HomeMy WebLinkAbout2021-09-21; City Council; ; Collection of City Employee Vaccination InformationMeeting Date: Sept. 21, 2021
To: Mayor and City Council
From: Scott Chadwick, City Manager
Staff Contact: Judy von Kalinowski, Human Resources Director
judy.vonkalinowski@carlsbadca.gov, or 760-473-4670
Subject: Collection of City Employee Vaccination Information
District: All
Recommended Action
Adopt a resolution empowering the Director of Emergency Services to require the collection of
city employee vaccination information to aid the city’s COVID-19 pandemic planning,
prevention, response and compliance efforts.
Executive Summary/Discussion
As the COVID-19 pandemic persists, federal, state and local authorities are focusing on
vaccination as the primary means of reducing the spread of the disease and preventing serious
illness from the disease. President Biden’s recently announced COVID-19 Action Plan includes
requiring federal contractors and most private employers to institute mandatory vaccination
and testing programs. The state has similar requirements for some employers and is expected
to expand the requirements to other employers, including the city.
To plan for and comply with these requirements, the city needs accurate information on the
vaccination status of its employees. The city is able to and has collected vaccination information
from city employees who have voluntarily agreed to provide it. However, this information is not
complete, which is hampering the city’s ability to determine and project the cost of compliance
alternatives. Empowering the Director of Emergency Services (the City Manager) to require the
collection of city employee vaccination information will allow the city to collect vaccination
information from all employees, which will greatly aid the city’s pandemic planning, prevention,
response and compliance efforts.
All city employee vaccination information collected will be kept secure and confidential, and no
personally identifiable vaccination information will be used or disclosed except as permitted by
applicable law.
Options
Empowering the Director of Emergency Services to require collection of city employee
vaccination information will allow the city to have accurate information for its COVID-19
pandemic planning, prevention, response and compliance efforts. If the City Council does not
empower the Director of Emergency Services to require collection of city employee vaccination
Sept. 21, 2021 Item #3 Page 1 of 5
information, the city will continue to rely on information that has been voluntarily provided,
which will be less accurate.
Fiscal Analysis
Approving the recommended action is not expected to have an appreciable fiscal impact as
collection of the city employee vaccination information will be done using existing staff and
technology resources.
Next Steps
If the recommended action is approved, the Director of Emergency Services will issue an order
requiring the collection of city employee vaccination information and city staff will begin the
collection effort. For reference, a draft of the order is included in Exhibit 2.
Environmental Evaluation
In keeping with California Public Resources Code Section 21065, this action does not constitute
a “project” within the meaning of the California Environmental Quality Act in that it has no
potential to cause either a direct physical change in the environment, or a reasonably
foreseeable indirect physical change in the environment.
Public Notification and Outreach
This item was noticed in keeping with the state's Ralph M. Brown Act and it was available for
public viewing and review at least 72 hours before the scheduled meeting date.
Exhibits
1. City Council resolution
2. Draft order
Sept. 21, 2021 Item #3 Page 2 of 5
Sept. 21, 2021 Item #3 Page 3 of 5
RESOLUTION NO. 2021-213
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, EMPOWERING THE DIRECTOR OF EMERGENCY SERVICES TO
REQUIRE THE COLLECTION OF CITY EMPLOYEE VACCINATION
INFORMATION TO AID THE CITY'S COVID-19 PANDEMIC PLANNING,
PREVENTION, RESPONSE AND COMPLIANCE EFFORTS
EXHIBIT 1
WHEREAS, Carlsbad Municipal Code Section 6.04.090(A) designates the City Manager as the
Director of Emergency Services (Director); and
WHEREAS, Carlsbad Municipal Code Section 6.04.l00(A)(G)(e) empowers the director, in the
event of a proclamation of a local or statewide emergency, to execute any special powers conferred
upon the Director by City Council resolution; and
WHEREAS, COVID-19 pandemic states of emergency presently exists in the state, county, and
city; and
WHEREAS, as the COVID-19 pandemic persists, federal, state and local authorities are focusing
on vaccination as the primary means of reducing the spread of the disease and preventing serious
illness from the disease; and
WHEREAS, the federal government is requiring federal contractors and most private employers
to institute mandatory vaccination and testing programs; and
WHEREAS, the state government requires similar programs for some employers and is expected
to expand the programs to other employers, including the city; and
WHEREAS, the city needs accurate employee vaccination information to plan for and comply
with the anticipate requirements and other COVID-19 prevention and response efforts.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as
follows:
1. That the above recitations are true and correct.
2. That the Director is empowered to require the collection of city employee vaccination
information.
3. That the authorization provided to the Director in this resolution shall remain in effect
for the duration of the local COVID-19 pandemic emergency unless terminated earlier
by City Council action.
Sept. 21, 2021 Item #3 Page 4 of 5
EXHIBIT 1
4. That the Director may take any further action necessary and appropriate to carry out
the purpose and intent of thi.s resolution.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad on the 21st day of September 2021, by the following vote, to wit:
AYES: Hall, Bhat-Patel, Acosta, Norby
NAYS: Blackburn.
ABSENT: None.
MA TT HALL, Mayor
1-C ~t:ffl~ uv,.__ FAVIOLA MEDINA, City Clerk Services Manager
(SEAL)
Sept. 21, 2021 Item #3 Page 5 of 5
EMERGENCY ORDER NO. 2021-09-01
AN ORDER OF THE CITY OF CARLSBAD DIRECTOR OF EMERGENCY SERVICES
REQUIRING THE COLLECTION OF CITY EMPLOYEE VACCINATION INFORMATION
WHEREAS, on Sept. 21, 2021, by Resolution No. 2021-213, the City Council of the City of
Carlsbad authorized the Director of Emergency Services under Carlsbad Municipal Code Section
6.04.100(A)(6)(e) to require the collection of city employee vaccination information; and
WHEREAS, the purpose of requiring collection of the city employee vaccination information is to
aid the city's COVID-19 pandemic planning, prevention, response and compliance efforts; and
WHEREAS, the city employee vaccination information collected will be kept secure and
confidential, and no personally identifiable city employee vaccination information will be used or
disclosed except as permitted by applicable law.
