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Az Gov. Ducey renews attempt to block Tucson, Pima COVID shot mandates for staff

December order, issued as cases surge, echoes October prohibition that was rebuffed by local officials

Slipped into an order about monitoring the Omicron variant of COVID-19, a new attempt by Gov. Ducey to block employee vaccine mandates in the city of Tucson and Pima County has local officials maintaining their stance that he has no such legal power.

Ducey quietly issued an executive order Wednesday, without issuing a public announcement and without informing the city and county officials that were targeted by his renewed attempt to bar local governments from requiring any staffers to get their COVID vaccine shots.

Tucson City Attorney Mike Rankin said the order has "no legal impact" on the policy requiring city employees to be vaccinated or seek medical or religious exemptions, while a Pima County spokesman said officials would review how Ducey's order would affect a "looming deadline" for unvaccinated government staffers who work with vulnerable populations.

The state attorney general has indicated that Ducey is not legally empowered to block local governments from requiring workers to be vaccinated, Rankin said.

A member of Tucson's City Council told the Tucson Sentinel on Thursday that Ducey's attempt to block shot mandates was "illegal last month, it was illegal last week, and it's illegal now."

The city "will keep its current policy requiring employee vaccinations," officials said in a news release Friday afternoon.

Ducey's order, posted on his website on Dec. 15, largely focused on the spread of COVID-19, and the increase in cases during November which has strained Arizona's hospitals. In his order to have health officials collect more data, Ducey noted that by Wednesday, there have been more than than 1.3 million cases of COVID-19 diagnosed in the state, and at least 23,324 people have died. And, he said that through November, just 8 percent of ICU beds were available and COVID-19 patients accounted for around 40 percent of ICU cases.

Ducey wrote that COVID-19 can cause serious short and long-term complications, and he pushed for immunizations, writing that the COVID-19 vaccines are a "critical component of the whole government strategy to reduce COVID-19-releated illnesses, hospitalizations, and deaths."

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However, as part of the order, Ducey renewed his effort to prohibit vaccination mandates, continuing a long-running political fight over the public health measure even as COVID-19 cases have ramped up in the state.

"No person shall be required by this state or any city, town or county to obtain a COVID-19 vaccine but a health care institution," Ducey wrote. This echoes language from his executive order from Oct. 8, however, it contradicts the policies from governor's order of June 1, 2021.

"Nothing in this Enhanced Surveillance Order requires a person to obtain a vaccine for COVID-19," Ducey wrote in June. "However, employers may implement policies for employees that are consistent with law for such a requirement."

Ducey has repeatedly said that people should be vaccinated against the virus, but his August executive order illustrates the political tension between promoting vaccines and balking at mandates that require them.

"We encourage all Arizonans to get the vaccine — it's safe, effective and free," the Republican governor said in August. "But getting it is a personal choice, and we will not allow discrimination based on vaccination status."

Even as he promoted vaccines, he sought to punish cities, counties, and school districts from requiring them, writing that his August order "builds on our efforts to protect Arizonans from excessive mandates that hinder their freedom to choose what's best for their health." This order, based on Senate Bill 1824, was one of four laws that were ultimately overturned by a Maricopa County Superior Court judge who ruled that the Legislature had engaged in "last-minute log-rolling," and had violated the state constitution which requires that bills be focused on a single subject.

Will Humble, the executive director of the Arizona Public Health Association and former head of the state health department, said Ducey had misused his public health authority once again.

"I would say 'unbelievable' but it's totally believable," Humble wrote on Twitter. He told TucsonSentinel.com on Thursday that the order was largely renewing or consolidating previous executive orders, and that was "pretty boring," except for Ducey's shot at the city of Tucson and others, which he called "typical, consistent fights."

Both Tucson and Pima County have implemented vaccine mandates, though the county's mandate is limited to employees who work with "vulnerable populations." Similarly, the city of Phoenix has pushed for its own mandate.

"Arizona Attorney General Brnovich already told the governor what he doesn't want to hear. He has no authority to preempt local actions through executive orders," Tucson Mayor Regina Romero said Friday afternoon.

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"The governor needs to focus on the crisis at hand as COVID-19 cases rise. He can't say that he's for public health and tie the hands of cities and counties as the pandemic surges to record levels and hospital ICU beds dwindle," Romero said in a news release.

After implementing its mandate, Tucson expects to lose just 11 city employees. So far, out of 3,923 employees, more than 3,500 have been vaccinated, while another 108 asked for a medical exemption. Another 241 sought religious accommodations.

Among Pima County employees, 386 are facing termination. The largest contingent are within the Pima County Sheriff's Department, where 216 people were listed as facing termination as of last week, including 206 PCSD personnel who work in the county jail. But Pima County Sheriff Chris Nanos told the Sentinel that by the start of this week, about another 70 of those workers had gotten their shots.

Friday morning, Nanos provided an update to the Sentinel, indicating that of 120 PCSD staff who were given letters of intent to terminate their employment, just 14 "stated they would not get a shot." 

"We have 30 letters left to serve, and I'm hopeful the 14 will come around," the sheriff said.

Overall, more than 84 percent of the county's 6,279 workers are fully vaccinated.

Ducey's order comes as the state faces a months-long surge in COVID-19 cases, increasing from the summer into what's likely to be a hard winter.

There were ​​490 COVID deaths in Arizona this week, with more than 22,600 newly infected people. The middle of the week had high case numbers, including Tuesday with 203 deaths and 2,168 new COVID infections reported by the Arizona Department of Health Services.

Wednesday had 81 additional deaths and 3,249 new confirmed infections, and on Thursday, there were 20 new deaths from COVID and 2,911 new infections. On Monday, there were 2,391 new confirmed COVID-19 infections while Sunday had 19 deaths and 3,231 new cases reported.

