cities vs. the state on vaccines

Lawmaker rescinds complaint about Tucson vaccine rule

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PHOENIX — Tucson is no longer in danger of being financially penalized for its vaccine mandate program.

Sen. Vince Leach, R-Tucson, has withdrawn his request that Attorney General Mark Brnovich investigate whether part of the city's policy of requiring all employees to be inoculated runs counter to state law. The move most immediately means that Tucson avoids the threat of having Brnovich order the state treasurer to withhold more than $100 million in state revenue sharing dollars.

But Leach told Capitol Media Services the underlying issue is far from dead. He said that other pending federal litigation over vaccine mandates overshadows his specific complaint about the refusal of the city to grant religious exemptions to any worker who seeks one.

Leach isn’t the only one who apparently has given up on forcing Tucson to alter its policies. An aide to Gov. Doug Ducey said there has been no follow up to a complaint sent to the city last month by Anni Foster, the governor’s legal counsel, warning Tucson that what it was doing runs afoul of a new state law that took effect on Sept. 29.

All of that means Tucson can continue its mandate without fear of financial penalty — and it need not alter how it deals with requests for religious exemptions — at least for now.

At the heart of the issue is the decision of the council in August to require it more than 4,000 workers to be vaccinated or face a five-day unpaid suspension.

The city stayed enforcement in September after Brnovich said the move would violate a new state law banning vaccine mandates by government agencies.

Since then, however, Maricopa County Superior Court Judge Katherine Cooper voided that statute, ruling it — and some others — had been illegally enacted. That decision was upheld by the Arizona Supreme Court.

But what was not before Cooper and not overturned was another provision that says all employers “shall provide a reasonable accommodation” when a worker seeks an exemption based on a claim of a “sincerely held religious belief.”

Foster, in her letter to the city, said the problem with the city’s policy is it says that employee may “request” a religious accommodation, and that there will be an “interactive process” to “determine precise limitations.” She contends the statute really gives the city no choice.

Leach then used that letter to demand Brnovich to investigate. He echoed Foster’s contention that once a worker makes an assertion of a sincerely held religious belief, the city cannot question it.

What gives Leach his power is a 2016 law that not just allows lawmakers to demand an inquiry but forcing Brnovich to investigate within 30 days. More to the point, that law says if Brnovich finds a local law or policy is contrary to state law, he can order the state treasurer to withhold certain revenue sharing dollars.

But Tucson was not giving up without a fight.

In a letter to the attorney general’s office, City Attorney Mike Rankin said the section of law that both Foster and Leach are citing simply doesn't apply to the city. In fact, he said, it can’t.

It starts, he said, with the fact that the language about providing an accommodation to workers who claim a religious exemption itself has an exemption if doing so would pose more than a minimal cost “to the operation of the employer's business.”

“The city of Tucson — and any municipal or county government — is not engaged in a ‘business,’” Rankin wrote.

And there’s more.

He pointed out that lawmakers tried to ban cities from imposing any sort of vaccine mandate, at least until that law was struck down.

“How can the legislature have intended the law to require the city to provide a religious accommodation for a requirement that ... the legislature intended to prohibit the city from imposing in the first place?” he asked.

Rankin suggested that if Brnovich pushed the issue, he could wind up back in court. Rankin said that, as the city sees it, the language on religious exemption was as illegally enacted — and is equally as void as — the other provisions that Cooper already declared illegally adopted.

Leach, in explaining his decision to withdraw his demand for an investigation, said it became clear that the legal issues are far too complex to try to get a definitive ruling from Brnovich within the 30-day window in which the law requires him to act.

“It wasn’t going to be a clear picture,” he said.

Tucson Mayor Regina Romero told Capitol Media Services the provision at issue never should have been enacted in the first place.

“I wish that our state legislators and governor would spend as much time on the numerous issues facing our state, including the current rise in COVID-19 cases, as they do trying to micromanage the city of Tucson,” she said.

“They knew this was a futile effort all along without any legal merit,” Romero continued. “Stop wasting our time and taxpayer dollars.”

Romero said that as of last week’s council meeting, 88% of city workers were vaccinated. When adding in those who received exemptions, that brings compliance up to 98%, leaving just 86 employees in violation.

“The city of Tucson’s vaccine policy has proven to be overwhelmingly effective in increasing our vaccination rate and protecting the community we serve,” she said.

Leach said the withdrawal of his complaint doesn’t mean Tucson gets to keep its vaccine mandate. He pointed out there are other cases about vaccine requirements pending in federal court.

Those lawsuits, however, challenge various actions by the Biden administration. That includes a vaccine mandate for federal employees and contractors as well as a new rule by the Occupational Safety and Health Administration mandating either vaccination or regular testing of workers of any company with more than 100 workers.

But even if the challengers win, neither is likely to affect the city’s own decision or force the council to rescind its own mandate.

What’s left? The possibility that lawmakers will try to re-enact the ban on vaccine requirements for government workers when the legislature convenes in January.

In voiding that requirement in September, Cooper never reached the legal question of whether lawmakers have the power to preclude such local orders. Instead, she concluded only that the method they used to approve the ban was unconstitutional because they tacked it on to unrelated legislation and did not properly inform the public of its insertion into the bill.

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