NOW, THEREFORE, under the authority conferred by Carlsbad Municipal Code Section
6.04.100(A)(6)(e), and City Council Resolution No. 2021-213, the Director of Emergency Services orders
as follows:
1. The Deputy City Manager, Administrative Services or designee is directed to take all
necessary and appropriate actions to collect city employee vaccination information.
2. The Deputy City Manager, Administrative Services or designee is directed to take all
necessary and appropriate actions to ensure the city employee vaccination information
collected is kept secure and confidential, and no personally identifiable city employee
DATED: 2Z~2.l
F EMERGENCY SERVICES
Tammy Cloud-McMinn
From:
Sent:
To:
Subject:
-----Original Message-----
Council Internet Email
Monday, September 20, 2021 4:26 PM
City Clerk
FW: Revised -Agenda Item 3
From: Melanie Burkholder <melanie@melanieforassembly.com>
Sent: Monday, September 20, 20214:20 PM
To: Council Internet Email <CityCouncil@carlsbadca.gov>
Subject: Revised -Agenda Item 3
Dear Mayor and Council,
>
> I am a resident, homeowner and business owner in Carlsbad, CA.
>
All Receive -Agenda Item # 3
For the Information of the:
CITY COUNCIL
Date9/J,/J/ CA .,,,.-CC .,-
CM ..--ACM ..--DCM (3) ✓
> I write in opposition to releasing a city employee's vaccination status, relative to Agenda item 3 on
tomorrow's meeting agenda.
>
> This is in violation of an employee's right to confidentiality and would create a hostile work environment.
>
> Adoption of this item would result in a dangerous precedent moving forward regarding personal medical
health freedom and lead to segregation of the vaccinated versus the non-vaccinated, as well as have a
potential negative fiscal implication with added costs for proper accommodations.
>
> Further, it could violate an employee's right to religious freedom. Many people choose to exempt
themselves from certain vaccines that were tested and/or manufactured using aborted fetal cells.
>
> For these reasons, I oppose Agenda item 3.
>
> Respectfully submitted,
> Melanie Burkholder, PhD
> Candidate for the 76th District State Assembly
> https://ur1defense.com/v3/_http://www.melanieforassembly.com_; ! !E_ 4x
> U6-vwMWK-Q!4ktNh5PYi9rDZrijgxkBFRI-Rv4DykWWG4NoFm 7ibr _ YD4a930-5-X9tF2H
> BdSUdE8P-$
> 760.828.8420
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Tammy Cloud-McMinn
From:
Sent:
To:
Subject:
Sept. 20, 2021
susannancywight@gmail.com
Monday, September 20, 2021 9:08 PM
City Clerk
Collection of city employee vaccine information
Dear Carlsbad City Council,
Please do not require collection of city employee vaccination information where city
employees have to report their vaccine status. This is a violation.
Why was and is lifesaving early and effective treatments made unavailable and cut-off,
and vaccines made to be the only way? Think about it.
Thank you.
Carlsbad resident,
Susan Wight
Vaccine Mandates 'Potentially Harmful, Damaging Act,' Physician Says • Children's
Health Defense (childrenshealthdefense.org)
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Tammy Cloud-McMinn
From:
Sent:
To:
Diana Betz <dianakbetz@yahoo.com >
Monday, September 20, 2021 11 :35 PM
City Clerk
Subject: Item #3: Oppose proof of vax from city employees
I oppose proof of vax from essential city workers.
To the Carlsbad City Council,
I strongly oppose proof of vaccination mandates and weekly testing for city employees. Such mandates are extreme and
driven by nothing but fear.
Here are the facts. There are legitimate reasons to doubt the COVID-19 vaccine's safety and efficacy: as reported by the
Vaccine Adverse Event Reporting System (a.k.a. VAERS, Department of Health and Human Services), the total number of
deaths associated with the COVID-19 vaccines since December 2020 is greater than the number of deaths associated
with all other vaccines COMBINED since 1990.
Furthermore, being fully vaccinated does not prevent a person from contracting or spreading the virus, as evidenced by
the numerous breakthrough cases being seen throughout the world. Therefore, it essentially comes down to personal
preference -getting vaccinated can only protect the person who got it.
Now to illustrate the risks. Here is some raw data from VAERS' latest release on September 17, 2021:
-14,925 deaths from the COVID-19 vaccines alone since December 2020 compared to 9,001 associated with all other
vaccines in the past 31 years.
-701,561 adverse reactions compared to 820,671.
-15,012 life-threatening events compared to 13,587.
-60,741 hospitalizations compared to 78,377.
-19,210 permanent disabilities compared to 19,577.
City employees, and any person confronted with pressure to take the COVID -19 vaccine, should be given the choice and
dignity to decide based on their own risk-benefit analyses without risking their livelihoods. These vaccines have proven
themselves to be dangerous, deadly, and ineffective at containing the virus.
By forcing employees to prove they've taken a vaccine that is, at best, questionably safe, you force them to choose
between their livelihoods and their health. Do not perpetuate medical tyranny by threatening those who faithfully serve
their community. I, as well as many others who value medical freedom of choice and privacy, oppose proof of vax
mandates as well as oppressive weekly testing.
More information and guidance to navigate and understand the VAERS website can be found
at https://vaersanalysis.info/about/website-validation/
For firsthand accounts that support this data, cover COVID-19 vaccine history and its weak efficacy, and put forward
effective and clinically proven solutions for com batting COVID-19 and variants, I recommend viewing Project Veritas'
HHS Whistleblower Interview (https://youtu.be/obdl7tgKLtA) and ICU Nurse Nicole Whitley (https://youtu.be/wkbpE-
MxXcA)
Thank you for your consideration.
