Tucson vaccine mandate illegal, AG says

In this Jan. 7, 2020, file photo, Arizona Attorney General Mark Brnovich speaks at a news conference in Phoenix. Brnovich says Tucson’s vaccine mandate for city employees is illegal. Brnovich’s decision Tuesday, Sept. 7, 2021, gives Tucson 30 days to repeal the mandate or lose millions of dollars in state funding. (AP Photo/Bob Christie, File)

A Tucson ordinance requiring city employees to get vaccinated or face suspension is illegal, Attorney General Mark Brnovich concluded Tuesday.

In a letter to city officials, Solicitor General Beau Roysden, writing for Brnovich, said the Aug. 13 vote by the council directly conflicts with a statute approved in June by state lawmakers. It specifically prohibits state and local governments from requiring any person to be vaccinated for Covid.

Roysden acknowledged that, strictly speaking, SB1824 does not take effect until Sept. 29. But the attorney general wants an immediate halt to prevent what he said could be harm to city workers who are forced to roll up their sleeves, even for a law not yet in effect.

“Nothing is more coercive than a government mandate to do something that’s soon going to become illegal,” Brnovich told Capitol Media Services.

That echoes what is in the official findings.

“It is self-evidence that any negative side effects of a vaccine will not be undone merely on the general effective date of legislation,” the report states.

“And it will be cold comfort to city employees that state law unambiguously protects them after they were required to obtain a vaccine that they would not otherwise have obtained in the first place,” Brnovich continued. “Any harm at that point would have already occurred.”

The statements drew derision from Tucson City Attorney Mike Rankin.

“I don’t understand how the attorney general can simultaneously acknowledge that the statute does not yet exist as law yet still say action by the city last month violates the ‘law,’ ” he told Capitol Media Services.

“The attorney general agrees that it is not the law,” Rankin continued. “That should be the end of it.”

Mayor Regina Romero agreed.

“It is deeply unfortunate, but not surprising, that the attorney general is prioritizing his political ambitions over his responsibility to objectively interpret the law,” she said in a prepared statement, with Brnovich running for U.S. Senate. “This report reads more as a campaign speech filled with political commentary rather than a fact-based legal opinion.”

Brnovich spokeswoman Katie Conner brushed aside the fact that the law, strictly speaking, is not yet in effect.

“At the end of the day, it’s really, when you think about it, offensive what Tucson is trying to do when policymakers have clearly spoken on what the policy is in the state of Arizona, especially with something as permanent as a vaccine,” she said.

The dispute is more than academic.

State law says if the attorney general finds that a local law violates state statute, the state treasurer is required to withhold most of the community’s state revenue sharing dollars, a figure that Rankin estimates to be about $120 million a year.

Romero said the mayor and council are reviewing the findings, with one option being to take the dispute to the Arizona Supreme Court. But in the interim, City Manager Michael Ortega said he is pausing implementation of the policy.

The Tucson ordinance, believed to be the first of its kind in the state, required all city employees to get at least their first dose of an approved Covid vaccine by Aug. 24. There are exceptions for medical reasons, accommodations for disabilities, or a “sincerely held religious belief.”

Workers who did not comply faced a five-day suspension without pay. And continued refusal could lead to other penalties like having to pay more for their health insurance.

Conner said this is not acceptable.

“Adherence to the rule of law in Arizona is not optional,” she said. “It’s everyone’s responsibility, including the city of Tucson.”

But all that presumes SB1824 is legal — or will be after Sept. 29.

It is one of the “budget reconciliation” bills enacted by lawmakers in the waning days of the session.

There already is a lawsuit challenging the validity of that law based on constitutional provisions that require all measures to deal with only a single subject, and that any subject must be reflected in the title. But this bill deals not only with a ban on vaccine mandates by state and local governments but also everything from the state’s newborn screening program to a special fund within the Department of Economic Security to provide services for sexual violence victims.

A hearing on the legality of SB1824 is set for Sept. 13. But Josh Kredit, the assistant chief deputy under Brnovich, promised an appeal if Maricopa County Superior Court Judge Katherine Cooper concludes the statute is invalid.

“It’s hard to determine how that will impact us,” Kredit said. But he said that, as far as his office is concerned, the Tucson ordinance, as of now, violates both state law and the governor’s executive order.

Brnovich’s arguments, however, are not limited to the effective date of the law.

The report notes that Gov. Doug Ducey interceded on Aug. 16, issuing his own executive order which the governor claims bans the kind of vaccine mandates Tucson enacted until the law takes effect.

But Rankin said Ducey’s executive order is relying on what the governor believes is his authority under state health law. And he said that even Brnovich’s office has acknowledged that the sections of that statute cited by the governor limit only what the state and counties can do, not what legal options are available for cities.

And then there’s the question of whether Ducey still retains his powers to issue edicts under an emergency he declared more than a year and a half ago.

“That’s a great question,” Kredit said. “I’m not sure.”

Brnovich said he is not anti-vaccine.

“I would encourage people to get the vaccine,” he said. But Brnovich declined to say whether he has been inoculated, said these are “personal medical decisions.”