The Baker City Council will seek to express opposition to Oregon Gov. Kate Brown’s vaccine and mask mandates through a resolution rather than a lawsuit, at least for now.
The Council voted unanimously on Tuesday, Sept. 28 to instruct City Manager Jon Cannon to draft a resolution similar to what some other cities and counties have approved regarding the mandates.
Councilors have recently heard, through conference calls, from two attorneys, Kevin Mannix and Tyler Smith, about the legal situation.
Mayor Kerry McQuisten said she took away from those sessions that there are 50 to 100 other lawsuits already in the works that would be ahead of any legal challenge Baker City might file, such as asking a judge to issue an injunction temporarily blocking the mandates.
“The other thing I took away from all of this, is there are other legal paths that we could take that are smarter and cheaper because if we go straight for the injunction, then the burden of proof is on us as a city and we’ll very likely lose and it will be very expensive,” McQuisten said.
Councilor Joanna Dixon said that in regard to the mandate that health care workers, including city firefighters, be vaccinated by Oct. 18 if they are to keep working, she favors the city using the religious exception that’s an option in lieu of vaccination.
“The Tyler Smith town hall, one of the biggest things that I took from that was on the religious exemption,” Dixon said. “Essentially, if you are pro-life, if you are opposed to abortion, I think two of the three vaccines use fetal cells — aborted fetal cells — in development and I feel that that would be a valid basis for a valid religious exemption.”
McQuisten agreed, saying employees could “get really religious really, really fast here,” and the state would have to prove they aren’t.
According to Oregon Health Authority (OHA) guidelines, employees who claim a religious exception must fill out a form “stating that the individual is requesting an exception from the COVID-19 vaccination requirement on the basis of a sincerely held religious belief and including a statement describing the way in which the vaccination requirement conflicts with the religious observance, practice, or belief of the individual.”
Cities and other employers, not officials at the OHA or another state agency, will review and verify both medical and religious exception forms, said Jonathan Modie, a spokesman for OHA.
“It’s not like the city is going to review each and every one, because that’s really not our forte, religious exemptions,” Councilor Johnny Waggoner Sr. said.
McQuisten said that in the past two weeks, 23 of Oregon’s 36 counties, including Baker, have passed declarations stating that the vaccine mandate could result in enough health care workers quitting or being fired that the counties’ ability to respond to traffic crashes and other emergencies would be jeopardized.
McQuisten also said she believes the resolution the Council passed in March 2021, declaring an “economic, mental health, and criminal activity crisis” due to the governor’s COVID-related mandates, has “more teeth” than she originally thought. Baker City’s resolution, the mayor said, has been something of an inspiration for other communities that are objecting to the vaccine mandate, which the governor announced in August.
“The idea behind that is to overwhelm the system once again so it’s kind of like exactly what we did, but overwhelm with requests that they cannot meet because of the mandates and hope that those will be pushed back,” McQuisten said.
Dixon said she believes that if cities and counties band together, with resolutions or declarations opposing Brown’s mandates and highlighting the potential problems the vaccine mandate could cause with emergency responders, it will put them in a good position.
“Everybody’s going to overwhelm them and if it does go to lawsuits, then we’re going to have all these other counties, cities, involved also,” Dixon said. “They’re going to be in the same boat that we are and we’ll be in it together.”
Councilor Shane Alderson pointed out that it’s possible that the state, confronted with many cities and counties declaring emergencies, would simply seek federal money to provide the resources the local communities say they might be short of due to the mandate.
“That’s something else that we should consider and think about because it may not overwhelm (the state),” Alderson said.
Waggoner said he understands Alderson’s point.
But Waggoner said that if the city were to take a more aggressive approach with a lawsuit, the burden would then fall on the city.
“All we’re doing is kind of playing chess with a bigger dog,” Waggoner said. “And I get the federal part of it, but ... if they want to send the national guard or whoever out to us, that’s totally up to them. But while this goes on, these things are still going to be playing out in court.”
Councilors tried, and for the second straight meeting failed, to appoint someone to fill the vacancy created by Lynette Perry’s resignation, due to health issues, in August.
During the Sept. 14 meeting, the six remaining councilors reached a voting deadlock when three voted for one candidate, Thomas Hughes, and three voted for another, former councilor Randy Daugherty.
During Tuesday’s meeting, Alderson made a motion to appoint Daugherty. Alderson and councilors Jason Spriet and Heather Sells voted yes. Those three also voted for Daugherty during the Sept. 14 meeting.
But Alderson’s motion failed, as McQuisten, Dixon and Waggoner voted no. Each of those three voted for Hughes during the Sept. 14 meeting.
Perry sent a letter to the city saying she felt guilty for retiring, and urging councilors to appoint Daugherty to replace her.
McQuisten said she had heard, from residents, that Daugherty allegedly referred to the current councilors as unqualified and inexperienced.
“I didn’t make those comments,” said Daugherty, who attended Tuesday’s meeting.
Dixon said she had talked to a local merchant, whom she didn’t name, who also claimed to hear Daugherty make similar comments.
Daugherty again denied saying such things.
Councilors voted 5-1, with Sells opposed, to remove two other applicants from consideration, Michael Meyer and Kara Strutz, as neither received any votes during the Sept. 14 meeting.