Diana Betz
en attachments or click on links unless ou recognize the sender and know the content i
1
Tammy Cloud-McMinn
From:
Sent:
To:
Subject:
-----Original Message-----
Council Internet Email
Tuesday, September 21, 2021 7:54 AM
City Clerk
FW: Opposition -Agenda item 3
From: Rich Van Every <richvanevery@me.com>
Sent: Monday, September 20, 202110:17 PM
To: Council Internet Email <CityCouncil@carlsbadca.gov>
Subject: Opposition -Agenda item 3
Dear Mayor and Council,
I am a resident, homeowner and business owner in Carlsbad, CA.
I write in opposition to releasing a city employee's vaccination status, relative to Agenda item 3 on tomorrow's
meeting agenda.
This is in violation of an employee's right to confidentially and would create a hostile work environment.
Adoption of this item would result in a dangerous precedent moving forward regarding personal medical
health freedom and lead to segregation of the vaccinated versus the non-vaccinated, as well as have a
potential negative fiscal implication with added costs for proper accommodations.
Further, it could violate an employee's right to religious freedom. Many people choose to exempt themselves
from certain vaccines that were tested and/or manufactured using aborted fetal cells.
For these reasons, I oppose Agenda item 3.
This is for public record.
In honor of your oath -
Richard Van Every
92010
760-310-7819
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Tammy Cloud-McMinn
From: Council Internet Email
Sent:
To:
Tuesday, September 21, 2021 7:54 AM
City Clerk
Subject: FW: Agenda Item 3
-----Original Message-----
From: Beth Barnum <tryn2retire@cox.net>
Sent: Tuesday, September 21, 2021 6:59 AM
To: Melanie Burkholder <melanie@melanieforassembly.com>; Council Internet Email
<CityCouncil@carlsbadca.gov>
Subject: Re: Agenda Item 3
Excellent!!
> On September 20, 2021 at 12:26 PM Melanie Burkholder <melanie@melanieforassembly.com> wrote:
>
>
> Dear Mayor and Council,
>
> I am a resident, homeowner and business owner in Carlsbad, CA.
>
> I write in opposition to releasing a city employee's vaccination status, relative to Agenda item 3 on
tomorrow's meeting agenda.
>
> This is in violation of an employee's right to confidentially and would create a hostile work environment.
>
> Adoption of this item would result in a dangerous precedent moving forward regarding personal medical
health freedom and lead to segregation of the vaccinated versus the non-vaccinated, as well as have a
potential negative fiscal implication with added costs for proper accommodations.
>
> Further, it could violate an employee's right to religious freedom. Many people choose to exempt
themselves from certain vaccines that were tested and/or manufactured using aborted fetal cells.
>
> For these reasons, I oppose Agenda item 3.
:;>
> Respectfully submitted,
> Melanie Burkholder, PhD
> Candidate for the 76th District State Assembly
> https://urldefense.com/v3/_http://www.melanieforassembly.com_; ! !E_ 4x
> U6-vwMWK-Q!8FwleYAYuTAYdL-pjbSCTCX9Ju01LpqCDEaQqVwMXvYwXyeD8EANSyDUAJR
> qUJm5O91U$
> 760.828.8420
1
Tammy Cloud-McMinn
From:
Sent:
To:
Subject:
To whom it may concern :
Cynthia Harf <cmharf@gmail.com >
Tuesday, September 21, 2021 8:06 AM
City Clerk
OPPOSITION to agenda item #3
What is happening to freedom and privacy? We the People oppose the proposal to collect private medical information
OF ANY TYPE by the City of Carlsbad. Studies are just beginning on the long term effect s of the Pfizer shot on
menstruation. 140,000 reports in the US alone of irregularities with menstruation after the shot. This doesn't include
other countries or cases not reported. Joe Biden and Kamala Harris said they didn't trust the shot. Just because they did
a 180 for political reasons doesn't mean your constituents did.
OPPOSE agenda item #3.
Respectfully,
Carlsbad voter
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1
nize the sender and know the content i
Tammy Cloud-McMinn
From:
Sent:
To:
Subject:
Hello
DANIEL HARE <danhare@me.com>
Tuesday, September 21, 2021 9:20 AM
City Clerk
Mandates for Carlsbad city employees
I'm writing to Voice my opposition to mandated vaccines for Anyone but specifically Carlsbad City employees.
Thank you.
Dan Hare
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Tammy Cloud-McMinn
From:
Sent:
To:
Subject:
To City Council Members,
Todd Ruddle <todd.ruddle@gmail.com>
Tuesday, September 21, 2021 9:47 AM
City Clerk
Item #3 on the Agenda
I utterly disagree with the mandate that employees of Carlsbad must submit their personal vaccination records. This is a
violation of HIPAA and of personal rights of privacy.
Sincerely,
Todd Ruddle
7111 Argonauta Way, Carlsbad, CA 92009
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1
From:
To:
Subject:
Date:
Stephanie Wells
City Clerk
9/21 - Agenda item #3
Tuesday, September 21, 2021 12:11:12 PM
All Receive - Agenda Item # 3
For the Information of the:
CI COUNCIL
Date q CA 'V CC )5""
CM A M DCM
Mayor and Council,
I support the adoption of a resolution empowering the Director of Emergency Services to require the
collection of city employee vaccination information to aid the city's COV1D-19 pandemic planning,
prevention, response and compliance efforts.
For those that say, vaccine mandates are "un-American," in reality, they are a time-honored American
tradition. The roots of U.S. vaccine mandates predate both the U.S. and vaccines. The colonies sought
to prevent disease outbreaks by quarantining ships from Europe and sometimes, in the case of smallpox,
requiring inoculations: a crude and much riskier predecessor to vaccinations in which doctors rubbed
live smallpox virus into broken skin to induce a relatively mild infection that would guard against
severe infection later.
