Oakland Municipal Code Ch. 2.23 Sanctuary City Contracting and Investment Ordinance

This Chapter shall be known as the Sanctuary City Contracting and Investment Ordinance.

(Ord. No. 13540, § 1, 6-4-2019)

"City" means any department, agency, bureau, and/or subordinate division of the City of Oakland as provided by Chapter 2.29 of the Oakland Municipal Code and does not include the Port of Oakland or any subdivision thereof under Article 7 of the Oakland City Charter.

"Contract" means any agreement to provide goods to, or perform services for or on behalf of, the City, or such contracts considered or awarded in connection with a covered or related transaction. Agreements advertised, solicited, or initiated prior to the operative date of this Chapter 2.23, including amendments to existing contracts. Only agreements first advertised, solicited, or initiated on or after the operative date are included in the definition of "contract."

"Contractor" means any person, partnership, corporation, joint venture, company, individual, sole proprietorship, vendor or other non-governmental legal or business entity who seeks to contract, submits a qualification statement, proposal, bid or quote or contracts directly or indirectly with the City for the purpose of providing goods or services to or for the City. The term "contractor" shall include any responsible managing corporate officer who has personal involvement and/or responsibility in obtaining a contract with the City or in supervising and/or performing the work prescribed by the contract.

"Data Broker" (also commonly called information broker, information reseller, data aggregator, and information solution provider) means either of the following:

i. The collection of information, including personal information about consumers, from a wide variety of sources for the purposes of reselling such information to their customers, which include both private-sector businesses and government agencies;

ii. The aggregation of data that was collected for another purpose from that for which it is ultimately used.

"Extreme Vetting" means data-mining, threat modeling, predictive risk analysis, or other similar service.

"Detention Facilities" means any private party that provides transport, identification, processing, security, maintenance, or other operational support to a private or public facility intended or used for immigration detention purposes.

"ICE" means the United States Immigration and Customs Enforcement, and any subdivision thereof.

"CBP" means the United States Customs and Border Protection, and any subdivision thereof.

"HHS/ORR" means the United States Department of Health and Human Services, Office of Refugee Resettlement, and any subdivision thereof.

"Operative Date" means ninety (90) days after the effective date of this Chapter 2.23.

(Ord. No. 13540, § 1, 6-4-2019)

A. General Prohibition. The City shall not enter into a new contract or amend or extend an existing contract with any contractor that provides Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), or the Department of Health and Human Services, Office of Refugee Resettlement (HHS/ORR) with any "data broker," "extreme vetting," or "detention facilities" services, as defined in Section 2.23.020. Such prohibited contracts include, but are not limited to:

i. Professional services, including but not limited to, financial, banking, architectural, engineering, design, information technology or consulting services;

ii. Construction or public works of improvement;

iii. Software, hardware, electronic equipment and other types of information technology or related cyber network including, without limitation, cloud computing, internet, or cloud-based computer technology or services, or digital purchases.

B. Exception and Waiver. The prohibition on contracting with firms that that provide ICE, CBP, or HHS/ORR with data broker, extreme vetting, or detention facilities services, may be waived by the City Council or City Administrator for purchases within their respective contracting authorities by determining that no reasonable alternative exists. Such determination shall be made based on the following factors:

i. There is no other qualified responsive bidders, proposers, or prospective vendors or providers that comply with the requirements of this Section 2.23.030 to perform the applicable contract, or as determined in writing by the City Administrator, the City would otherwise by unable to obtain the essential goods or services on a reasonable basis; or

ii. The City Administrator determines, pursuant to applicable provisions of the Oakland Municipal Code, that the contract is necessary to respond to an emergency which endangers the public health or safety; and further determines that no entity that complies with the requirements of this Section 2.23.030 and can respond to the emergency is immediately available to perform the required services; or

iii. The City Administrator determines that there is a substantial difference in cost to purchase professional or technical services from another provider so that it is impractical, fiscally prudent or cost-prohibitive to contract with the sole or the few contractors or proposers that comply with this Section 2.23.030; or

iv. A contractor has demonstrated that it has ceased to perform "data broker," "extreme vetting," or "detention facilities" services, so long as the scope of those services has ceased before the operative date; or

v. This policy conflicts with law(s) specific to this prohibition.

C. Solicitation and Notice of Contract Prohibition. All public works, construction bids, requests for qualifications, requests for proposals, or any other solicitation issued by the City shall include notice of the prohibition listed above.

D. Determination of Compliant Contractors.

1. Information to be Reviewed. To determine whether a contractor provides ICE, CBP, or HHS/ORR with data broker, extreme vetting or detention facilities services, the City Administrator shall rely on one (1) or more of the following:

a. Information published by reliable sources;

b. Information released by public agencies;

c. A declaration under the penalty of perjury submitted by the Contractor, affirming that it does not provide data broker, extreme vetting or detention facilities services to ICE or CBP;

d. Information submitted to the City Administrator by any member of the public, and thereafter duly verified.

