Tucson tells state that city requiring employees to get vaccinated is legal

PHOENIX — Tucson is breaking no laws in requiring its employees to get vaccinated against COVID-19, its city attorney said Tuesday.

In a letter to the Attorney General’s Office, Mike Rankin said an executive order issued by Gov. Doug Ducey claiming that existing state laws prohibit the mandating of vaccines governs only what state and county health officials can do. So any contention that it applies to Tucson, he said, is just false, and the governor’s order “is entirely void and meaningless.”

Rankin does not dispute that the Legislature, in its waning days, did approve SB 1824, a measure that prohibits state and local governments from requiring anyone to get inoculated.

But he pointed out that law does not take effect until the 91st day after state lawmakers wrapped up their 2021 session, which is Sept. 29. That fact alone, Rankin said, should be enough to convince the attorney general to dismiss the complaint by Sen. Kelly Townsend, R-Mesa, accusing Tucson of ignoring the yet-to-be-enacted statute.

And even assuming that Sept. 29 effective date, Rankin said he’s still not convinced Tucson would be breaking any laws. He pointed out that there are two lawsuits challenging the validity of the law based on constitutional arguments about what can — and cannot — be in the legislation.

“I do not believe that there is any legitimate legal argument that SB 1824 is constitutionally sound,” he wrote. “It is not, and I am confident that SB 1824 and enactment of (the ban on vaccine requirements) will be invalidated by the Arizona courts.”

The ball is now in the court of Attorney General Mark Brnovich. He has until Sept. 16 to decide if the city is violating any state law.

If he agrees with Townsend, that allows him to order the state treasurer to withhold most of the city’s state revenue sharing dollars, a figure that Rankin estimated to be about $120 million a year.

Central to the legal fight is an ordinance adopted by Tucson on Aug. 13 requiring all city employees to get at least their first dose of an approved COVID-19 vaccine by Aug. 24. It does provide exceptions for medical reasons, accommodations for disabilities or a “sincerely held religious belief.”

Under the ordinance, workers who did not comply face a five-day suspension without pay. For those who continue to refuse, the city is looking at other financial penalties like requiring those employees to pay more for their health insurance.

Days later Ducey issued an executive order, claiming that any city that enacts a vaccine mandate is violating existing state health laws. The governor also said those who are in violation are guilty of a Class 3 misdemeanor, subjecting government officials to up to 30 days in jail.

When Tucson did not rescind its ordinance, Townsend filed her complaint with Brnovich, saying he needs to investigate.

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Rankin said those sections of existing law cited by Ducey in his executive order simply do not apply to cities — and, more to the point, to what Tucson has enacted.

About the closest the law comes, he said, is a prohibition against anyone mandating that an individual submit to a vaccine that is being administered under an “emergency use authorization” by the Food and Drug Administration. But that isn’t the case here, Rankin said, what with the FDA having given full approval to the Pfizer vaccine.

And, he said, the city, as required, is providing exemptions and accommodations for medical conditions and sincerely held religious beliefs.

That, however, still leaves the question of what happens on Sept. 29 when there is a clear, legislatively approved prohibition on vaccine mandates.

To that end, Rankin is urging Brnovich to side with those who already have sued to have that law declared void.

The lawsuit filed by education groups and others argues that the Arizona Constitution limits all legislation to a single subject. That same provision also says that any subjects addressed in the measure must be reflected in the title.

In this case, the anti-vaccination provision is just one section in a 33-page measure, dubbed “health; budget; reconciliation.” The bill also includes language related to developmental disabilities service providers, the medical marijuana fund, medical loss ratios for dental insurers and the newborn screening program.

Attorney Roopali Desai wants a judge to declare that the sections not mentioned in the title — in this case, specifically about vaccines and immunization — are void as illegally enacted. A hearing is set for Sept. 13.

Rankin, however, wants Brnovich to separately conclude those provisions unenforceable.

“I do think that it would be wholly appropriate for your office, in the course of responding to the (Townsend) complaint, to recognize and determine that the Arizona Legislature and Governor Ducey violated ... the Arizona Constitution by adopting and executing SB 1824,” Rankin wrote. “The question of that bill’s constitutionality is inextricably connected to the issues raised in the complaint.”

It is doubtful, however, whether Brnovich will take up Rankin on his proposal and come out against both lawmakers and the governor. That’s because it is his office that is supposed to be defending the state in that lawsuit filed by education groups and others.