Three companies and one businessman have taken E-Verify matters into their own hands and successfully secured an injunction against the city of Springfield’s enforcement of the voter-approved hiring ordinance.
John Gentry, CEO of manufacturer Positronic Industries, which manufactures electronic connectors and cable assemblies, is among those asking the courts to take a closer look at the ordinance that requires Springfield businesses to use the free federal employment-verification software. Ironically, Gentry voted in favor of the hotly debated E-Verify ordinance in February.
“At Positronic, we’ve been using E-Verify for years. Some of our clients require it, and it is not an onerous process,” said Gentry, one of 16,000 citizens, who supported the ordinance at the ballot box.
Roughly 51 percent of voters approved the initiative petition-led measure that would penalize businesses that won’t agree to use the software or that may not properly respond to allegations that the software isn’t being used.
However, once the ordinance passed, Gentry said he became aware that businesses could be penalized and potentially shut down without having their day in court.
“Instead of waiting until this became a big deal, I thought, ‘Let’s litigate now, before the stakes are high,’” Gentry said. “Right now, it is not affecting lives; it’s not affecting businesses. Let’s clean it up and figure out what is good about it and what’s bad about it. Let’s get an ordinance that is clean and doing what everybody wants it to do.”
Positronic Industries, Oke-Thomas & Associates Inc., Stenger Management LLC and State Farm insurance agent Joe Robles are plaintiffs in the case against the city, which is charged with enforcing the ordinance and defending it in court.
A group known as Ozarks Minutemen led the initiative petition drive that brought the E-Verify ordinance before Springfield City Council in the fall. Ozarks Minutemen spokesman Jerry Wilson said the law is designed to cut down hiring of illegal workers by city businesses, and though there is support for the group’s aim, he is concerned that the city won’t properly defend the ordinance.
He said the majority of council members were ideologically opposed to the measure, which is why members didn’t vote to approve it last fall, instead choosing to place it on the ballot. Once an ordinance has been in force for six months, council can repeal it or amend it with a unanimous vote, and Wilson fears the administrative body will come together and kill the measure before it ever gets a chance to be enforced.
“I’m concerned that the city will use (the lawsuit) as a convenient excuse … to repeal it or gut it completely,” Wilson said.
Gentry said he was familiar with a couple of the plaintiffs before the lawsuit, and through conversations with them and the attorneys representing the group – Joseph “Chip” Sheppard and Howard Wright of Carnahan, Evans, Cantwell & Brown PC – Gentry decided to put his hat in the ring.
According to the suit, the business owners make three main claims about the ordinance:
- it mistakenly usurps the power of the municipal court to judge violations of city ordinances;
- it violates the due process clause of the U.S. and Missouri constitutions by denying those in violation proper notice and opportunity to be heard before the business is fined or its license is suspended or revoked; and
- it unlawfully imposes fines that violate federal law.
“We don’t believe the Finance director has the authority to take the actions that this ordinance requires – such as dishing out fines, suspending and revoking licenses without any sort of a hearing prior to doing so,” attorney Sheppard said. “Our goal is to stop all the penalties envisioned by the ordinance.”
Wilson said enforcement by the Finance Department falls in line with other similar city ordinances.
“The reason we put it with the Finance Department is because it is charged with enforcing all of the other provisions of business licenses,” he said.
In a statement released May 10, City Attorney Dan Wichmer said he would defend the ordinance within the city’s responsibility under the law, but he stated that he agrees with the plaintiffs that parts of the ordinance are illegal. He said foregoing a temporary restraining order and accepting the preliminary injunction is saving time and money, and allowing city staff to determine if there are any other issues with the ordinance.
As the case moves forward, Kathy Iman is waiting to see if those doing business in Springfield could use her services.
Iman, president of Nixa-based accounting and payroll service firm KJI Enterprises LLC, said she had agreements in place with 12 companies to sign them up with E-Verify before the injunction put those plans on hold. She planned to charge $50 for the initial setup and $25 for every additional employee enrolled.
“I didn’t feel I could charge for a service that might not be needed,” Iman said, noting one business owner she was meeting with quickly put plans when he got a news update on his smart-phone saying the injunction was in place. For now, she’ll just wait and see what happens.
Sheppard said the parties are awaiting the Judge Richard Dorr to set a hearing schedule for actions such as briefings and depositions. He said how quickly the suit moves forward is at the discretion of the judge.
