The last several weeks have caused concern and confusion regarding the impacts of recently published federal guidelines on Washington communities. This article provides a current snapshot of where things stand, but the status is evolving in response to legal challenges, agency review and clarifications, and Congressional funding decisions.

This article is not legal advice. Cities and towns should work with their legal counsel to address concerns.

Recent communications from federal agencies

AWC is aware of several federal agencies and programs that have issued agency-wide directives or program-specific directives. These include:

FEMA Building Resilient Infrastructure and Communities (BRIC) Funding: On April 16, FEMA issued an advisory that the agency would officially end the Building Resilient Infrastructure and Communities (BRIC) Program. In a previous communication, the agency stated that the BRIC Program was not consistent with executive orders issued by the current administration. In Washington, nine cities with nearly $100 million in federal funding were impacted by the announcement.

Department of Justice (DOJ): On April 22, DOJ sent award termination notices to awardees of Office of Justice grant funding. In total, the DOJ terminated $811 million in federal funding. It is unclear how many Washington communities are impacted; however, the cuts hit a wide variety of programs, including those focused on community courts, violence prevention, mental health, substance use, and hate crimes.

Department of Transportation (DOT): On April 24, DOT sent a notice to all recipients of DOT funding. The letter reiterated the expectation that grant recipients comply with the administration’s DEI and immigration priorities for DOT funding.

Department of Homeland Security (DHS): On April 18, DHS published updated terms and conditions for grants, cooperative agreements, and other awards issued by the agency. Similar to those of the DOT notice, the terms and conditions require that recipients comply with the administration’s DEI and immigration priorities and future executive orders.

The Keep Washington Working Act (KWWA) – Impact of state law

The Washington Legislature passed the KWWA in 2019 with bipartisan support. The Act made numerous changes to state law for the purpose of “ensuring the state of Washington remains a place where the rights and dignity of all residents are maintained and protected in order to keep Washington working.” Among those changes, the KWWA restricts the extent of local law enforcement agencies’ enforcement of federal immigration laws.

One provision of the KWWA limits information local governments can share with federal immigration authorities. At the same time, the KWWA requires that local law enforcement adhere to both state and federal law.

The Attorney General’s Office made the following statement regarding information sharing between local law enforcement and federal immigration authorities:

Under [the KWWA], local [law enforcement agencies] must comply with federal law, including the provisions set forth in 8 U.S.C. § 1373. That statute prohibits state and local governments from placing restrictions on the ability of governmental agencies to share ‘information regarding citizenship or immigration status’ with federal immigration authorities. As many federal courts have held, this federal law applies only to information regarding ‘citizenship or immigration status,’ and does not prevent state and local government from implementing restrictions on sharing other types of information with federal immigration authorities, such as a person’s release date, hearing date, or home address. [The KWWA] defines ‘immigration or citizenship status’ as a person’s established status under federal immigration law. While state and local government agencies, including local [law enforcement agencies], may not prohibit officers from sharing this information, 8 U.S.C. § 1373 also does not require local officials to share citizenship or immigration status with federal immigration authorities. Thus, local [law enforcement agencies] do not violate federal law if they decline to share information beyond immigration and citizenship status to federal immigration authorities absent a judicial warrant or subpoena.

Additional guidance on the KWWA can be found in the Keep Washington Working Guidance.

Does the KWWA impact a community’s ability to apply for and receive federal funding? The answer appears to be “no.” Per the Attorney General’s Office, the KWWA complies with current federal law. However, cities and towns should consult with their legal counsel to determine if the terms and conditions of grant opportunities contain requirements that the KWWA prohibits.

Federal funding and DEI programs

Both the letter from DOT and the terms and conditions published by DHS include provisions related to hiring practices, boycotts, and aiding undocumented individuals.

Cities and towns with existing federal funds or looking to apply for federal funds should review their current hiring practices and DEI programs with legal counsel to determine their applicability to terms and conditions of those federal programs and compliance with current caselaw. Because federal law has not changed, policies that previously complied with recent cases likely comply with these directives.

Recent court ruling

On Thursday, April 24, a federal judge in California barred the current administration from denying or conditioning the use of federal funds to “sanctuary jurisdictions.” The ruling impacts two executive orders directing federal agencies to withhold federal money from sanctuary jurisdictions.

Currently, there is no federal definition for the terms “sanctuary policy” or “sanctuary jurisdiction.” However, these terms are generally used to describe policies or jurisdictions that limit assistance to federal immigration authorities.

Next steps

With uncertainty hanging over federal funding, there are several things local leaders can do to keep up with the rapidly evolving environment:

• Review your projects or programs that are fully or partially funded with federal dollars. Ensure that the contact information for your community is up to date with the awarding federal agency so you can receive timely communication from them.
• Communicate the impacts of potential federal funding cuts with your Congressional delegation. This information is critical as they advocate for your communities.
• Carefully review federal funding opportunities before applying. If you are unsure if your city or town complies with the terms and conditions of the programs, please consult your legal counsel.

Remember: steady, measured, and consistent leadership is essential during times of uncertainty. Good advice we recently heard: “Be the barge” in navigating these issues.

If your community is impacted by cuts to a federal program, please contact AWC.