SUMMARY:  About eight years ago, Herndon began to experience a growing number of day laborers waiting to find work each day at a local 7-Eleven. Apparently about 70% of these workers are in this country illegally. In an attempt to deal with the problems experienced at this site, the Town of Herndon decided to set up a designated day laborer hiring site. However, what had initially been planned as a site on private property funded by private funds evolved into a proposal for a site on public property using public funds that would serve legal and illegal immigrants alike. If this project is allowed to proceed, Herndon will become a magnet for undocumented workers. As their numbers grow, there will be a greatly increased demand for educational, social, and public safety services for which the taxpayers must pay. The small town of Herndon was left to go it alone as the proxy for a very difficult national problem. How do we reconcile the need for workers with the preservation of our laws, our communities, and our way of life?

Beginning about eight years ago, Herndon began to experience a growing number of day laborers waiting each day at the 7-Eleven at Alabama Drive and Elden Street seeking work. At 7:30 AM in recent weeks, their number is more than 130.

The day workers who do not find work spend the remainder of each day at or near the 7-Eleven socializing and contributing to what the residents of the surrounding neighborhoods perceive as an eyesore.

Towns in the Commonwealth, including Herndon, have very few tools to help them eliminate this behavior or disperse the laborers. The Southland Corporation (7-Eleven) chose to "manage" the situation and, using a private security officer, kept the laborers away from its front doors and ineffectively required the laborers to disburse at 11:00 AM each day. The Southland Corporation refused to ask the Herndon Police to charge the laborers with trespassing and, since the site was private property, there was nothing the police or the Town could do to overrule the decision of the property owner.

According to a Fairfax County study, more than 70% of the day laborers have problems with their documentation. "Problems with documentation" is a euphemism for "in this country illegally."

Herndon met with the U.S. Bureau of Immigration and Customs Enforcement (BICE), the old Immigration and Naturalization Service (INS). At that meeting Herndon requested the BICE check the immigration status of the workers; the BICE refused. Herndon requested the BICE train the Herndon police to enforce federal immigration law; the BICE refused. As a side note, the Virginia State Police discussed a mutual aid agreement with the BICE to allow statewide enforcement of federal immigration laws; the BICE refused.

Herndon had very few Charter-supported tools to manage or eliminate the day laborer site. The first thought was to establish and enforce an anti-loitering law, but the Town Council was cautioned by the Town Attorney that such laws were unenforceable unless accompanied by another misdemeanor violation such as drunk in public, destruction of private property, urination in public, etc. Herndon's Police Chief advised that the once a misdemeanor arrest was made, the loitering charge would not add to the severity of the punishment.

The Herndon Town Council opted for a strategy that would re-cast the day laborer hiring site as a land-use issue and as a police safety issue; authority exists in the Town's Charter to create such ordinances. The Town of Herndon passed two such ordinances.

The first ordinance says that once a formal or informal hiring site is designated by the Town Council, there can be no other ad hoc hiring sites. If other sites begin operation on private property, the property owner can be cited for a land-use violation and, if the violation continues, the Town will pursue appropriate court action.

The second ordinance makes it unlawful for any person, while occupying as a pedestrian any portion of the public right-of-way, to solicit employment, or be solicited for employment from a person in a vehicle. Any person found in violation of this law shall be guilty of a class 2 misdemeanor.

In conjunction with these two new ordinances, the Town expected that operation of a designated day laborer hiring site would virtually eliminate the day worker problem and its associated anti-social behavior.

Reston Interfaith established the Project Hope & Harmony group, working with the day laborers and other stake holders to get support for the "one-site" approach to eliminate the Alabama Drive eyesore. This faith-based group has a long history of providing community-sponsored social programs and appeared to have crafted a reasonable implementation strategy.

The two remaining challenges were where to locate the hiring site and how to fund its operation.

Reston Interfaith/Project Hope & Harmony looked for an appropriate commercial property and found no convenient store fronts with cooperative management companies willing to allow a hiring site on their property. They also checked with their local member-churches and found no congregation willing to allow a hiring site on their property.

Reston Interfaith/Project Hope & Harmony then approached the Town, and the old police station was identified as a site having good access for day workers and for potential employers. The use of this property was appropriate because its land-use requirements had been modified more than two years earlier. One factor not fully appreciated in this analysis was the threat perceived by the adjacent single-family homeowners who saw their property as the travel-way from the existing site to the proposed site. The failure to take this concern into account occurred because of the minimal citizen comments when the land-use ordinance was modified two years before.

The second challenge was how to fund the development and operation of the hiring site. One suggestion was that funding come from a combination of donations and user fees paid by the day laborer employers, i.e. without expenditure of public funds. Unfortunately, the conditional use application filed by Reston Interfaith/Project Hope & Harmony indicated that public money in the form of a consulting contract with Fairfax County would be used to establish and operate the site.

To further exacerbate citizen concern, Reston Interfaith/Project Hope & Harmony refused to exclude undocumented workers/illegal immigrants from receiving employment services at the proposed hiring site.

As a result, what had initially been planned as a day laborer hiring site on private property funded by private funds for the purpose of eliminating an eyesore and associated anti-social behavior evolved into a proposal to establish a site on public property using public funds. Furthermore, it would be located in location surrounded on three sides by residential neighborhoods, and day workers would have to travel though these neighborhoods to get to the hiring site. Finally, the site would provide employment services to all who came, including illegal immigrants.

I attempted to have the Town Council defer the decision on the application for 90 days to provide time to secure an alternative site and non-public funding. This attempt failed.

If Reston Interfaith/Project Hope & Harmony's plan survives court challenges and is allowed to proceed, Herndon will become a magnet for undocumented workers. As their numbers grow, there will be a greatly increased demand for educational, social, and public safety services, a burden that will have to be shouldered by all the citizens of Herndon, of Fairfax County, and the Commonwealth of Virginia.

The Town was ill-prepared and ill-equipped to deal with citizens outraged about so may different issues. Where was the Fairfax County staff that had promulgated the day laborer site initiative? Where were our Fairfax County representatives? And where were our Senators and Members of Congress who make the national policy that creates the conditions for this debate? All were conspicuous by their absence. The small town of Herndon was left to go it alone as the proxy for a very difficult national problem. How do we reconcile the need for workers with the preservation of our laws, our communities, and our way of life? It seems that what happened in Herndon has brought us no closer to a solution.

Be assured that in my role as a member of the Herndon Town Council I will not support any application that uses County public funds, Herndon public property, or Herndon staff time to support or encourage illegal immigration or undocumented day workers. To do so would be a violation of my oath of office to "support the Constitution of the United States and the Commonwealth of Virginia."

Copyright Forward Fairfax and Dennis Husch, 2005