2. Notice of Determination and Appeal. Any contractor determined to be a supplier of data broker, extreme vetting or detention facilities services to ICE or CBP shall be notified by the City Administrator of such determination. Any such contractor shall be entitled to a review of the determination by appeal to the City Administrator. Request for such review shall be made within thirty (30) days of notification, or seven (7) days of the date of a City solicitation or notice of a pending contract or purchase, of interest to the person or entity seeking review. Upon receiving the appeal determination from the City Administrator, the Contractor may appeal the City Administrator's determination to the City Council, within fifteen (15) days of the determination.

E. Contract Stipulation. Prior to the City Council or City Administrator awarding any contract to a contractor for the purpose of supplying a commodity to the City, the City Administrator, or any official agent of the City, shall require the contractor to stipulate, as a material condition of the contract, that it has not been contracted to provide ICE, CBP, or HHS/ORR with data broker, extreme vetting, or immigration detention facilities services and that the City, in its sole discretion shall determine such failure.

(Ord. No. 13540, § 1, 6-4-2019)

The City shall not make any investment in companies identified as providers of data broker, extreme vetting or detention facilities services to ICE, CBP, or HHS/ORR. The City will monitor its investments on a regular basis to ensure compliance.

(Ord. No. 13540, § 1, 6-4-2019)

A. Compliance Review and Waiver Documentation. The City Administrator, or his or her designee, shall review compliance with Sections 2.23.030 and 2.23.040. The City Administrator may initiate and shall receive and investigate all complaints regarding violations of Sections 2.23.030 and 2.23.040. After investigating such complaints, the City Administrator shall issue findings regarding any alleged violation. If the City Administrator finds that a violation occurred, the City Administrator shall, within thirty (30) days of such finding, send a report of such finding to the City Council, the Mayor, and the head of any department involved in the violation or in which the violation occurred. All officers, employees, departments, boards, commissions, and other entities of the City shall cooperate with the City Administrator in any investigation of a violation of Sections 2.23.030 and/or 2.23.040.

The City Administrator shall also maintain a record documenting the basis for, and periodically report to the City Council, every exercise of a waiver implemented pursuant to this subsection, or any determination of non-applicability or exception.

B. The City Administrator shall to the extent permissible by law, remedy any such violations and shall use all legal measures available to rescind, terminate, or void contracts awarded in violation of this Chapter. The City Administrator shall consult with the City Attorney in such efforts.

C. By April 1 of each year, the City Administrator shall certify compliance with this Chapter by preparing a written report. By May 1 of each year, the City Administrator shall submit to the Privacy Advisory Commission a written, public report regarding compliance with Sections 2.23.030 and 2.23.040 over the previous calendar year. At minimum, this report must (1) detail with specificity the steps taken to ensure compliance with Sections 2.23.030 and 2.23.040, (2) disclose any issues with compliance, including any violations or potential violations of this Chapter, and (3) detail actions taken to cure any deficiencies with compliance. After receiving the recommendation of the Privacy Advisory Commission, if any, the City Administrator shall schedule and submit the written report to the City Council for review.

(Ord. No. 13540, § 1, 6-4-2019)

A. Cause of Action. Any willful or intentional violation of this Chapter constitutes an injury, and any person may institute proceedings for injunctive relief, declaratory relief, or writ of mandate in any court of competent jurisdiction to enforce this Chapter.

B. Damages and Civil Penalties. If the City is found liable in a cause of action brought by an individual under section A. above, the City shall be liable for (1) the damages suffered by the plaintiff, if any, as determined by the court, and (2) a civil penalty no greater than one thousand dollars ($1,000.00) per violation, as determined by the court. In determining the amount of the civil penalty, the court shall consider whether the violation was willful or intentional and any other prior violations of this Chapter by the City.

C. Limitations on Actions. Any person bringing an action pursuant to this Chapter must first file a claim with the City pursuant to Government Code 905 et seq. or any successor statute.

D. Criminal Penalties. Any person or entity knowingly or willingly supplying false information in violation of Section 2.23.030 D.1.c shall be guilty of a misdemeanor and up to a one thousand dollars ($1,000.00) fine. No other violation of this Chapter shall constitute a misdemeanor.

E. Indemnification. A contractor shall defend and indemnify and hold harmless the City of Oakland, its officers, and employees, (collectively, "indemnified parties") from and against all third party allegations, claims, actions, suits, demands, damages, liabilities, obligations, losses, settlements, judgments, costs and expenses (including without limitation reasonable attorneys' fees and costs) ("claims") which arise out of or, related to, the Section 2.23.030 D.1.c declaration made by the person or entity.

(Ord. No. 13540, § 1, 6-4-2019)

The City Administrator is authorized to promulgate any rules and regulations or administrative instruction, necessary or appropriate to carry out the purposes and requirements of this Chapter.

(Ord. No. 13540, § 1, 6-4-2019)