Legally speaking, the Supreme Court resolved the issue of mandatory vaccinations in 1905, ruling 7-2
in Jacobson v. Massachusetts that they were constitutional. The Constitution "does not import an
absolute right in each person to be, at all times and in all circumstances, wholly freed from
restraint," Justice John Marshall Harlan, known for defending civil liberties, wrote. "Real liberty for
all could not exist under the operation of a principle which recognizes the right of each individual
person to use his own, whether in respect of his person or his property, regardless of the injury
that may be done to others."
The city must require a collection of city employees to be in compliance with state national and state
vaccination mandates. Not doing so would put the health and well-being of our community at risk.
Thank you,
Stephanie Wells
92008
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Hector Gomez
From: Theresa Carpenter <theresa@exoticpebbles.com>
Sent: Tuesday, September 21, 2021 12:10 PM
To: City Clerk
Subject: Agenda #3
I want to voice my opposition to the collection of City Employee Vaccination Information. This is wrong and possibly
violates federal law. Also Hippa.
Thank you -
Theresa Carpenter
Vice President
Exotic Pebbles
& Glass
OUTDECO USA/Modinex
2045 Corte Del Nogal
Carlsbad CA 92011
(760) 444-4190 phone
(760) 444-3259 fax
(951) 595-2964 Mobile
www.exoticpebblesandqlass.com
wvvw.outdecousa.com
www.modinexpanels.com
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Hector Gomez
From: Katie Taylor <katie@taylorplace.com>
Sent: Tuesday, September 21, 2021 1:36 PM
To: City Clerk
Subject: City Council Meeting 9/21/2021 - Agenda Item #3
Attachments: Arizona Vaccine_Equal_Protection_Complaint.pdf
RE: 9/21/202 — City Council meeting Agenda Item #3
I am adamantly opposed to the Collection of Employee Vaccination Information. The Biden
administration is already being sued over his Covid-19 Action Plan, as unconstitutional... .this
includes State Attorney General Mark Bmovich of Arizona.
Introduction Arizona Lawsuit:
This case presents circumstances that would have been unthinkable to our Founding
Fathers. The Executive Branch has adopted an unconstitutional policy of favoring aliens
that have unlawfully entered the United States over actual U.S. citizens, both native and
foreign born, with the inalienable right to live here. In doing so, the Biden Administration
respected the putative rights of those illegally entering the United States, while
simultaneously showing contempt for the actual rights of U.S. citizens. This preference is
unlawful and violates the Equal Protection Clause. 2. Specifically, the Biden
Administration has disclaimed any COVID-19 vaccination requirement for unauthorized
aliens, even those being released directly into the United States. Although the Department
of Homeland Security ("DHS") offers vaccination to aliens it apprehends unlawfully
entering the United States, it does not insist that they be vaccinated—even if they are
being released into the U.S., rather than being immediately deported. Many refuse:
reporting indicates that roughly 30% decline the offer of vaccination. That is so even
though COVID-19 is prevalent among migrants: "more than 18% of migrant families who
recently crossed the border tested positive for COVID before being released by Border
Patrol. Another 20% of unaccompanied minors tested positive for the virus." The upshot
is that aliens unlawfully crossing into the United States are not bound by any federal
vaccination requirement whatsoever."
I am astonished Carlsbad City Council is even considering this invasion of privacy and
unconstitutional mandate. No City or state should enact anything to do with the Biden Covid
19 Mandate until it has been litigated in the Courts. If there was a sincere interest in Covid-19
planning, a deeper level of questions would be asked. Have you had Covid-19? Have you been
vaccinated and became infected with Covid 19? Have you tested for Covid 19 antibodies? Has
a member of your family had an adverse reaction to the Covid 19 vaccination? Do you have a
condition that prevents Covid 19 vaccination for health reasons? The interest would be on
facts and not to create a potential discrimination hit list. And it is easy to see what comes next,
1
shutting down access to businesses, restaurants, sporting events and all the other normal
activities in life, if you cannot prove you have been vaccinated. What is more amazing, the
current vaccine available has no impact on the most recent Covid variants such as Delta.
This whole exercise is to set up a City Mandate for Employees to be vaccinated. Even as the
VARES system is reporting over 14,000 Covid 19 Vaccine related deaths. Just last night I watch
a woman interviewed, who after he second vaccine shot started developing blood clots that
eventually lead to her losing both legs to the knee and a hand. She had been perfectly healthy
prior to receiving the two vaccinations.
The City Council needs to decide if they support the Constitution of the United Sates or power
hungry unconstitutional mandates. The State of Arizona has already spoken.
Katie Taylor
Taylor Place Real Estate, Inc.
300 Carlsbad Village Dr. #108A-444
Carlsbad, CA 92008
Cell: (760) 803-1681
E-mail: katie@taylorplace.com
CALBRE#10235942
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MARK BRNOVICH
ATTORNEY GENERAL
(Firm State Bar No. 14000)
Joseph A. Kanefield (No. 15838)
Brum (Beau) W. Roysden III (No. 28698)
Drew C. Ensign (No. 25463)
James K. Rogers (No. 27287)
2005 N. Central Ave
Phoenix, AZ 85004-1592
Phone: (602) 542-8540
Joseph.Kanefield@azag.gov
Beau.Roysden@azag.gov
Drew.Ensignazag.gov
James.Rogers@azag.gov
Attorneys for Plaintiffs Mark Brnovich and
the State ofArizona
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
No. 21-
COMPLAINT FOR
DECLARATORY RELIEF
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Mark Bmovich, in his official capacity as
Attorney General of Arizona, and the State
of Arizona,
Plaintiffs,
V.
Joseph R. Biden in his official capacity as
President of the United States; Alejandro
Mayorkas in his official capacity as
Secretary of Homeland Security; United
States Department of Homeland Security;
Troy Miller in his official capacity as
Senior Official Performing the Duties of
the Commissioner of U.S. Customs and
Border Protection; Tae Johnson in his
official capacity as Senior Official
Performing the Duties of Director of U.S.
