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Tucson city attorney: Ducey 'painfully absurd' in attempt to block COVID vaccination mandate

Rankin: Using pandemic data-tracking order to block shot requirements 'plainly exceeds his authority'

In a sharply worded and often acerbic retort, Tucson City Attorney Mike Rankin refuted arguments made by Gov. Doug Ducey's office that Tucson cannot mandate COVID-19 shots for city workers — at one point saying a declaration by the governor was "painfully absurd."

In his three-page letter, Rankin wrote that Anni Foster — the governor's general counsel — was "simply wrong" in her reading of state law, and in particular its application to Tucson's policies. In a final footnote, he wrote that a move made by the governor to try to block any vaccination requirements was "painfully absurd."

On Tuesday night, the City Council decided that city government employees who are not vaccinated — and have not receive an accommodation for religious or medical reasons — could be fired if they don't get their coronavirus shots by by Dec. 1.

Following the vote, Ducey's office wrote a letter to Rankin, demanding that the city roll back the new policy. As the letter was sent to Rankin, Ducey tweeted out the letter, writing that it was "unfathomable that after a year as tough as last, the Tucson City Council voted to FIRE unvaccinated city employees."

"The state Legislature has spoken on this issue — they want Arizonans and their sincerely held beliefs to be protected from overreaching mandates," Ducey wrote. In response, Mayor Regina Romero said Ducey is "playing politics" to "deflect from his utter failure" on COVID-19.

The letters are part of an increasingly strident tit-for-tat between the governor, who has fought against vaccination and mask mandates even as Arizona has endured 1.1 million cases and 20,770 deaths from COVID-19, and city of Tucson officials who have pushed for mandatory vaccinations for goverment employees, with some possible accommodations.

Ducey continues to say he's for widespread vaccinations. Even as he lambasted the city for its new mandate, he wrote that vaccines are "the best way of keeping you and your loved ones safe."

"But the law is clear — vaccine mandates are NOT permitted in Arizona," the Republican governor wrote.

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Ducey's letter also included a not-so veiled threat in his letter, writing that "violation of state law" and "violation of an executive order issued under the authority of an emergency declaration carries a criminal penalty."

The city's vaccination requirements follow a wider move among large public and private employers across the county.

On Friday, the state's three universities said they would require vaccinations by Dec. 8 based on a federal mandate, and the Defense Department has also required federal contractors to vaccinate employees—including Tucson heavyweights Raytheon and Honeywell.

And, the morning before city of Tucson decided to push its vaccine mandate, the Pima County Board of Supervisors decided to require employees who work with vulnerable populations to be vaccinated—including staff at the county jail and juvenile detention centers.

Since the city put the ordinance into place, around 627 out of 4,000 city workers have requested some accommodations. The city has approved around 50 percent of all applications, leaving just 289 workers who had their request denied. Another 24 accommodation requests are still under review, according to data from the city.

Rankin told city leaders on Tuesday that Tucson could enforce a vaccine requirement for city government workers despite the state Legislature's attempt to block such mandates.

The state law that would "otherwise prohibit the city from requiring any person to be vaccinated against COVID-19 has been declared void and unenforceable by order of the Maricopa County Superior Court," Rankin wrote. "The appeal from this order is now pending in front of the Arizona Superior Court, with oral arguments scheduled for Nov. 2, 2021."

Foster, Ducey's attorney, wrote that while Rankin was right about the pending litigation, Rankin was wrong about the law, arguing that only two sections of the law were tossed out when the court found that state budget package was an unconstitutional attempt at "log-rolling," and that a third section remains in effect.

That section tells employers that if an employee presents a sincerely held religious belief, practice, or observance that they cannot take the COVID-19 vaccine, employers must provide a reasonable accommodation. That is, "unless the accommodation would pose an undue hardship and more than a minor cost" for the city.

Rankin 'puzzled'

Rankin said he was "puzzled" why he received a letter from the Governor's General Counsel Office, which Rankin said "is not a statutory office and is a position that lacks any duties or responsibilities relating to the actions of municipal corporations in Arizona."

