Herrera Responds to Campos Request on Sanctuary Amendment’s Implementation

Memorandum reiterates legal advice, addresses roles of City Attorney and executive, legislative branches

SAN FRANCISCO (Dec. 16, 2009) — City Attorney Dennis Herrera today issued a memorandum in response to Sup. David Campos’s public request last week that sought clarification on the scope of mayoral authority in implementing a recently-enacted amendment to the City’s Sanctuary Ordinance. The supervisor’s request additionally asked whether the Juvenile Probation Department could comply with the ordinance’s directive by adopting a proposed policy drafted by the Asian Law Caucus, which was also submitted last week. Herrera’s 10-page response details provisions of the San Francisco Charter that delineate executive and legislative branch powers, and notes that the plain language of the ordinance enacted by the Board of Supervisors over a mayoral veto on Nov. 10 requires the Juvenile Probation Department to implement the ordinance “to the extent permitted by state and federal law.” The legal effect of such a rarely-included provision “is to require the Department to make the judgment about the extent to which current state and federal law allow it to change its reporting to implement the Ordinance’s new policy.” The memo goes on to explain that such discretion should be exercised in consideration of independent legal assessments by the City Attorney and also outside criminal defense counsel, which was retained by the City late last year in connection with a federal criminal grand jury convened by U.S. Attorney Joseph P. Russoniello to investigate the department’s past practices with respect to juvenile detainees. Herrera also responded that, notwithstanding “serious legal issues,” the Juvenile Probation Department could implement the ordinance by adopting a draft policy proposed by the Asian Law Caucus, but noted that the department “does not have to make any changes that it reasonably determines would violate state or federal law.” The City Attorney memorandum reiterated cautions about enforcing the policy: “Moreover, as we stated in our earlier cautionary memorandum, and particularly in light of the ongoing explicit threat of criminal prosecution by the federal authorities, even if the Department were to decide to adopt the Draft Policy we have advised and will continue to advise the Department that it may not take any adverse employment action against an employee who provides information to immigration authorities about a juvenile, until federal authorities change their position or the courts clarify federal law. Whether it makes sense for the Department to change its policies and practices in view of this caution, and any advice outside criminal counsel may give to Department officials, is a judgment for the Department to make….We are prepared to assist the Department or the Commission in reviewing the Draft Policy or other policies it may wish to consider under the Ordinance.” The memorandum additionally sought to address any confusion about the role and responsibilities of the City Attorney, explaining that the San Francisco Charter “vests in the City Attorney the authority and the duty to act as the City’s independent legal advisor,” but that “the role is limited to giving legal advice and not directing action.” Herrera reaffirmed his stated intention to be an aggressive legal advocate for the measure’s validity, saying: “Now that the Ordinance has become effective, we are prepared to discharge our Charter and ethical responsibility to vigorously defend the Ordinance.” The memo also restated previous public explanations that the City Attorney’s “approval as to form” of proposed measures may be made “even in the face of risks of legal invalidity — as long as legally tenable arguments consistent with the ethical duties of a lawyer support the legislation.”