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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 C~UTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. 1 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) CAUTION: Do not open attachments or click on links unless ou reco nize the sender and know the content i safe. 1 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 CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. 1 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 CAUTION: Do not open attachments or click on links unless 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 CAUTION : Do not open attachments or click on links unless you recognize the sender and know the content is safe. 1 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 CAUTION: Do not open attachments or click on links unless nize the sender and know the content i safe. 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 CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. 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 CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. 1 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 CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe 2 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2021 (FYTD) 2020 2019 2018 3 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 1 2 3 4 5 6 7 8 9 10 l 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4 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. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5 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. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 7 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). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 8 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) 9 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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). 1 2 '3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 10 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. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 11 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). 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 13 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 14 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. 1