. When I contested this a the federal labor relations board level, the company shut the job down(with the help of the teamsters union) and started up again with a new, legal crew.
Craig Belfor June 04, 2011 at 04:54 PM
Years later, my company got the bid to move the remaining Special Forces Unit from Hamilton to Moffett Field, complete with heavy machinery, Humvees, etc. I underbid the next lowest bidder by nearly $60,000. The government(at the insistence of all of the higher bidders) was all over me, and I had to prove that I would pay the local wage plus benefits or adjustment. This is still the law today, and when I do work for the State of California, I can't use underpaid labor. On local jobs for the public, this law does not help me, and that's why some companies can do lower bids. This law does not hurt honest, tax paying workers. It helps them. Most underpaid workers can't complain because they and their bosses know that their immigration status is not favorable. This is simple blackmail. While we can't do much for the general public, we can at least do something for underpaid workers at the government level. None of my employees are in affordable housing, or get government assistance. The cost of survival is born by either the employer or the taxpayer. Jerome's insistence that we follow the law protects the workers, the employers, and the taxpayers. The only people affected negatively are sweatshop employers and soccer moms who don't want to give their nannies a raise.
Deanne H June 04, 2011 at 05:11 PM
I worked next to a commercial furniture installer (at least he was that day) in South SF who was paid $8 an hour (not quite prevailing wage, union or not). He said in broken English that he could get more if he had the right papers...like a green card. This is a real problem in corporate spaces too, not just Novato front lawn maintenance.
Craig Belfor June 04, 2011 at 05:24 PM
Exactly my point. Look at the people who are against this law. What do they have to loose? Wyndover is full of underpaid people, many of whom do as good a job as their higher paid co-workers. The taxpayer picks up the tab for the difference, and the honest worker has to live with bums. We can't cure the problems of a tightwad citizenry, but the council could take a stand, set a principle, a standard, and set the bar for the common worker's standards. Or they could just let it go to vote and see how many people mow their own lawns, clean their own houses, and raise their own kids, as opposed to the people who just farm it out. OPPS! We tied that. The council killed it. They must not want to loose their gardeners.
City of Novato June 06, 2011 at 07:12 PM
The City of Novato uses E-verify for its new employees. All contracts require that contractors follow all applicable Federal and State laws.
Steven Norwin June 06, 2011 at 08:02 PM
Yet you do not listen to the people of Novato asking you to abide by the immigration laws. Your employees should use E-Verify too. Please don't let our city continue to be a santuary for illegals. By disrespecting the tax payer you are making the town very distrustful of every decision you make on our behalf. Please stand up for us not for ABAG!!!!
Deanne H June 06, 2011 at 10:32 PM
With all the fraudulent documentation out there it would be nice to have an extra tool for contractors to know just who they are hiring. Maybe they do, and the honor system isn't working.


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