Sunday, January 27, 2008

"Anonymous Tips Not Allowed!" AZ Legislators Protect Illegals

From Tim Richardson


Rep. Bill Konopnicki, Arizona House of Representatives
Rep. Jack Brown, Arizona House of Representatives
Sen. Carolyn Allen, Arizona Senate
Sen. Jake Flake, Arizona Senate
Sen. Amanda Aguirre, Arizona Senate

I have been reading a lot about suggested changes to the illegal alien employer sanctions law and have a number of concerns.

It appears that businesses want to maintain their anonymity while denying that same status to anyone who might want to direct the attention of those responsible for enforcing the law to possible violations.

My concerns, which have no particular weight, are about the process for offering these changes, voting on the proposed changes, the motives behind these changes and the necessity of any of these changes.

In reading various articles about the proposed changes it seems rather brazen that the people offering these changes may be potentially involved in the application of this law.

It then also seems to me that this represents a very genuine potential for conflict of interest in offering and voting on the changes would potentially exempt these legislators from coverage of this law.

Owning a number of fast food restaurants, McDonalds or Burger King, places these individuals squarely in the target zone of the law as currently written. These individuals should be precluded from offering amendments and voting on any amendments presented.

By eliminating the anonymity for individuals to bring enforcement focus to a given establishment puts, I believe, all anonymous tip processes in jeopardy. Some enterprising attorney will bring up in a criminal trial that his client would not have been arrested but because of evidence located by way of an anonymous tip and clearly the Arizona Legislature has demonstrated that anonymous reporting should not be allowed.

Just recently it was an anonymous tip that caught the Chandler rapist. Don’t put that in jeopardy through unintended consequences.

If I owned a Burger King across the street from a McDonalds I can already make malicious reports about the McDonalds for things such as rodents in the kitchen, sexual harassment of employees, selling drugs from the drive through window, uncontained garbage in the alley and the managers car license plate seen leaving the scene of a robbery, if I were that type of person.

And it really does not make a difference who provides the information since no action is taken directly from that information. All information has to be verified and checked against official records.

These are not tort cases where the person making the complaint, in court, is the complaint and the business is the respondent.

In every one of these cases the County Attorney, for the State of Arizona, will be the complainant and the business will be the defendant. And I assume that the County Attorney will independently obtain the evidence that they need to go forward and it will not hinge on a tipster.

If the tip goes nowhere, no one other than the person receiving the information will ever know. I do not see how that is a threat to a business.

Changing that provision would then inhibit individuals from coming forward and offering such minimal information as having seen, on more than one occasion, employees at a Mexican Food restaurant, say in the area of 35th Ave and McDowell arriving in vehicles with Mexican licenses plates. What difference does it make who I am, all they have to do is go park in the lot and watch.

No business should be exempt. For individuals who own more than one business the evaluation of which license or licenses are in jeopardy is simple. Under which employer ID is the payroll prepared? Are the individuals hired centrally or at the individual locations? Are there separate EIN’s for the separate locations?

The business for which the EIN was assigned and that is contained on the license/application that has hired illegal aliens is the business that is in jeopardy.

Businesses that hire individuals as independent contractors fall under a whole slew of tax laws, a number of which disallow the contracting of individuals who should appropriately be designated as employees.

The independent contractor, who pays the wages to the individual, becomes the business that is subject to the sanctions provisions of the law. Even if that individual is themselves the contractor but is subject to self-employment provisions of the various tax codes. He illegally hired himself. And all of those transactions should be reported through the required use of the 1099-Misc IRS form.

Concerning the knowingly part. Again somewhat easy. If an employer reports wages for an individual to the appropriate government agencies and receives notices of rejection because of a mis-match of the submitted SSN and employee name; and the employer does nothing to correct the transaction; and/or continues to submit the same SSN and name without regard to the notices, the employer has demonstrated that they know the individual who they described in the transactions does not exist and should not be on the payroll.

Additionally then, lack of action of the part of the Attorney General’s office not withstanding, it would seem that the employer who does not correct the mis-match errors has effectively agreed that they have submitted fictitious/false/fraudulent documents to the agencies concerned.

And that I believe might be considered criminal acts within the various tax codes. Further, with substantiating evidence, could possiblly trigger an investigation for seizure under the provisions of RICO laws.

If the burden of proof is to be changed to the standard for criminal acts then the law should be amended to be a criminal act.

