The Daily Agenda: The legality of mootness
Settlement nears in COVID vaccine mandate lawsuit ... City to vote on new "meet-and-consult" process ... Rezoning flop on Broadway.
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A years-long lawsuit between the City of Tucson and two local public safety labor unions could finally be reaching a settlement, but recent court filings focused largely on whether the whole thing is even relevant anymore.
In August 2021, the Tucson Police Officers Association and Tucson Fire Fighters Association sued the city over a COVID-19 vaccine requirement for all city employees.
They accused the city of breach of contract for not meeting with union leaders before voting to approve the mandate, amending the lawsuit a few months later after the city imposed penalties on the unvaccinated.
The city denied the claim, saying the memo of understanding that exists between it and the unions is not a legally enforceable contract.
The situation took a turn in December of that same year, when Gov. Doug Ducey signed an executive order banning COVID vaccine mandates for government employees. The following year, the Legislature enacted a law prohibiting any government entity from requiring residents to receive a COVID vaccine.
Even though the issue that led to the filing of the suit was resolved, the case has raged on, with dozens of court filings and appearances since then.
This spring, the argument shifted to whether the case should be dismissed for mootness, which in the legal world means there’s no actual dispute because it’s already been resolved.
The city believes it’s moot, saying in a court filing that “meaningful meet-and-confer processes would require time travel.”
The attorney representing the unions, Brian Marchetti, strongly disagrees, saying the issue is the violation of contract and therefore not moot.
“The issues to be decided are of great public importance,” Marchetti wrote in a brief. “Stated simply but accurately: this case is about yesterday and tomorrow.”
Marchetti said the unions are entitled to a ruling on the breach of contract issue and for the court to decide if the mandate was a change in terms and conditions of employment that would require a meet-and-confer.
“Someone is very wrong as to the meaning and effect of the contracts and the Tucson City Code, and this case is a vehicle for the resolution of those still unresolved issues,” Marchetti wrote.
The city argues this bell can’t be unrung, saying the issue has been resolved because the vaccine requirement has been implemented, repealed and can’t be reenacted.
“This is not the appropriate case in which to answer them given that the circumstances that gave rise to the actual dispute in this case have gone away and aren’t likely to be repeated,” City Attorney Mike Rankin wrote in a brief responding to Marchetti’s argument.
Rankin wrote that the state’s mootness doctrine is appropriately applied in this case, asking the court to dismiss the unions’ complaint.
We reached out to both sides for comment, but didn’t receive responses.
Pima County Superior Court Judge Greg Sakall took the dueling opinions under advisement, encouraging the parties to try to reach a settlement. They so far haven’t.
Without a ruling and with a second settlement conference weeks away, the city has taken action that suggests perhaps the issue isn’t moot after all.
On Tuesday, Mayor Regina Romero and the city council discussed the case with Rankin and other city attorneys during executive session.
The council voted 6-0 to advise the city attorney staff to prepare an ordinance establishing a “meet-and-consult process.” Council plans to discuss and vote on the ordinance during its Sept. 6 meeting.
Given that the unions’ remaining qualm seems to be that they should have been consulted before the council voted on the vaccine mandate, the ordinance could be the key to resolving the case.
The second settlement conference is scheduled for September 13, with three hours set aside for discussions.
It’s unclear if the city’s plan to adopt a meet-and-consult process a week before will make a difference, but it can’t hurt.
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Proposed contract struck down: Cochise County supervisors voted down a proposed contract Tuesday with two companies that offered to add measures like watermarks and barcodes to prevent ballot fraud, Arizona Public Media’s Summer Horn writes. In a work session before the meeting Tuesday, the board approved Elections Director Bob Bartelsmeyer to fully take over the elections department with the resignation and termination of the agreement with Interim Elections Director (and current County Recorder) David Stevens.
Sharing the stage: U.S. Reps. Raúl Grijalva and Juan Ciscomani might not agree on everything, but they sometimes agree on issues, such as avoiding a government shutdown, during a forum on Wednesday hosted by the Tucson Hispanic Chamber of Commerce, the Arizona Luminaria’s Becky Pallack reports.
“It seems that the old saying never judge a book by its cover holds true with Latino congressmen in Southern Arizona, even when they sit on opposite sides of the political aisle. The pair found more common ground than their favored politico quotes first signaled,” Pallack reported.
Rezoning flop: The seven-acre lot on the corner of Rosemont and Broadway is still vacant, Arizona Daily Star columnist Tim Steller writes. Over the years, the lot hasn’t been redeveloped for various reasons, including neighbors opposing a Walmart years ago to rising interest rates today. Steller traces the history of the corner, and there’s a lot to tell.
“A combination of unfortunate underlying zoning, drawn-out processes, neighborhood objections and random events have kept anything from materializing. It also feels a bit like Tucson being Tucson,” Steller writes.
History buffs unite: The historical commissions of the City of Tucson and Pima County could re-join forces next month, two years after some bad advice from the National Park Service led the city and county to decide to split into two separate historical commissions. The county board of supervisors and the city council are scheduled to vote on it at their meetings next week, County Administrator Jan Lesher and City Manager Michael Ortega wrote in a Tuesday memo.
Help us make history as Tucson’s most successful political newsletter of all time.
DIY til you drop: The do-it-yourself boom for home improvement is fading for big-box stores, but local DIYers are still flocking to the Habitat for Humanity Tucson’s HabiStore on Grant and Fairview, Jimmy Magahern reports for Tucson Local Media. The pandemic brought big profits for Home Depot and Lowe’s, but those companies have seen their profits level off this year. Meanwhile, the HabiStore is watching building materials, tools and hardware fly off the shelves.
57: The number of hours remaining until our “Agenda Live!” event at the Loft Cinema. Tickets are going fast. Join us Sunday at 3 p.m. and hear Caitlin, Curt and Hank talk about life behind the scenes in the Agenda universe. You could also become the lucky owner of a portrait by legendary cartoonist David Fitzsimmons.
Love the Habistore!