Immigration and Customs Enforcement.
Defendants.
INTRODUCTION
I. This case presents circumstances that would have been unthinkable to our
Founding Fathers. The Executive Branch has adopted an unconstitutional policy of
favoring aliens that have unlawfully entered the United States over actual U.S. citizens,
both native and foreign born, with the inalienable right to live here. In doing so, the Biden
Administration respected the putative rights of those illegally entering the United States,
while simultaneously showing contempt for the actual rights of U.S. citizens. This
preference is unlawful and violates the Equal Protection Clause.
2.Specifically, the Biden Administration has disclaimed any COVID-19
vaccination requirement for unauthorized aliens, even those being released directly into
the United States. Although the Department of Homeland Security ("DHS") offers
vaccination to aliens it apprehends unlawfully entering the United States, it does not insist
that they be vaccinated—even if they are being released into the U.S., rather than being
immediately deported. Many refuse: reporting indicates that roughly 30% decline the offer
of vaccination.1 That is so even though COVID-19 is prevalent among migrants: "more
than 18% of migrant families who recently crossed the border tested positive for COVID
before being released by Border Patrol. Another 20% of unaccompanied minors tested
positive for the virus."'
3.The upshot is that aliens unlawfully crossing into the United States are not
bound by any federal vaccination requirement whatsoever. Their rights to choose to be
vaccinated—or not—command the unadulterated respect of Defendants. Those of U.S.
citizens: not so much. The same Administration that would not dream of infringing upon
the right of unauthorized aliens to choose whether to be vaccinated (or not), has no
equivalent regard for the rights of United States citizens.
Michael Lee, "Biden's vaccination mandate doesn't include illegal immigrants," Fox
News (September 9, 2021), https://www.foxnews.com/politics/biden-plan-for-forced-
vaccinations-doesnt-include-illegal-immigrants (accessed September 10, 2021).
2 Id
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4.Instead, the Biden Administration has announced multiple, unprecedented
federal mandates requiring U.S. citizens to be vaccinated against COVID-19, upon pain
of losing their jobs or their livelihood. In particular, on September 9, 2021, President
Biden pronounced that his "patience is wearing thin"3 with Americans who choose not to
receive the COVID-19 vaccine. President Biden announced plans to require that all private
employers with more than 100 employees impose COVID-19 vaccine mandates on their
employees; that all federal employees and contractors receive the COVID-19 vaccine; and
that virtually all health care providers receive the COVD-19 vaccine.
5.At the same time, driven by President Biden's campaign promises of lax
immigration enforcement and loose border security, Defendants have created a crisis at
the southern border leading to an unprecedented wave of unlawful immigration into the
U.S. And even though about one in five aliens arriving in the United States without
authorization are infected with COVID-19, Defendants let these aliens refuse vaccination,
thus protecting aliens' freedom and bodily autonomy more than for American citizens.4
6.Indeed, as Table 1 (taken from Defendants' own website) shows, DHS
encounters with unauthorized aliens are at their highest level in years, and continually
increasing.
3 Joseph Biden, Remarks at the White House (September 9, 2021),
https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/09/09/remarks-by-
president-biden-on-fighting-the-covid-19-pandemic-3/ (accessed September 10, 2021)
4 Supra, note 1.
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US. Customs and
Border Protection
FY
All
Citizenship Grouping
All
FY - 2018
Table 1: CPB Encounters With Unauthorized Aliens By Month
us, Customs and Border Protection (CBP) Encounters
US Border Patrol (USBP) Title 8 Apprehensions,
Office of Field Operations (0F0) Title 8 Inadmissible Volumes,
and Title 42 Expulsions by Fiscal Year (FY)
Component Demographic
All All
Title of Authority
All Reset Filters
E] 2019 11 2020 2021 (FYTD)
FY Southwest Land Border Encounters by Month
200K
150K
100K
50K
OK
OCT NOV DEC JAN FEB MAR APR MAY JUN JUL AUG SEP Total
71,944 72,113 73,995 78,417 101,098 173,283 178,797 180,569 188,934 212,672
1,331,822
45,139 42,643 40,565 36,585 36,687 34,460 17,106 23.237 33,049 40.929 50,014 57,674 458 088
60,781 62.469 60,794 58,317 76,545 103,731 109.415 144.116 104,311 81.777 62,707 52.546 977,509
34,871 39,051 90,519 35,905 36,751 50,347 51.168 51,862 43,180 40,149 46.719 50,568 521,090
Source: https://www.cbp.govinewsroom/stats/southwest-land-border-encounters
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7.Although the precise contours of the federal vaccination mandates are not
yet clear, the violation of the Equal Protection Clause is already evident and egregious. In
a nutshell: unauthorized aliens will not be subject to any vaccination requirements even
when released directly into the United States (where most will remain), while roughly a
hundred million U.S. citizens will be subject to unprecedented vaccination requirements.
This reflects an unmistakable—and unconstitutional—brand of favoritism in favor of
unauthorized aliens.
8.This discrimination in favor of unauthorized aliens violates the Equal
Protection Clause. Notably, alienage is a suspect class that triggers strict scrutiny. More
typically (and almost invariably previously), this discrimination was against aliens rather
than for them. See, e.g., Graham v. Richardson, 403 U.S. 365, 371, 375-376 (1971);
Application of Griffiths, 413 U.S. 717, 721 (1973). But the same principle applies to
favoritism against U.S. citizens in favor of aliens. Defendants' actions could never
conceivably pass strict scrutiny.
9.Moreover, even if only rational basis review applied, Defendants'
discrimination is still unconstitutional. Given that, on information and belief, hundreds of
thousands of aliens apprehended by Defendants are being released into the United States,
and given Defendants' palpable indifference to whether these aliens are vaccinated,
Defendants' simultaneous and unhealthy fixation as to whether U.S. citizens are
vaccinated is irrational and indefensible. Defendants' policy of absolutely excluding
unauthorized aliens from all vaccination requirements, while subjecting U.S. citizens to
multiple, unprecedented, sweeping, and intrusive mandates is wildly unconstitutional and
should not stand.
