The Clark County Council rejected an ordinance proposed through a “mini-initiative” process by county voters that was focused on preventing medically-related mandates on the basis of a lack of legal authority which could have jeopardized millions in funding if it was approved.
On Feb. 1, the council voted 4-1 in opposition following a public hearing that dominated a four-hour meeting. If passed, the ordinance would have prohibited “all mandates within Clark County that discriminate against a person’s health and/or health information privacy.” The ordinance would have imposed fines, permit denials and revocations, on those in the public and private sector who didn’t comply.
Rob Anderson, the chief organizer of the petition for the ordinance, said it wouldn’t have banned all medical mandates, only those he said discriminated against people, which he said included those based on vaccination status. He said some businesses in the county had gone beyond Gov. Jay Inslee’s mandates.
Anderson said the council answered to their constituents as “agents of the people, not sworn to protect institutions, bureaucracies, policies.”
“The petition is a political solution to a political problem,” Anderson said.
Anderson’s focus on discrimination was a chief concern among the two hours of public testimony, which spanned the gamut on those who were for and against the ordinance. With supporters questioning the authority executive orders have in comparison to state laws, those against it pointed to the need for mitigation efforts during the ongoing COVID-19 pandemic as reason to maintain the orders from the state.
Councilor Gary Medvigy moved to waive attorney-client privileges so they could present an overview on what legal advice the council received on the matter to the public. Clark County Prosecuting Attorney Chief Civil Deputy Leslie Lopez said the biggest issue seemed to be the authority the council had on current mandates.
Though there aren’t laws on the books about COVID-19 specifically, Lopez noted there are laws regarding the governor’s executive authority. She said her analysis showed the ordinance would directly go against that authority. She said numerous challenges to Inslee’s executive orders have been upheld in court.
“At this point the council, according to the law, does not have the authority to overturn the legal mandates that are in the state,” Lopez said.
Regarding discrimination, Lopez said unvaccinated individuals are not considered a protected class under law. She addressed potential religious and medical exemptions, which she said followed a process that could lead employers to determine they can’t provide reasonable accommodations for unvaccinated people, though employees could challenge that decision.
“Private employers, school districts, health care places, they all have their own autonomy to decide whether they want to … have more stringent requirements if they like,” Lopez said.
Lopez addressed the financial impacts the ordinance would have had. If passed, employers following the ordinance could be fined by the state. For public schools, the state Office of the Superintendent for Public Instruction could withhold funding to noncompliant districts.
Though it hasn’t happened in Washington, Lopez said in Oregon a school district lost its federal COVID-19 funding since the district’s decision ran counter to statewide procedure.
Noncompliance with state rules could lead to the removal of the local health officer and members of the county’s board of health could be charged with a misdemeanor, Lopez said.
Furthermore, the county could lose substantial funding if they did not comply with statewide orders, she said. The state department of commerce could “recapture” grant funding, which would have decreased county funding by $47.6 million. The county could also lose out on American Rescue Plan Act funding administered by the state to the tune of $95.7 million.
Lopez also addressed a concern among individuals for and against the ordinance regarding privacy laws under the Health Insurance Portability and Accountability Act (HIPAA.)
“If an employer asks an employee … that is not a HIPAA violation,” Lopez said.
She said those rules only apply to health care providers asking about vaccination status.
“I thought it meant that we had privacy, but apparently not,” Council Chair Eileen Quiring O’Brien said about HIPAA.
Quiring O’Brien asked about the potential to add a severability clause to the ordinance to protect
against legal action, which could have eliminated parts of the ordinance that wouldn’t hold up in court.
“I’m not sure, frankly, what would be left in the ordinance if that were to occur,” Lopez said. “I’m not saying it couldn’t happen.”
Medvigy said any severability would require a lawsuit in order to activate the clause, which would come at the county’s expense to litigate.
“It would really eviscerate the entirety of this initiative,” Medvigy said.
Councilor Julie Olson moved to reject the ordinance.
“There’s no doubt that this pandemic has had extraordinary impact on everyone,” Olson said, though she said there were too many inaccuracies and unintended consequences to support the ordinance moving forward. She said there was “clear guidance” the council didn’t have authority to go against state law.
“We’re still in a global pandemic. We’re not out of this yet,” Olson said. “I just hope that by the time we get to the end of this year, we’ve moved on to more normal, but now we’re not there yet.”
Councilor Karen Bowerman said she has a unique perspective on council, having volunteered in a vaccination efficacy study. Bowerman challenged discrimination claims by those against masking and vaccination requirements as she pointed to immunocompromised individuals who are threatened by the unvaccinated. She compared the current claims to those of “freedom-loving smokers” when smoking bans were enacted.
Although she did not support the effects of mandates on private business at higher government levels, Bowerman took issue with the ordinance’s charge to prevent private operations from having their own requirements.
“I do not support the county government pulling freedom from religious organizations or private business,” Bowerman said.
Councilor Temple Lentz said the ordinance wouldn’t move the county forward, and would put every public and private entity in violation with state law
“One individual’s rights do not include the right to bring harm into the public square,” Lentz said.
Medvigy reflected on his law and military careers when explaining his reasoning to reject the ordinance.
“We can’t do what this mini-initiative wants us to do. It would be a violation of law, plain and simple,” Medvigy said.
Challenging the narrative that those who oppose vaccinations are patriots for the country, Medvigy reflected on George Washington and his program of smallpox inoculations at Valley Forge during the Revolutionary War.
“It was probably the first mandate out there,” Medvigy said. “Are we now changing history? Would he not be a patriot today because he wanted to do what was best for our country and his forces and their families? I think not.”
The sole supporter of the mandate, Quiring O’Brien, said she opposed the current mandates from Inslee.
“He closed churches and kept pot shops and liquor stores open. How does that sound? Doesn’t sound right to me,” Quiring O’Brien said.
She expressed sympathy to those who testified on the effects mandates have had on their lives, noting the initiative was a way the public could seek recourse.
“This is their only way to do it and I think that we need to honor that. We need to listen to that,” Quiring O’Brien said.
