PHOENIX — Gov. Doug Ducey contends the Tucson city council violated state law and one of his executive orders when it directed employees be vaccinated or lose their jobs.
In a letter Wednesday, Anni Foster, the governor’s legal counsel, does not dispute that a law barring cities from imposing vaccine mandates approved by legislators last year did not take effect. That's because Maricopa County Superior Court Judge Katherine Cooper ruled that the legislation containing the language had been illegally adopted.
That ruling is being reviewed next month by the Arizona Supreme Court. In the meantime, the provision remains unenforceable.
But Foster told City Attorney Mike Rankin that Cooper did not void other sections of the same bill, meaning they took effect as scheduled on Sept. 29.
More to the point, she said what the judge left intact — and is now state law — is a requirement that an employer “shall provide a reasonable accommodation” when a worker seeks an exemption based on a claim of a “sincerely held religious belief.”
Only thing is, Foster said what the council approved on Tuesday says only that an employee may “request” a religious accommodation and that there will be an “interactive process” to “determine precise limitations.” And that, she said, is not what state law provides.
Issues of religious accommodations aside, Foster told Rankin that the city council, before voting on the mandate, was not informed that there is still a valid executive order which says that “no person shall be required by this state, or any city, town or county, to obtain a COVID-19 vaccine.” The only exception, she said, is that a licensed health care institution can impose such a mandate on its employees.
“This provision would apply to all employees, not just those that requested an accommodation,” Foster wrote, saying Ducey's order precludes what the council enacted. And she said that a violation of an executive order issued during a declared emergency “carries a criminal penalty.”
The letter drew derision from Mayor Regina Romero.
“Gov. Ducey is more interested in playing politics with the vaccine than taking any action whatsoever to protect public health,” she said in a prepared statement. “This is just another politically motivated attempt to micromanage Tucson and deflect from his utter failure to manage the COVID-19 pandemic.”
As to the legal issues, Rankin told Capitol Media Services he will send a written response to Foster as soon as he is able.
“That response will explain that the city’s requirements comply with all applicable laws,” he said. Rankin said he will go into detail on the city's policy for reviewing a claim for a religious accommodation versus what Foster said is the statutory requirement to grant it, no questions asked.
Rankin said he also does not believe that the governor has the authority he claims.
“The governor lacks the power to use an executive order to bar a local jurisdiction from exercising its own legal authority,” the city attorney said, even he "tries to hide that provision within an “enhanced surveillance advisory.”
The decision by Ducey to lash out at Tucson is not surprising.
Ducey has had an often-acrimonious and sometimes hostile relationship with Mayor Regina Romero. That has only been exacerbated during the COVID-19 outbreak with the mayor challenging some of the governor's actions — and inactions.
In fact, it was a public threat by Romero and Kate Gallego, her Phoenix counterpart, to pursue their own mask mandates last year and challenge the governor’s prohibition of that which eventually led to Ducey rescinding his directive blocking such local actions.
The new city policy, approved on a 4-3 vote, says workers who are not vaccinated by Dec. 1 will be served a notice of intent to terminate. A final decision would be made by a supervisor by Dec. 17.
What Tucson is proposing is hardly new.
In August the council adopted a vaccine mandate for the city’s more than 4,000 workers, with the penalty of a five-day unpaid suspension.
Enforcement was stayed in September following an opinion by Attorney General Mark Brnovich that the move would violate the new state law.
In the interim, however, Judge Cooper voided that language. Then, the city once again started down the path of figuring out how to begin enforcing the vaccine requirement.
While Ducey is going after Tucson, he is not pursuing Pima County which also on Tuesday adopted its own vaccine requirements.
Unlike Tucson, the county is making that a mandate only for those who work with vulnerable populations, including county health-care workers, those who work with children or the elderly, and employees of the Pima County jail and Juvenile Detention Center. Those who are not fully vaccinated by Jan. 1 are subject to disciplinary action, up to being terminated.
But Foster acknowledged even that also appears to run afoul of the governor's executive order which permits exemptions only for employees of licensed health-care institutions.
County Manager Chuck Huckelberry said the list of who has to be vaccinated is justified.
For example, he said if there is an outbreak of COVID in a jail unit, the only place that could have come from is an employee who brought it in. And Huckelberry said employees who inspect nursing homes also should be vaccinated to ensure they are not causing infections.
Huckelberry also said the county’s policy for a religious exemption mirrors the one adopted by Tucson — the one that Foster contends violates the law. He said the key there is that the belief be ‘sincerely held.”
“So you just can't make it up,” Huckelberry said.
“We’ve seen emails going around from various groups or employees or union members that say, ‘Here's what you say,’” he explained. “Well, that won't work.”
Foster told Capitol Media Services that she has not reviewed the Pima County action and may have concerns she will address with them.
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