10.Because Defendants' respect for individual rights vis-a-vis vaccination
mandates appears to extend only to unauthorized aliens, and not U.S. citizens, their actions
violate the Equal Protection Clause and should be invalidated. American citizens should
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be entitled to treatment at least as favorable as what Defendants afford to unauthorized
aliens. This Court should accordingly declare this preferential treatment unlawful and
enjoin actions taken pursuant to it.
11.The illegality and incoherence of Defendants' policies is also apparent in
their differential treatment among immigrants. Those who illegally enter the United States
will not be subject to any vaccination mandate. In stark contrast, aliens who go through
legal channels to obtain work visas, lawfully enter the United States, and are employed by
a company with more than 99 workers, will be subject to the vaccination mandate.
Defendants' policies thus discriminate between immigrants by unconstitutionally favoring
those who illegally entered the United States over those who lawfully did so.
12.Defendants' unlawful actions here, however, are but one piece of a greater
series of constitutionally improper actions: one of the greatest infringements upon
individual liberties, principles of federalism, and separation of powers ever attempted by
any administration in the history of our Republic. Defendants' ambitions are not limited
to exceeding their delegated powers and violating the Constitution merely through
unconstitutional discrimination alone. Instead, they intend inter alia to (1) violate the
rights of citizens to bodily integrity, (2) violate principles of federalism, under which the
federal government has only enumerated powers, by exercising the sort of general police
power reserved solely to the States under the Tenth Amendment, and
(3) unconstitutionally subvert Congress's authority by exercising quintessentially
legislative powers, and in a manner that could never pass either (let alone both) Houses of
Congress today—which is precisely why Defendants have no intent whatsoever to ask for
legislative authorization to take such unprecedented actions. Under our Constitution, the
President is not a king who can exercise this sort of unbridled power unilaterally. And
even George III wouldn't have dreamed that he could enact such sweeping policies by
royal decree alone.
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13.Recognizing that the Federal Government lacks the authority to directly
impose a mandate, even the President's own Chief of Staff retweeted that what the
administration was planning for citizens (but not unauthorized aliens) would be the
"ultimate work-around."
at Matthew Hamilton
ce.F&af tivight regtet this retwee‘..
Ccugs corisiae.T the intM and purpc 5,e of peli(ies.F.,pd 1,0airt.'p„im ers
the, -11,cifion that C•SiiA ride- is a -vic:tk-arouncis to enact fragrantly Olegal
.f&defat Qactine Mandates.
U. Renard Wain Retwestsd
Stephanie. Ruhie
OSHA doing this vaxx mandate as an
emergency workplace safety rule is the
ultimate work-around for the Federal govt to
require vaccinations.
PM • :FA-p 7
C) l* sfse• the,q1.3T6 COVID - I 'lit iot4rtri .4c4 tf,
Source: https://www.foxnews.com/politics/klain-vaccine-coronvirus-mandate
14.The inadvertent admission in the preceding paragraph makes all of the
administration's actions constitutionally suspect. These other violations will be the subject
of future challenges. Courts will have an opportunity to review and invalidate those
forthcoming mandates as to private employers, federal contractors, federal employees, and
health care workers. But this particular component—i.e., the unconstitutional
discrimination against U.S. citizens, lawful permanent residents, and aliens lawfully
residing and working in the U.S.—is ripe for judicial review and invalidation now.
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6
PARTIES
15.Plaintiff Mark Brnovich is the Attorney General of the State of Arizona. He
is the State's chief legal officer and has the authority to represent the State in federal court.
Plaintiff State of Arizona is a sovereign state of the United States of America.
16.Arizona is one of four states on the United States-Mexico border. As a
border state, it suffers disproportionately from immigration-related burdens.
17.Defendant Joseph R. Biden is the President of the United States. President
Biden is sued in his official capacity.
18.Defendant Alejandro Mayorkas is the Secretary of Homeland Security.
Secretary Mayorkas is sued in his official capacity.
19.Defendant United States Department of Homeland Security is a federal
agency.
20.Defendant Troy Miller serves as Senior Official Performing the Duties of
the Commissioner of U.S. Customs and Border Protection ("CBP"). Acting Commissioner
Miller is sued in his official capacity.
21.Defendant Tae Johnson serves as Deputy Director and Senior Official
Performing the Duties of Director of U.S. Immigration and Customs Enforcement. Acting
Director Johnson is sued in his official capacity.
JURISDICTION AND VENUE
22.This Court has jurisdiction under 28 U.S.C. §§ 1331, 1346, and 1361.
23.The Court is authorized to award the requested declaratory and injunctive
relief under 5 U.S.C. § 706, 28 U.S.C. § 1361, and 28 U.S.C. §§ 2201-2202.
24.Venue is proper within this District pursuant to 28 U.S.C. § 1391(e) because
(1) Plaintiff resides in Arizona and no real property is involved and (2) "a substantial part
of the events or omissions giving rise to the claim occurred" in this District.
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LEGAL BACKGROUND
25.The Supreme Court established in Bolling v. Sharpe, 347 U.S. 497, 498
(1954) that the Equal Protection Clause of the Fourteenth Amendment is incorporated
against the federal government through the Fifth Amendment's Due Process Clause. See
also Sessions v. Morales, 137 S. Ct. 1678, 1686 n.1 (2017) (the Supreme Court's "approach
to Fifth Amendment equal protection claims has always been precisely the same as to equal
protection claims under the Fourteenth Amendment").
26.Aliens and citizens are protected classes in equal protection jurisprudence,
triggering strict scrutiny when the government has a differential policy based on such
classifications. See Graham v. Richardson, 403 U.S. 365, 371, 375-376 (1971);
Application of Griffiths, 413 U.S. 717, 721 (1973). Generally, prior case law in this area
has involved discrimination against aliens as a class. But the reverse preference in favor
of authorized aliens is just as constitutionally suspect.
