In what could mean the beginning of the end for the Herndon Official Workers Center, a controversial endeavor that has been at the center of town politics since it debuted more than a year ago, the Town Council officially announced a request for proposals last week for a new operator who would check work authorization status.
The measure was passed with a vote of 6-1 at a Jan. 9 public hearing, with town council member Harlon Reece the sole dissenting voice.
Depending on what is proposed to the town, a new operator may be a private enterprise or a non-profit organization, according to town manager Steve Owen, so long as the operator checks for legal authorization to work in the United States, as per the council's instructions.
"If it's a non-profit [organization], the town will consider instituting a low-rental agreement as we do now with the current operator," Owen said, saying that a new site may temporarily be housed at the current day labor site's location at 1481 Sterling Road. "We just want to hear what people are willing to do … and the council will make the decision from there."
The six members of Herndon's town council who voted in favor of the request for a change ran on a ticket opposed to the establishment of the site. Project Hope & Harmony, the non-profit group currently running the site, does not check for work authorization status of laborers, citing that it is the employers' responsibility to verify.
SIX RESIDENTS, represented by the Washington, D.C.-based conservative advocacy group Judicial Watch filed a lawsuit against the town and the county for the establishment of the site in November, 2005. Fairfax County is under a more than $175,000 contract with Project Hope & Harmony to operate the Herndon site.
In a news release, Tom Fitton, president of Judicial Watch, praised the Town Council for beginning the search, but has yet to drop the lawsuit against it.
While a new operator has yet to be found and the labor site is still running as usual, Fairfax County has yet to begin its search for options if the site is removed from town property, according to Brian Worthy, a public information officer for Fairfax County. The site is part of a broad, county-wide plan to manage the crowds of day laborers who had swelled the parking lots and street corners throughout the county.
The project, he said, is a practical way of dealing with a local problem.
"You have to make day laborers are part of the solution by organizing and regulating their behavior," Worthy said. "Your immigration status has nothing to do with whether you should be allowed to legally gather on public property."
THE LOSS OF a site that would cater towards all workers, regardless of their immigration status, would eliminate a practical solution to the problem of a large number of workers lining the streets of Herndon soliciting work, said Reece.
Anyone who solicits work openly on the streets in Herndon is in violation of a local ordinance passed in conjunction with the creation of the site in 2005, limiting open-air solicitations, making them punishable by up to a $1,000 fine and six months in jail.
It is that ordinance, paired with the elimination of an open site, that could spell a new kind of legal problem for the town, Reece said.
Its legality has already been questioned. The constitutionality of the anti-solicitation ordinance was challenged in Fairfax County court on January 11 by attorneys representing Herndon-area resident Stephen Thomas, according to court records.
Thomas was cited in violation for the ordinance by Herndon Police after he allegedly picked up two workers from Herndon's 7-Eleven parking lot in September of last year to help him with yard work, court documents stated. His lawyers have cited numerous U.S. Supreme Court decisions protecting the freedom of speech in their argument for dismissal.
THESE CHALLENGES could increase if the current site practices are changed, Reece said.
"If we have a new operator that limits the use of the site to only authorized workers and we start arresting these people in the streets, a lot of attention will come on the town," he said. "If we follow through with something like this, I believe it will put us at risk for a lawsuit."
Reece, speaking at the public hearing, mentioned court cases where anti-solicitation ordinances like Herndon's had been ruled unconstitutional as it impedes freedom of speech. Any increase of negative attention to the ordinance associated with a large number of arrests might bring in day labor advocates, he said.
The organization that took part in some of those cases, the Los Angeles-based National Day Labor Organizing Network, is aware of what is happening in Herndon, according to Chris Newman, the group's director of legal programs.
"It is our belief and also the belief of several judges that anti-solicitation ordinances conflict with rights guaranteed under the first amendment," Newman said. "It's worrisome to us that this very vocal minority, in trying to further their agenda on immigration, are pushing the Town Council to possibly violate the civil rights of these workers."
"Obviously immigration is an emotional debate, but the reality is that closing down this site will not result in any change of federal policy."
THREATS OF LEGAL battles over the actions of the council in relation with the day labor site will not seriously affect the town, according to vice mayor Dennis Husch.
"What happens out there in California [courts system], that's the ultimate left out there, so in coming here and trying to use that tactic will most likely not end with the same result," Husch said.
The judicious and thorough nature of Herndon town attorney Richard Kaufman, who drafted the anti-solicitation ordinance, is enough to make council member Dave Kirby confident, he said.
"Richard Kaufman is a very cautious and updated individual when it comes to the law, and if we started crossing the line with ordinances, I'm sure he would let us know," Kirby said
The search for the new site operator is another measure being made by the council to get tough on immigration, and threats of legal action are just another obstacle to this "get tough" approach, Kirby added.
"Part of what we're trying to do with these actions and ordinances is to tell those people who would engage in these illegal activities that they are not welcome in Herndon," he said. "[Threat of legal action] is just a part of the risk of doing what it is we're trying to do in Herndon."