Arizona Attorney General Mark Brnovich issued a legal opinion on Tuesday stating that the city of Tucson’s COVID-19 vaccine mandate for city employees violates S.B. 1824 (soon to be A.R.S. 36-681) and Gov. Doug Ducey’s Executive Order 2021-18 prohibiting local and state governments from implementing them. State Sen. Kelly Townsend (R-Mesa) submitted a SB 1487 request for the investigation.
“Tucson’s vaccine mandate is illegal, and the city could be held liable for attempting to force employees to take it against their beliefs,” Brnovich said. “COVID-19 vaccinations should be a choice, not a government mandate.” His spokeswoman, Katie Conner, told reporters during a phone call, “Adhering to the rule of law in Arizona is not optional.”
Brnovich notified the city of Tucson that if it does not rescind or amend Ordinance 11869, he will instruct the Arizona state treasurer to withhold its portion of state funds until it comes into compliance. The Arizona Legislature enacted SB 1487 in 2016 out of frustration over Democratic local governments instituting conflicting policies. It allows one legislator to request an investigation by the attorney general, who then will give any offending locality 30 days to fix the policy or lose its share of state funds. Brnovich also warned the city of Tucson that if it takes adverse action against an employee who relies on E.O. 2021-18 and state law to refuse the vaccine, it will open itself up for lawsuits.
Tucson’s ordinance states that if employees refuse the vaccine, they risk suspension without pay for five days and higher insurance premiums. They are also required to wear masks and undergo regular testing.
Brnovich said the city of Tucson made a “manipulative move” by exploiting a loophole in the state law that delayed its implementation until September 29. It passed the ordinance on August 13, fully knowing the ban was coming. In response to the move, Ducey issued his executive order on August 16.
Tucson City Council member Steve Kozachik disagreed with the opinion, stating, “There’s nothing illegal about our local ordinance, it comports with CDC recommendations and is in the best interest of public health.” However, Tucson City Manager Michael Ortega said he has instructed staff to put a pause on the mandate until they have a better grasp of the legal issues.
A Pima County judge rejected a request by the Tucson police union to halt the mandate last month. The city of Tucson joined a lawsuit earlier this month challenging the state law against vaccine mandates and several other new laws, claiming they violate the Arizona Constitution’s “single subject” and budget appropriations requirements.
Brnovich previously issued an opinion stating that private employers may require the COVID-19 vaccine for employees. However, they must offer religious and medical exemptions.
COVID-19 isn’t surging in Arizona like it is in some parts of the country. According to Worldometer, there were 2,378 new cases on September 6, far less than the winter surge high of 17,234 cases on January 3. There were 38 deaths on September 4 (the most recent date recorded), barely over one-tenth of the winter high of 335 deaths on January 12. Experts believe COVID-19 began declining around the country within the past two weeks.
The Association of American Physicians and Surgeons (AAPS) opposes vaccine mandates. The AAPS submitted written testimony to the Pima County Supervisors urging them not to implement a mandate for healthcare workers. The organization urges Americans to oppose vaccine passports. AAPS surveyed doctors and found that almost 60 percent of them said they had not gotten the full COVID-19 vaccine.
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter. Email tips to [email protected]
Photo “Mark Brnovich” by Attorney General Mark Brnovich. Photo “Go Between Bridge Construction Workers” by Brisbane City Counsil. CC BY 2.0.