PHOENIX — Gov. Doug Ducey is moving to block cities and counties from telling their workers they have to be vaccinated against COVID-19.
In a new executive order Monday, the governor declared that any local government that implements a vaccine mandate is breaking the law. And the governor said such violations are a Class 3 misdemeanor, subjecting government officials to up to 30 days in jail.
The move comes three days after the Tucson city council voted to make vaccines mandatory for all municipal employees. That directive requires them to show they have received at least one dose of the vaccine by Aug. 24.
Workers who do not meet the deadline face a five-day suspension without pay. And if they remain non-compliant after that, they can be subject to additional requirements like mandatory testing at least once a week, mask wearing, and restrictions on assignments and travel.
Don’t look to Tucson to back down.
“Gov. Ducey is paving the way for COVID-19 to spread uncontrollably throughout our state and attempting to impede those of us who believe in science-based solutions at the local level,” Mayor Regina Romero said Monday afternoon in a prepared statement.
“After consulting with our city attorney, it is clear that this executive order is legally meaningless,” Mayor Regina Romero declared Monday. “The action that mayor and council took last Friday will remain in full effect.”
She also took a slap at the governor, saying he is paving the way for the virus to spread “and attempting to impede those of us who believe in science-based solutions at the local level.”
And what of the threat of jail? Romero told Capitol Media Services she’s not worried, saying she believes she is immune “as an elected representative of the city of Tucson” acting in her official capacity.
City Attorney Mike Rankin also said the governor’s threat to lock up city officials is hollow. He said that Class 3 misdemeanor applies only to those who disobey either an order of the Department of Health Services or the county health department, neither of which is the case here.
And there’s something else.
Rankin said it would be one thing if Tucson were trying to force all residents to get vaccinated, or even to mandate vaccines for those seeking city licenses.
“He’s missing the fact that we are an employer and that we have certain authority as an employer to establish conditions of employment,” Rankin said. He said that’s true for the city just as it is for any other private employer as long as it provides exemptions for medical or religious reasons.
But Ducey said this is about more than the city obeying his executive order.
He said Arizona law gives primary jurisdiction to the state during public health emergencies. And he said local governments have only the powers that are granted to them by the Arizona Constitution and state statute.
“Unlike the state, cities, towns and counties do not have inherent police power to implement vaccine mandates,” his order states.
“We are sending a reminder to folks about what the law is,” press aide C.J. Karamargin told Capitol Media Services. And he made it clear Monday’s “reminder” in reaction to what is going on in Tucson.
“There were some news stories over the weekend that indicated such reminder was necessary,” Karamargin said. He said adding the executive order on top of what Ducey says already is the law shows “it’s a topic we take very seriously.”
The governor said he also is relying on a provision in SB 1824, a budget reconciliation bill that specifically bars local government from requiring anyone to be vaccinated against COVID.
“The Arizona State Legislature, who are duly elected by the people have spoken on this issue,” he wrote.
Only thing is, on Monday, Maricopa County Superior Court Judge Randall Warner ruled that a ban on mask mandates, including in a different budget reconciliation bill, does not take effect until Sept. 29. He said that’s because no new law — including those budget bills — is effective until 90 days after the end of the session.
Ducey, however, said he believes what’s in SB 1824 is effective now “due to its consistency with current Arizona law.”
Karamargin was unwilling to say what action Ducey would take if Tucson ignores the governor’s latest edict.
“Hopefully, it won’t come to that,” he said. “If they follow the law, there won’t be a ‘then what?’ “
Nothing in Ducey’s order affects the increasing number of private employers in Arizona who are requiring their workers to be vaccinated.
Sen. Kelly Towsend, R-Mesa, has asked for a formal legal opinion from Attorney General Mark Brnovich about whether private companies can require that of their employees. Brnovich has yet to respond.
The governor’s new order against vaccine requirements for local workers does have a carrot of sorts for those who either get the virus or even are exposed.
The governor pointed out that a 2016 ballot measure raising the state minimum wage — an initiative he actually opposed — also contains a provision guaranteeing that people are entitled to paid sick leave when public health officials determine someone is a risk to community public health, whether or not that person actually has a communicable disease. His executive order says any community that doesn’t provide sick time is subject to being punished by the Industrial Commission of Arizona which enforces the wage laws of the state.
The Tucson directive does have an escape clause of sorts, and not just because there are exemptions because of medical conditions and if getting vaccinated would violate an employee’s “sincerely held religious beliefs, observances or practices.”
Right now city officials estimated that at least 1,000 of the city’s 4,500 workers are not vaccinated. City Manager Michael Ortega said the mandate will not go into effect if at least 750 unvaccinated workers submit proof of at least their first vaccination by Aug. 20.
If not, then the requirement kicks in four days later, with the five-day suspensions for violators.
Less clear is how Ducey’s executive order affects other ways that local governments are prompting workers to get vaccinated.
For example, Pima County Administrator Chuck Huckelberry said the county, which carries its own health insurance, currently offers discounts to employees who have healthy lifestyles. He said the supervisors next month will discuss removing those discounts for unvaccinated workers.
Karamargin will not say whether Ducey believes such a policy is legal.
“Let’s talk about it after they decide,” he said.