A communication transmitted from Louis A. DePasquale, City Manager, relative to amending the Cambridge Municipal Code to insure a Welcoming Community Ordinance

Nancy E. Glowa Assistant City Solicitors Paul S. Kawai City Solicitor Keplin K. U. Allwaters Sean M. McKendry Arthur J. Goldberg Megan B. Bayer Deputy City Solicitor Brian A. Schwartz Katherine Sarmini Hoffman SamuelA. Aylesworth First Assistant City Solicitor Public Records Access Officer Seah Levy CITY OF CAMBRIDGE Office of the City Solicitor 795 Massachusetts Avenue Cambridge, Massachusetts 02139 February 10, 2020 Louis A. DePasquale City Manager Cambridge City Hall 795 Massachusetts Avenue Cambridge, MA 02139 Re: Response to Council Order No. O-9 of 1/27/20 Re: Amending the Cambridge Municipal Code to Insert a Welcoming Community Ordinance Dear Mr. DePasquale: We have prepared this legal opinion in response to Council Order No. O-9 of 1/27/20, which requests that the City Council amend the Cambridge Municipal Code to insert a new Welcoming Community Ordinance. We have reviewed the proposed Welcoming Community Ordinance with Vice Mayor Mallon and City staff including the Police Department and School Department, and met with Councilor Carlone and Attorney Laura Rótolo, a representative of the ACLU, to discuss recommended changes. Our recommended changes are discussed in detail below, and Attorney Rótolo is in agreement with these changes. As an initial matter, we have made some formatting and stylistic changes in order to make the Welcoming Community Ordinance consistent with the other ordinances that comprise the Municipal Code. Additionally, we have made some changes to clarify language where necessary. Attached please find a draft including the redlined changes and a clean draft for your convenience. The first substantive change is found in Section 2.129.040(c), "Role of Police Department in immigration enforcement." We added language referencing Section 2.129.040(), "Raids and other immigration enforcement actions" to make these two sections consistent with one another. Next, in Section 2.129.040(e), "Federal requests for information," we added the last sentence, which provides that this section does not prohibit an officer of the Police Department from sending information regarding citizenship or immigration status to other agencies. The reason why we added this language is that a federal statute entitled "Communication between Telephone [phone removed] TTY/TTD [phone removed] Facsimile [phone removed]

2 government agencies and the Immigration and Naturalization Service, " 8 U.S.C. § 1373, provides that: Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual. The statute does not require any officials to take any affirmative action relative to sharing information about citizenship or immigration status, but it prevents any federal, state, or local law from prohibiting such sharing. This statute has been challenged in courts and has been held unconstitutional by some courts, but not in any decisions that are binding precedent in Massachusetts or in the First Circuit. Accordingly, we added the reference to 8 U.S.C. § 1373 to be clear that the Welcoming Community Ordinance is not in conflict with 8 U.S.C. § 1373. We note that 8 U.S.C. § 1373 is also referenced in Section 2.129.070. In Section 2.129.040(f), "Encountering persons driving without a license," we clarified that although whenever possible officers of the Police Department shall not take a person who was found to be driving without a valid driver's license into custody and shall issue a summons to Court instead, the officer has discretion as to how to proceed. Further, we clarified that if such a driver is taken into custody, the officer shall endeavor to provide the driver with a reasonable opportunity to arrange for someone else to take his or her vehicle, unless the violation is subject to a requirement that the vehicle be impounded. In Section 2.129.040(i), which originally was entitled "U Visa Certification," we incorporated changes requested by Vice Mayor Mallon in order to be more inclusive of two other federal programs that protect non-citizens from removal in certain circumstances. In Section 2.129.040(k), "Deputizing of local officials," we added that no officer of the Police Department shall perform the functions of an immigration officer except as required by law. Adding "except as required by federal or state law or regulations" adds the distinction that no officer of the Police Department shall voluntarily perform the functions of an immigration officer, but if a law mandates that an officer do so, that may control what officers of the Police Department can and cannot do. This section specifies that "no officer or employee of the Police Department shall perform the functions of an immigration officer, whether pursuant to 8 U.S.C. §1357(g) or any other law, regulate or policy ...." 8 U.S.C. §1357(g) is a federal statute that allows a municipality to enter into an agreement with the United State Attorney General whereby an officer or employee of the municipality performs the functions of an immigration officer. A municipality's participation in such an agreement is voluntary and a municipality is not required to enter into such an agreement. 8 U.S.C.1457(g)(9). Accordingly, Section 2.129.040(k) has the effect of prohibiting the City from entering into an agreement with the U.S. Attorney General pursuant to 8 U.S.C. §1357(g). In Section 2.129.040(I), "School records and enrollment," we added language to clarify that the School Department shall not keep or distribute information about a student's

3 immigration status or place of birth, except as required by federal or state law. There are federal and state laws and regulations that apply to student records, such as the Family Educational Rights and Privacy Act, 20 U.S.C. §1232g, and the Massachusetts Department of Elementary and Secondary Education's Student Records Regulations, 603 CMR 23.00, et seq. Any retention and distribution of student records must be in accordance with those laws and regulations. Additionally, we revised the last sentence of this section to apply the restriction on the use and distribution of information concerning place of birth to all students and not just English Language Learners. The reason for this change is that there are other instances where the School Department is required to ask for place of birth, such as in connection with the Department of Elementary and Secondary Education's required forms used for special education services. In Section 2.129.050 we made changes to provide that when complaints concern employees of the Police Department or School Department, copies of the complaints should also be directed to the appropriate officials in those departments. Lastly, in Section 2.129.060, which requiremen har the repo citic the total nevil ad investigations with a cadet ge. Police Department cooperated with or provided information to federal agencies charged with enforcement of immigration laws. I look forward to answering any questions that you or the City Council may have. Very truly yours, NancE. Glowa City Solicitor Enclosure