27.Under principles of federalism, the federal government has only enumerated
powers and not the sort of general police power reserved solely to the States under the
Tenth Amendment. Printz v. United States, 521 U.S. 898, 919 (1997) ("Residual state
sovereignty was also implicit, of course, in the Constitution's conferral upon Congress of
not all governmental powers, but only discrete, enumerated ones, Art. 1, § 8, which
implication was rendered express by the Tenth Amendment's assertion that 'Mlle powers
not delegated to the United States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.'). "The powers reserved to the several
States will extend to all the objects which, in the ordinary course of affairs, concern the
lives, liberties, and properties of the people, and the internal order, improvement, and
prosperity of the State." The Federalist No. 45 (James Madison).
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FACTUAL BACKGROUND
28.On September 9, 2021, President Biden announced his "new plan to require
more Americans to be vaccinated" by imposing "new vaccination requirements" that
"require all employers with 100 or more employees, that together employ over 80 million
workers, to ensure their workforces are fully vaccinated or show a negative test at least
once a week." He also announced plans to "require[e] vaccinations" of "those who work
in hospitals, home healthcare facilities, or other medical facilities — a total of 17 million
healthcare workers." He further announced that he would "sign an executive order that
will now require all executive branch federal employees to be vaccinated — all. And I've
signed another executive order that will require federal contractors to do the same." And
finally, he announced that he would "require all of nearly 300,000 educators in the federal
paid program, Head Start program" to get vaccinated.5
29.Following President Biden's remarks, the White House released a webpage
with further information about Defendants' "COVID Plan." The White House stated that
"[t]he Department of Labor's Occupational Safety and Health Administration (OSHA) ...
will issue an Emergency Temporary Standard (ETS) to implement" the requirement that
"all employers with 100 or more employees to ensure their workforce is fully vaccinated
or require any workers who remain unvaccinated to produce a negative test result on at
least a weekly basis." The White House webpage also stated that the Centers for Medicare
& Medicaid Services (CMS) would "require COVID-19 vaccinations for workers in most
health care settings that receive Medicare or Medicaid reimbursement..., apply[ing] to
approximately 50,000 providers and cover[ing] a majority of health care workers across
the country."6
30.Upon information and belief, neither OSHA nor CMS have yet published
any regulations regarding the planned vaccine mandates.
5 Supra note 3 (emphasis added).
6 https://www.whitehouse.govicovidplan/ (accessed September 10, 2021)
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31.On September 9, 2021, President Biden signed an Executive Order imposing
on federal contractors "COVID [s I afety [p]rotocols" to be published at a later date by the
Safer Federal Workforce Task Force.' The Executive Order did not explicitly make any
provision for religious or medical exemptions to the "safety protocols." On information
and belief and based on President Biden's prior remarks, Plaintiffs allege that the COVID-
19 "safety protocols" for contractors will include a vaccine mandate.
32.On September 9, 2021 President Biden also signed an Executive Order
requiring that le.lach agency shall implement ... a program to require COVID-19
vaccination for all of its Federal employees."8 The Executive Order made no explicit
provision for any religious or medical exemptions to the vaccination requirement.
33.Defendants have dismantled much of the country's border enforcement
infrastructure, for example, 1) by imposing a near-moratorium on alien removals through
a memorandum issued on January 20, 2021, and then through interim guidance issued by
DHS on February 18, 2021; 2) by abandoning the Migrant Protection Protocols (MIT)
requiring that aliens from third countries requesting asylum at the border with Mexico
must wait in Mexico while awaiting adjudication of their asylum application9; and 3) by
abandoning construction of already-planned and funded border wall and fencing.
Defendants' actions have led to an enormous increase in attempted border crossings by
eliminating disincentives to being caught.
7 Exec. Order No. 14042, 86 Fed. Reg. 50985, "Ensuring Adequate COVID Safety
Protocols for Federal Contractors," (Sept. 9, 2021).
Exec. Order No. 14043, 86 Fed. Reg. 50989, "Requiring Coronavirus Disease 2019
Vaccination for Federal Employees," (Sept. 9, 2021).
9 Defendants' attempt to abandon MPP was enjoined by a district court, and both the Fifth
Circuit and U.S. Supreme Court have denied the federal government's requests for a stay
pending appeal. See Biden v. Texas, No. 21A21, 2021 WI, 3732667 (Aug. 24, 2021); State
v. Biden, No. 21-10806, 2021 WL 3674780, at *1 (5th Cir. Aug. 19, 2021).
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34.DHS's own statistics reveal the unprecedented surge of unlawful migration
and the collapse of DHS's control of the border. July 2021 had the highest number of
encounters in decades—"the highest monthly encounter number since Fiscal Year
2000.1° DHS data show that the number of border encounters in July 2021 was more than
five times the July 2020 and July 2018 numbers, and roughly 2.5 times July 2019.11 DHS
itself has admitted that it is "encountering record numbers of noncitizens ... at the border"
that "have strained DIIS operations and caused border facilities to be filled beyond their
normal operating capacity."12
35.Secretary of Homeland Security Alejandro Mayorkas recently
acknowledged that the Department of Homeland Security has lost control of the border,
lamenting that the current situation is "unsustainable," that it "cannot continue," that the
system is getting close to "breaking," and that "we're going to lose."13
36.In addition, Defendants' actions directly injure the State's quasi-sovereign
"interest, independent of the benefits that might accrue to any particular individual, in
assuring that the benefits of the federal system are not denied to its general population,"
as well as its "interest in securing residents from the harmful effects of discrimination."
Alfred L. Snapp & Son, Inc. v. Puerto Rico ("Snapp'), 458 U.S. 592, 607-09 (1982).
Defendants' policies directly injure these interests, by subjecting Arizona residents to
unlawful discrimination and denying them of the benefit of the Equal Protection Clause.