The "isolated, sporadic or accidental acts." defense will not cut it for the speeding cameras, running red lights, running stop signs or dumping trash and should not for this law.


Tim Richardson

1 comment:

James A. Bretney said...

A short while ago there was a discussion (?) between a two factions as to a proposition and a law concerning the hiring of illegals. On one side the group said that we don't need a proposition, we have a law. On the other side the group said the law can be changed. The group that defended the law had a point, only if the legislature could be trusted and dependable. What do the people want?

With a brand new comes brand new changes. Right! In considering the legislators that changed their mind (?) a thought comes to mind. The legislature is a good place for a businessman since that person can influence the outcome of legislation to favor business. How about the others? Democrats calling themselves Republicans? When Allen ran for re-election it was pointed out that she and Helen favored the governor's vetoes much more than anyone else. Helen was defeated for reelection. Seems like the voters in that district saw the light. Allen won reelection with the endorsement of Kyl, McCain and some others (birds of a feather?). Brown and Aguirre are Democrats and no surprise that they would be turncoats. Flake? Unclear. There has been some mixed reports on him, but in this case couldn't be depended on to stand behind his vote. Is that his style?

Remember, people deserve the government that they elect. So far there hasn't been much information to the party members about this from the state party.

Jim

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----- Original Message -----
From: Russell Pearce
To: Russell Pearce
Sent: Tuesday, January 22, 2008 10:14 PM
Subject: Hate to say I told you so - but


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Employer sanctions law challenged by Legislators

HOWARD FISCHER has a good article in the East Valley Tribune on January 18, 2008 on the bills that have been drafted by Arizona legislators for action this year. A recap of the main provisions follows:

Rep. Bill Konopnicki, R-Safford bills exempt a company from losing its license to do business for having an undocumented worker on the payroll if that person was already on the payroll before Jan. 1. But that's not all.

His bills require prosecutors to prove "regular, repeated and intentional " illegal hiring before a license could be suspended or revoked. Companies would not be penalized for "isolated, sporadic or accidental acts."

Konopnicki's bills would also limit the types of licenses a judge could take away, a move that would exempt more than half of Arizona businesses from any type of punishment.

Even in the remaining cases, a company would be subject to license suspension or revocation only if guilt were proved "beyond a reasonable doubt," a standard that never applies for civil cases.

Konopnicki's bills would not allow prosecutors to investigate anonymous complaints.

His bills give a clear exemption from punishment for hiring independent contractors who are here illegally.

This creates a loophole allowing businesses to simply fire their employees and, instead, contract with them.

Rep. Russell Pearce, R-Mesa said Konopnicki has an ulterior motive. Owner of several McDonald's franchises, Konopnicki profits from the low wages caused by illegals in the workforce.
Other lawmakers who voted for last year's legislation and are now working with Konopnicki include Sens. Jake Flake, R-Snowflake, Carolyn Allen and Amanda Aguirre, D-Yuma, and Rep. Jack Brown, D-St. Johns

For the fully story goto:
http://www.dongoldwater.com/personal/immigration/Employer_sanctions_law_challenged.doc
ARIZONA NEEDS YOUR HELP!

It is important that you phone, Fax or E-mail the supporters of these bills and tell them how you feel about their actions and their bills.

(R) Rep. Bill Konopnicki Phone (602) 926 5409 Fax (602) 417 3105 E-mail bkonopnicki@azleg.gov

(D) Rep. Jack Brown Phone (602) 926 4129 Fax (602) 417 3010 E-mail jbrown@azleg.gov

(R) Sen. Carolyn Allen Phone (602) 926 4480 Fax (602) 417 3155 E-mail callen@azleg.gov

(R) Sen. Jake Flake Phone (602) 926 5219 Fax (602) 417 3224 E-mail jflake@azleg.gov

(D) Sen. Amanda Aguirre Phone (602) 926 4139 Fax (602) 417 3024 E-mail aaguirre@azleg.gov

In addition please contact Speaker Weiers and Senate President Tim Bee and ask them not to assign these bills to committee or support these bill in any way.

Speaker Weiers Phone (602) 926 4173 Fax (602) 417 3153 E-mail jweiers@azleg.gov

Senate President Tim Bee Phone (602) 926 5683 Fax (602) 417 3247 E-mail tbee@azleg.gov


The actions of these and other legislators make it clear why in is imperative to put the Legal Arizona Workers (L.A.W.) initiative on the ballot in 2008. For more information on the L.A.W. initiative please goto www.azgrassroots.com.