United States law prohibits government agencies and officials from adopting policies blocking employees from providing someone’s immigration status to immigration agents, Lackawanna County’s top lawyer says.
County Solicitor Paul James Walker cites the federal law in a four-page, Feb. 11 memorandum to the county commissioners. Walker wrote the memo in response to questions Gaughan posed about cooperating with ICE.
The federal immigration law could undermine Lackawanna County Commissioner Bill Gaughan’s attempt to pass a law preventing county employees from cooperating with federal agents’ requests for information about immigration status.
What Gaughan wants
Generally, Gaughan wants to limit county cooperation with Immigration and Customs Enforcement agents unless they have a warrant signed by a judge or a court order.
Amid public pressure to pass Gaughan’s proposal, his fellow commissioners Thom Welby and Chris Chermak have only said they’re reviewing what the county can do. They haven’t put Gaughan’s proposal on a meeting agenda.
In a follow-up memo issued Wednesday, Walker warns adopting Gaughan’s proposal carries “significant risks.” They include the federal Department of Justice considering filing criminal charges against “politicians and officials” who enact or enforce laws limiting cooperation with ICE.
The federal law — titled U.S. Code: Title 8 — Aliens and Nationality — does not require cooperation with the federal Immigration and Natural Service, Walker says in the Feb. 11 memo.
“This statute does not mandate affirmative cooperation but prevents policies that restrict communication with ICE about immigration status,” Walker wrote.
That means, Walker says, the county would have to comply with warrants or subpoenas. But the county would have the discretion to cooperate or not cooperate with an informal request, he wrote.
“Pennsylvania counties, therefore, have discretion regarding cooperation with ICE detainers,” Walker wrote. “The extent of cooperation is a discretionary exercise of county authority, provided it does not conflict with federal or state law.”
The United States Constitution’s Tenth Amendment prevents the federal government from forcing state or local governments to enforce federal regulations such as immigration laws, Walker wrote.
Feds could cut off funding
Walker also says county policies could affect the county’s federal funding, though how that could happen depends on federal laws and presidential executive orders.
President Donald Trump’s administration, which has aggressively pursued immigration enforcement, has often halted federal funding to local and state agencies seen as failing to cooperate with his agenda. In some cases, Trump or others in his administration have threatened or carried out criminal investigations.
Walker’s memos also say:
- Counties generally have the right to decide what immigration-related data to ask for on county application forms and keep in databases, as long as the limitations don’t conflict with federal or state laws.
- The county home rule charter allows the county to have a policy of refusing to honor ICE requests to detain someone suspected of an immigration violation. Walker cited a March 2014 federal appeals court ruling that found honoring ICE detainers is voluntary.
- The county doesn’t have the authority to dictate immigration restriction policy to row officers such as the sheriff or district attorney.
Gaughan's proposed law
Walker issued his memos as the commissioners decide on whether to adopt Gaughan’s proposed Protect Our Neighbors Act.
The act would bar county employees or agencies from:
- Asking “a person applying for county aid about his or her citizenship or immigration status” unless required to by a court order or state or federal law.
The act would require the removal of questions about immigration status from application forms or questionnaires within 60 days after the act is adopted. - Conditioning county benefits, services or opportunities based on citizenship or immigration status.
- Stopping, arresting or detaining someone released from custody based on an immigration detainer, an administrative warrant, another immigration enforcement document or information or suspicion the person isn’t in the U.S. legally or is violating immigration law.
- Supporting immigration agents or investigating someone’s citizenship or immigration status to help immigration enforcement.
- Entering into agreements with federal immigration agencies to enforce federal immigration laws.
- Signing contracts to house immigration detainees.
- Turning over someone to immigration agents; allowing immigration agents to use county “facilities, information or equipment” to conduct enforcement operations; or expending time to communicate with immigration agents on enforcement matters unless a court order or judicial warrants requires it.
Advocates have passionately pressed for passage of Gaughan’s proposal during the last three commissioner meetings.
Not one, but two memos
The Feb. 11 memo followed Gaughan’s introduction of the proposal but never came up publicly before.
At the latest commissioners meeting Wednesday, Gaughan brought up Walker’s second memo, a six-page document issued only 90 minutes before the meeting. That memo expands on the Feb. 11 memo.
Gaughan complained that Walker labeled the latest memo as “confidential.” The memo says it is “attorney-client privileged communication.” The Feb. 11 memo does not have the same labels.
Gaughan called for a vote to release the latest memo publicly. His motion for a vote failed when commissioners Welby and Chermak declined to second it.
Gaughan released both memos later Wednesday anyway, defying Walker’s confidentiality warning.
Walker's warning, Gaughan's response
Publicly disclosing the memo, Walker wrote, “could provide a roadmap” to undermining any adopted policies to people or organizations seeking to challenge the policies.
In an interview Thursday, Gaughan defended his release of both memos.
“It concerns legal advice about public legislation that we've been talking about for a month, and I think the public deserves to understand the legal arguments that are being made so that they can evaluate the issue themselves,” Gaughan said. “And that's the reason that I released it.”
He pointed out the Feb. 11 memo did not have a confidentiality stamp.
“What's the difference between this memo (issued Wednesday) and the memo that he issued back on February 11?” he asked.
Reminded his fellow commissioners publicly declined to back his push to release the memo, Gaughan was undeterred.
Eventually, the commissioners will have to discuss the legal arguments publicly so people understand them, he said.
“I've always believed that transparency improves informed debate, whether you agree with (or) disagree with me on any issue,” he said. “So, you know, in my mind, this was a good faith governmental action by me to release it. I don't think I did anything necessarily wrong. If I thought there was anything damaging in here, something that I thought shouldn't be released, I wouldn't.”
Gaughan said he doesn’t find Walker’s advice on his proposal compelling either. He pointed out Allegheny County has passed a similar ordinance and Gov. Josh Shapiro has issued an advisory on social services and healthcare agencies dealing with ICE.
“I think to me, this provides a policy and a boundary between our county employees and ICE,” he said.
Chermak rips Gaughan
In a separate interview Thursday, Chermak declined to discuss either memo.
“The memo was a confidential memo. I mean, we're just in the process of discussing,” Chermak said. “And other than that, because now there could be litigation, I’m not even going to talk about it.”
He said Gaughan had “no authority to release that (memo) on his own.”
“All I can say is — and I'm getting really sick and tired of it — this is nothing but grandstanding. He's looking for attention,” Chermak said. “He doesn't like that he’s not the king in charge anymore.”
He accused Gaughan of trying to divert attention away from past controversial decisions.
“He's trying to divert everyone's attention off of his massive tax increase and the reassessment debacle,” Chermak said. “In so many different departments, between the county, the airport, we have a lot of stuff going on, and this is all just interfering with our important things that we need to do here.”
At Gaughan’s urging and over Chermak’s objections, the county raised property taxes 33% in 2025. Gaughan has also defended the reassessment of real estate countywide as properly executed and fair. New values went into effect Jan. 1. Chermak has criticized the values as too-often flawed and inaccurate and the appeal process as poorly publicized.
Gaughan fired back.
"Blaming me for fixing the county’s structural deficit and dealing with a court-ordered reassessment is like blaming the firefighter who put out the blaze instead of Chris Chermak and others who spent years playing with matches in the corner," Gaughan said in a text. "Commissioner Chermak is not a leader. He is a follower who would be more comfortable smiling for a photo-op than taking an actual position on important issues."
Efforts to reach Welby on Thursday were not immediately successful.
