MEMORANDUM

To: The Governor From: John B. Miller, Candidate for Attorney General On Behalf of: The Attorney General

The AG’s Duty to Represent You and the Citizens of This State Our Supreme Judicial Court has confirmed that the Attorney General is obliged to represent the public interest of the citizens of this state. Secretary of Administration and Finance v Attorney General, 1975. “[T]he Attorney General is . . . mandated to appear for [all state agencies] in all suits and other civil proceedings in which the commonwealth is a party or interested, or in which the official acts and doings of [all state agencies] are called in question, in all the courts of the commonwealth.” “[The Attorney General] has a common law duty to represent the public interest. . . . . Thus, when an agency head recommends a course of action, the Attorney General must consider the ramifications of that action on the interests of the Commonwealth and the public generally, as well as on the official himself and his agency. To fail to do so would be an abdication of official responsibility.” [emphasis added]

Factual Background On July 21, 2014, your Under-Secretary for Homeland Security presented the following facts to the Selectman of Bourne, Massachusetts. Under Secretary Schwartz stated that, for the most part, he was re-transmitting information received from federal officials.

x 770 unaccompanied minors have already been released by US DHS or HHS from the border to relatives and guardians in Massachusetts.

x 34,000 unaccompanied minors have crossed the southern border between January 1 and June 30. Approximately 20% of these people are under 12 years old, 80% are over 12 years old.

x Federal facilities are overwhelmed at the southern border. x Federal officials have asked all states to offer sites to house unaccompanied minors because

federal sites are overwhelmed at the border. x Based on recent federal experience (statistics).

o 55% of those brought to Massachusetts by US DHS/HHS will be released to relatives or guardians at sites in cities and towns here;

o 40% are expected to be deported directly from temporary Secure Shelters in the Commonwealth to their home countries;

o 5% are expected to be granted asylum in the USA. x Under Secretary Schwartz confirmed that the Governor has offered, over the next four months, to

house up to 1000 unaccompanied children at a Secure Shelter in Massachusetts, each staying about 35 days. (3,428 kids = 1000 capacity x 120 days / 35 days)

x Under Secretary Schwartz confirmed that Joint Base Cape Cod and Westover AFB are under consideration.

x If the federal numbers are correct and the period is not more than 4 months: o 55% (up to 1885 children) will be released to relatives or guardians at sites in cities and

towns here; o 40% (up to 1371 children) will be deported by DHS directly from the Secure Shelter in

the Commonwealth; o and 5% (up to 171 children) will be granted asylum in the USA and released to federal

child care programs here.

The AG’s Duty to Represent the Public Interest of Citizens The role of the Attorney General is not a legislative one – it is to properly lead and manage the legal affairs of the state and its citizens. The duty of the AG is to represent the public interest of the citizens of this state. The offer described by Under Secretary Schwartz may add up to 2600 kids to cities and towns in Massachusetts. That's 104 classrooms of 25 kids. That’s 9 new elementary schools. My advice to the Governor, as Attorney General, would be to carefully think this through, plan for it, evaluate the cost implications as well as the implications upon public health, public welfare, and public safety, write this all up, and attempt by negotiation to secure a federal commitment to fully support it before the fact. In the absence of such a federal agreement, the effect on city and towns, whose primary source of revenue is the property tax, should be carefully discussed and dealt with by the Legislature. The Governor should call the legislature back into session to deal with it. Public safety officials, public health officials, and local elected officials should be heavily involved in the development of a solution that protects the state’s $5+ billion annual investment in public health and welfare.

Negotiation Objectives with Federal Government x Clarify, in detail, what the federal government will (and won’t do) before unaccompanied minor

children are transferred to Massachusetts by the US DHS or US HHS x Assure compliance with Massachusetts public health and safety laws

o Vaccinations, health care, health screenings. o Identification – confirmed by law enforcement officials, with screening for gang

members. x Confirm that federal government will remain responsible to the state, and to cities and towns for

all costs associated with sheltering, caring for, and educating children released in the Commonwealth by US DHS or US HHS.

x Confirm that federal government will remain responsible to the state, and to cities and towns for all costs associated with temporary Secure Shelters established anywhere in the Commonwealth.

o If the federal government does not agree, call the Legislature back into session to deal with the impact of this program on cities and towns, and on health, public safety, social welfare, and law enforcement agencies.

x Secure federal commitments in a binding written agreement. o Provide adequate remedies – in writing – including the right to offset against other

payments owed to the federal government. x Ensure that the next Attorney General will be in a good position to enforce this agreement

o After the current Governor and Attorney General have left office in January 2015.

Outline of Negotiation Draft Attached Exhibit A, attached, is an outline for your use in negotiating with the federal government, before any commitments are made that might affect the public health, welfare, and safety of the Commonwealth.

Exhibit A Outline

Humanitarian Assistance Agreement Parties: US Dept. of Homeland Security (Fed Agencies)

For itself, and on behalf all other federal agencies, including DOD, ICE, and HHS and

The Commonwealth of Massachusetts (MA Govts) For itself and on behalf of all of its agencies; County DA’s; County Sheriffs; the Cities and Towns, and its citizens.

Major Headings of Agreement I. Status of Individuals Transferred or Released by Fed Agencies

Persons temporarily present in the Commonwealth, over which Fed Agencies retain both legal custody and legal responsibility, vis a vis the Commonwealth, MA Govts, and citizens.

II. Locations to be used by Fed Agencies

A. Temporary Secure Shelters a. Specific Description, Duration, Capacity, Dwell Time b. New Construction/Renovation c. Security d. Compliance with Applicable Massachusetts Laws

i. Public Health, Public Safety, Building Code, Environmental Laws & Regs B. Non-secure places throughout the Commonwealth’s cities and towns

a. Address to be identified to MA Govts by Fed Agencies upon release from Secure Shelter

III. Federal Commitments Prior to Arrival in Massachusetts, at Direct Federal Expense Before Arrival A. Health Screening and Medical Treatment (including vaccinations) B. Law Enforcement Screening (including Gang Affiliation) C. Collection and Transmittal of Identifying Information D. If transferring or releasing to a city or town, identity and location of persons to whom released

IV. Federal Commitments to the Commonwealth of Massachusetts, DA’s, Sheriffs

A. Health, Medical, Law Enforcement, & ID Information confirmed to Public Health and Public Safety Officials Prior to Arrival

B. Confirmation that Mass Govts may supplement or re-perform Health, Medical, Law Enforcement, and ID review upon arrival, at federal expense

C. Full (100%) cost reimbursement, including allocable overhead, for costs incurred by MA Govts

V. Federal Commitments to Cities and Towns in the Commonwealth A. Cities and Towns Hosting Temporary Secure Shelters

i. Health, Medical, Law Enforcement, ID Information Provided Prior to Arrival ii. Full (100%) cost reimbursement, including allocable overhead, for costs incurred, including

but not limited to police, fire, EMS, water, sewer, Inspectional Services, Public Health, and Public Safety.

B. Cities and Towns, To Which Individuals Are Released in the Commonwealth i. Health, Medical, Law Enforcement, ID Information Provided Prior to Arrival.

ii. Full (100%) cost reimbursement, including allocable overhead, for costs incurred, including but not limited to education, medical, housing, clothing, food, police, fire, EMS, water, sewer, Inspectional Services, Public Health, and Public Safety.

VI. Payment, Remedies in the Event of Breach, Offsets Available to MA Govts