1° Declaration of David Shahoulian (DHS Assistant Secretary for Border and Immigration
Policy) at 1-2, Huisha-Huisha v. Mayorkas, No. 21-cv-100 (D.D.C. August 2, 2021)
11 https://‘vvvw.cbp.govinewsroom/stats/southwest-land-border-encounters
12 Supra, note 10.
13 Edmund DeMarche, Emma Colton, and Bill Melugin, "Mayorkas says border crisis
'unsustainable' and 'we're going to lose' in leaked audio," Fox News (August 13, 2021),
https ://www.foxnews.com/politics/mayorkas-leaked-audio-border.
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37.Notwithstanding this crisis, on September 10, 2021, White House Press
Secretary Jen Psaki confirmed that COVID-19 vaccinations are not required for
unauthorized aliens at the border. Psaki refused, however, to explain why Defendants
would require such vaccinations of American citizens and aliens authorized to work in the
United States, but at the same time give aliens the right to choose whether to be
vaccinated.' 4
38.Upon information and belief, Defendants also do not impose weekly
COV1D-19 testing requirements on aliens who have unlawfully entered the United States,
as it plans to do for unvaccinated employees of private employers covered by the planned
ETS from OSHA.
CLAIM FOR RELIEF
Unconstitutional Preference For Unauthorized Aliens Over U.S. Citizens
Regarding COVID-19 Vaccine Requirements
(Asserted Under the Equal Protection Clause of the Fourteenth Amendment, As
Incorporated Against the Federal Government Under the Fifth Amendment)
39.The allegations in the preceding paragraphs are reincorporated herein.
40.The Equal Protection Clause of the Fourteenth Amendment, which is
incorporated against the Federal Government Under the Due Process Clause of the Fifth
Amendment, guarantees equal protection of the laws and forbids the government from
treating persons differently than similarly situated individuals on the basis or race, religion,
national origin, or &image. Sessions v. Morales, 137 S. Ct. 1678, 1686 D.1 (2017); Bolling
v. Sharpe, 347 U.S. 497, 498 (1954).
41.Defendants' imposition of vaccine mandates on U.S. citizens and lawfully
employed aliens, but not on unauthorized aliens at the border or already present in the
14 Andrew Mark Miller, "Psaki stands by having employer vaccine mandate while illegal
immigrants get a pass," Fox News (September 10, 2021), https://www.foxnews.corn/
politics/psaki-stands-by-employer-vaccine-mandate-while-illegal-immigrants-remain-
unvaccinated-thats-correct (accessed September 10, 2021).
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United States, constitutes discrimination on the basis of national origin and alienage in
violation of the Equal Protection Clause.
42.Defendants' failure to articulate any justification for their differential,
favorable treatment of unauthorized aliens demonstrates discriminatory intent.
43.Defendants' overt statements and expressive acts, including those of
President Biden stating his "patience is wearing thin" with Americans who choose not to
receive the COVID-19 vaccine and his Chief of Staff retweeting that the plan was the
"ultimate work-around" further indicate discriminatory intent.
44.There is no rational basis for Defendants' differential, favorable treatment of
unauthorized aliens. For relevant purposes, unauthorized aliens and U.S. citizens/lawful
permanent residents are similarly situated.
45.Defendants' differential treatment between immigrants lawfully present in
the United States and unauthorized aliens—with vaccination mandates only to apply to the
former—is similarly unconstitutional and irrational.
PRAYER FOR RELIEF
Plaintiffs respectfully request that this Court enter judgment:
A.Declaring unconstitutional, pursuant to 28 U.S.C. § 2201, Defendants' differential
COVID-19 vaccination policies regarding (1) unauthorized aliens and (2) U.S.
citizens/lawful permanent residents, including by declaring that Defendants do not
have authority to impose the vaccination mandate on U.S. citizens and lawful
permanent residents, let alone discriminate against them as compared to unauthorized
aliens;
B.Enjoining Defendants from engaging in unconstitutional discrimination against U.S.
citizens, lawful permanent residents, and lawfully present aliens, and specifically
enjoining Defendants from imposing on U.S. citizens, lawful permanent residents, and
lawfully present aliens any COVID-19 vaccination policies different from those
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imposed oneunauthorized aliens already present in the United States and on aliens
illegally entering the United States;
C.Awarding Plaintiffs costs of litigation, including reasonable attorneys' fees, under the
Equal Access to Justice Act, 28 U.S.C. § 2412; and
D.Granting any and all other such relief as the Court finds appropriate.
RESPECTFULLY SUBMITTED this 14th of September, 2021.
MARK BRNOVICH
ATTORNEY GENERAL
By: /s/ James K. Rogers
Joseph A. Kanefield (No. 15838)
Brunn W. Roysden III (No. 28698)
Drew C. Ensign (No. 25463)
James K. Rogers (No. 27287)
Attorneys for Plaintiffs
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Hector Gomez
From: Lennie A <lenarkans@gmail.com>
Sent: Tuesday, September 21, 2021 2:00 PM
To: City Clerk
Subject: Item #3 Mandating Proof of Vax for City Employees
Dear City Council,
I am opposed to any mandates regarding proof of vaccinations, especially for our essential city workers.
Federal mandates making employees provide proof of vaccination has shown an alarming decrease in workforce, the
invasion of privacy, violation of current HIPPA laws, divisiveness and hostilities between coworkers.
Who on the council has taken into consideration those doctors who recommend against vaccination for their patients
who have life threatening medical ailments?
What about those who already had the disease and are naturally immunized? Studies have shown these individuals are
better protected than the vaccinated! When will this ever end? How many boosters are you going to mandate? Why
are the elitist Hollywood actors, actresses, movie industry workers, post office employees, Senate exempt from
vaccination?
This mandate is a government power grab for those individuals who will not comply. This is an authoritarian assault on
Carlsbad citizens and Unconstitutional!
Your votes will be noted.
CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is
safe.
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