On Saturday, there were 74 deaths and 3,774 new cases, and last Friday, there were 93 deaths and 3,924 new infections.

On Tuesday, Dr. Marjorie Bessel, the chief clinical officer for Banner Health—which manages 30 acute-care hospitals in Arizona and five other states—warned that hospitals in Arizona are operating beyond their capacity, and that further increases in cases might push the network to ration treatments under "crisis standards."

"We are more stretched now than we have been since the start of the pandemic," Bessel said, adding that COVID-19 patients make more than one-third of all ICU patients, and of those infected with COVID-19, 88 percent are unvaccinated. In some hospitals, 100 percent of patients in the ICU because of COVID-19 have gotten their vaccinations.

Ducey's order 'isn't worth much of a reaction'

Mike Rankin, the city attorney, said the executive order "isn't worth much of a reaction."

"The governor used this EO as an updated 'enhanced surveillance advisory,' which is a statutory order requiring health care providers to collect and report certain information," Rankin said. The order has "nothing to do with local authority to establish a vaccine requirement or any other local health measure," Rankin said.

"The attorney general has already told the governor that he has no authority to preempt local actions like the city's vaccine requirement through an executive order, but the governor continues to include it in his executive orders anyway," Rankin told the Sentinel. "This new EO has no legal impact on the city's policy that applies to its own employees."

County officials said they will review the order.

"Having just learned of this today, the county will give it its due consideration and seek guidance from the County Attorney’s Office about the current county mandate and its looming deadline for unvaccinated staff working with vulnerable populations," said Mark Evans, a Pima County spokesman.

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Tucson City Councilman Steve Kozachik was sharper in his criticism of Ducey.

"Einstein's quote comes to mind," Kozachik said. "Doing the same thing again and again, but expecting a different result is the definition of insanity."

Ducey's attempt to block vaccine mandates, Kozachik said was "illegal last month, it was illegal last week, and it's illegal now, and we're going to keep pushing forward to protect people."

"Ducey's trying to show concern about COVID's escalation, but to then throw in caveat that we're going to handcuff you, and block mandating the only reasonable action to curtail this thing? It's ignorance and hypocrisy combined, and I'm not sure which side of the scale is heavier."

Kozachik said that Ducey should show "some compassion" to healthcare workers who have been fighting the novel coronavirus in full protective gear, while watching "this political football get kicked back and forth."

"We're following the science," Kozachik said, adding that the new variant of the novel coronavirus, dubbed Omicron, is here.

"We know it," he said, "but, even without that—I keep the numbers in my newsletter—first week in June, we had 130 new COVID cases. Every week since October, we've had over 2,500 new cases. And, two weeks ago it was over 4,000."

"We're a factor of 30 higher than we were in the first week of June," Kozachik said, and he worried about how people continued to act as if the disease wasn't present, noting the large crowds "crammed" into McKale Center for the University of Arizona's men's basketball games. "This is worse than it was a year ago when we were shut down," he said, arguing that UA should shift back to online classes like other schools including Cornell University and Notre Dame.

"From a number standpoint, we're exactly where we were last year," he said. "The only difference is we have a solution, which is the vaccines."

Ducey's order requires hospitals to report every day at noon a series of metrics, including how many ventilators are in use, the number of ICU beds in use, and how many people are waiting for transfer out of the system beyond 24 hours. The new surveillance order also requires hospitals to report how many intubations are performed for respiratory diseases, and how many COVID-19 patients are discharged per day.

The order also requires hospitals to tell ADHS how many extracorporeal membrane oxygenation machines are in use. The machines, known as ECMOs, help support people enduring often profound respiratory distress by drawing blood from the body, forcing oxygen into the cells, and then returning that oxygenated blood. ECMO machines have been used to help people as a treatment when ventilators have failed, and in recent weeks, Arizona hospitals have warned that few ECMO machines are available because of the rise in COVID-19 cases over the fall and into the winter.

Among other provisions, Ducey also made sure to note that if one part of his order was held invalid by a court, this would not affect the other provisions, a reference to the state's fight with the Biden administration over the federal government's move to require vaccinations for employers with more than 100 people, as well as federal contractors, and military personnel.

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Arizona Attorney General Mark Brnovich has repeatedly attempted to challenge these mandates, leading one lawsuit that was immediately slapped down by a federal judge, while joining another involving nearly a dozen other Republican AGs in an attempt to void a mandate that requires health care workers to get vaccinated.

In a blog post, APHA said that Arizona has been experiencing  more than 200 COVID-19 deaths per week since August 22, rising to 300 deaths per week starting in mid-November.

"So far, 22,947 Arizonans have lost their lives to COVID-19 making it Arizona’s leading cause of death, the only state to achieve such a dubious distinction," Humble wrote. He said that other governors are implementing measures to mitigate the spread of COVID especially in light of decreasing hospital capacities, while Arizona's is "overwhelmed already and getting worse."

"Sadly, Gov. Ducey couldn’t care less and has no intention of doing anything whatsoever," Humble wrote.

APHA's mortality report published Thursday found that Arizona endured 36,000 excess deaths connected directly or indirectly to the COVID-19 pandemic, and that deaths in 2020 were 73 percent higher than they were in 2017 to 2019. The group warned that a limited number of vaccinations and the governor's "resistance" to implementing evidence-based interventions like universal indoor public masking requirements and vaccine mandates "will lead to many more preventable hospitalizations and deaths among Arizona residents."

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Paul Ingram/TucsonSentinel.com

Ariz. Gov. Doug Ducey during a press conference at the University of Arizona in March 2021.

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