A majority of Battle Ground City Council members defeated an ordinance that would have prohibited vaccine requirements for city employees and would have stopped mask mandates in city-owned spaces.
During its Oct. 4 meeting, the city council voted 4-2 against the proposed “medical freedom” ordinance. Chief concerns cited among those who opposed the ordinance focused on the potential for legal challenges that the city’s insurance pool wouldn’t cover.
The meeting was the third time the city council had discussions about the ordinance, which was first proposed by councilor Brian Munson on Sept. 7.
When presented in full for the first time on Sept. 20, the ordinance stated that if approved, it would prohibit the city from mandating vaccinations for city employees, contractors and volunteers with the city. The ordinance also prohibited requirements on facial coverings or social distancing in public spaces and buildings, and also prohibited the city from requiring proof of vaccination within city limits.
The only change to the ordinance from Sept. 20 to Oct. 4 was the addition of a penalty for violating the ordinance, Munson said, making the violation a misdemeanor with up to a $250 fine and/or 90 days in jail.
The council’s consultation with attorneys brought concern to those who opposed the ordinance. In an uncommon move, Councilor Shane Bowman moved to open up discussions from executive sessions with legal counsel to the public, which was approved unanimously.
Kirk Ehlis, a Yakima-based attorney the city had brought in for independent counsel, said based on existing law and recent court decisions, the ordinance could “potentially create liability for the (councilors) in their individual capacities.”
Any suits against the city, individuals, councilors or employees would not be covered by the Washington Cities Insurance Authority, putting the cost of legal fees or any award to a successful plaintiff at the city’s expense.
Ehlis said he believes Inslee has the authority to impose vaccination and masking mandates based on past court decisions at the state and federal levels. Ehlis said he saw a potential for lawsuits alleging civil rights violations for plaintiffs forced to go against statewide mandates if the ordinance was approved and enforced, or for wrongful termination for those who decided to go against the ordinance and were subsequently fired.
“If this ordinance is adopted, you have potentially opened yourselves up for a lawsuit,” Ehlis said.
Although there is no vaccine mandate for city employees at the state level, Battle Ground City Attorney Christine Hayes noted President Joe Biden’s executive order last month which requires employers with more than 100 employees to require vaccines or weekly testing of employees. Based on how employees are defined, the city may fall into that category with 111.
Hayes said the Occupational Safety and Health Administration (OSHA) would implement Biden’s order, and could assess fines up to $14,000 per violation. If the city was out of compliance with OSHA, it could lose its ability to receive federal grants.
Hayes also said the component of the ordinance that would have prohibited mask requirements in the city’s open spaces and buildings would go against state mandates, potentially subjecting employees who followed the city ordinance to misdemeanor charges. There was also the potential for violations of the Open Public Meetings Act if in-person public meetings flouted state mandates. Currently, the city council meets remotely.
“We would have a potential issue where we would have a local ordinance that is in direct conflict with state law,” Hayes said, explaining that so far all challenges to the governor’s mandates have been struck down.
“We’ve been advised by two different attorneys — one who none of us have met — on what the legal ramifications are,” Bowman said.
He questioned Munson’s intention with the ordinance, since Munson is up for reelection this year.
“We are making political statements right now. We are doing that from the dais. We are trying to win elections,” Bowman said. “We are trying to say we’re supporting people when in all actuality we are only making laws for the government … of the city of Battle Ground.”
When asked by Bowman about city employees, Battle Ground City Manager Erin Erdman said the majority of city employees likely live outside of city limits.
“If this was for the entire city, that’s something completely different that we can talk about,” Bowman said. “We’re hearing that we can’t do this as it is, there’s no way we’re doing this for the entire city.”
The ordinance would not have had an effect on businesses in the city because businesses could have implemented their own mask or vaccine requirements for patrons or employees.
“Nobody that’s supposedly conservative wants to step on the toes of a private employer,” Bowman said.
Battle Ground Deputy Mayor Philip Johnson mentioned in 2019 the city felt a political push to stand against recently-enacted firearms laws. The city deferred to the courts on the legality of Initiative 1639 which was approved by voters in 2018, spurring some, like city councilor Shauna Walters, to run that year in opposition to the city’s stance.
“Here we are again, two years later,” Johnson said, likening the current challenge of state mandates as “tilting at windmills.”
Johnson at one point asked Munson to withdraw the ordinance, as he characterized it as not part of business “that matters to the 21,000-plus people in the city of Battle Ground … parks, cops, streets, those kinds of things.”
Councilor Cherish DesRochers said she Is supportive of medical freedom, but she opposed the approval of the ordinance because of the potential impact it would have on the city. She joined Bowman, Johnson, and Mayor Adrian Cortes in opposition, while Munson and Walters voted for it.
At the prompting of Bowman for other councilors to state their cases for or against the ordinance, neither Munson nor Walters responded.
“I think the citizens should know that you’re willing to put their money on the line,” Bowman said.