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"As I understand it, the full scope of your role as the governor's personally appointed staff attorney is to provide legal counsel and advice to the governor," Rankin wrote to Foster. While Foster's job was important, "it is not a public office with duties that include the issuance of legal opinions to state agencies or political subdivisions, or the authority to require explanations from municipal attorneys about the legality of actions taken by their local legislative body," he said.

"If I'm mistaken about this, please let me know," Rankin wrote.

Rankin also complained about the timing of a phone call from Foster, who called just before Ducey's office posted an image of the letter on Twitter.

"First, I'd like to thank you for your professional courtesy in leaving me a voice-mail message on Wednesday letting me know that you were about to send me a letter that was shortly thereafter released to the press by the governor's office, and which immediately became the subject of 'tweets' from the governor," Rankin began his letter. "I appreciate the heads up."

Nonetheless, Rankin explained his position as a "matter of professional courtesy," he wrote.

After Ducey published the letter, Mayor Romero responded.

"It is deeply unfortunate not just for Tucsonans, but all Arizonans, that Gov. Ducey is more interested in playing politics with the vaccine than taking any action whatsoever to protect public health," said Romero. "This is just another politically motivated attempt to micromanage Tucson and deflect from his utter failure to manage the COVID-19 pandemic."

Attorney Foster framed the letter as an attempt to "bring information" to the Council's attention about the new policy, and argued that the city's vaccination mandate violates state law, which requires officials to grant vaccination accommodation requests as they come, rather than evaluating an employee's sincerely held belief. And, she cited provisions of Arizona's HB 1824—one of four legislative bills that were challenged by a coalition of education groups, who argued that the bill was created through legislative "logrolling" and that the laws violated the Arizona state Constitution.

On Thursday, Rankin wrote to Foster that he understood the various provisions of HB 1824 because he wrote a brief to the Maricopa Court on behalf of city leaders supporting the lawsuit.

"I can assure you that I am well aware of the various provisions of HB 1824, having co-authored an amicus brief that helped produce the court order declaring its constitutional violations," Rankin said.

And, he wrote that Foster's reading of state law, and in particular its application to Tucson policies is "simply wrong."

He added that Foster missed that the Sept. 29 date was important because city leaders established a process for religious accommodation requests in August. "A full month before the statute even went into effect," Rankin said. And, he added that federal law already protects "sincerely held religious beliefs."

"This new Arizona law really adds nothing to the obligations of Arizona employers who chose to require COVID-19 vaccination as a condition of employment," Rankin wrote.

Rankin said that he was aware of Ducey's executive order that blocks so-called "vaccine passports." He wrote that state Attorney General Mark Brnovich had written his own opinion in March that Ducey cannot preempt counties solely through executive orders, rather he must order the Arizona Department of Health Services to issue rules and regulations.

"In short, the Tucson policy has process for reasonably accommodating city employees whose 'sincerely held religious beliefs' prevent them from receiving the COVID-19 vaccine(s), in compliance with all applicable federal and state law requirements," Rankin wrote.

Rankin also rejected the governor's arguments that a new executive order, issued on Oct. 7, creates new limits on the city. That order outlines a new system for tracking data about the COVID-19 pandemic, but added into the order, Ducey added a provision that blocks cities, towns and counties from requiring COVID-19 vaccines.

"Again, I can assure you that I have advised my client about the scope of the governor's actual authority," Rankin wrote.

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"In fact, I have publicly advised them that the governor has absolutely no legal authority to use an executive order to preempt or preclude the mayor and Council's exercise of their independent legislative authority under the Tucson Charter, the Arizona Constitution, or other Arizona law," Rankin wrote, "to enact and enforce polices that they determine are necessary and appropriate to promote and protect the health and safety of city employees and our local community."

"I would hope that, in your role as the governor's general counsel, you have provided him the same advice regarding the limitations of his authority, since it is quite clearly the law," Rankin wrote.

In a footnote, Rankin noted that the governor's attempt to use this new order "as a vehicle to preempt a city of Tucson employment policy is painfully absurd, and I hope you would advise him accordingly."

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Tucson City Attorney Mike Rankin during a press conference in May 2020.

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