DENVER – A Denver District Court judge dismissed a lawsuit Wednesday filed by seven Denver police officers that challenged the city’s COVID-19 vaccine mandate for city employees and some others and which goes into effect Thursday.
Judge Shelley Gilman ruled the district court did not have subject-matter jurisdiction in the case because the officers who sued did not exhaust their administrative remedies through the city first.
The seven officers filed the lawsuit last week against Denver’s mayor, police chief and executive director of the public health department claiming the city does not have the authority to mandate vaccines.
“While there’ve been allegations that it would be futile, the court would find the plaintiffs have failed to establish beyond a reasonable doubt that futility,” Judge Gilman said in her ruling.
She also challenged the last-minute filing of the suit, saying that the city announced the requirements on Aug. 2 and modified them in early September. Judge Gilman said the plaintiffs “certainly had time to have had it heard even sooner than it was heard by this court.”
Denver’s vaccine requirement was announced in early August as a public health order that requires all city employees, school staff, and others in congregate care settings to be fully vaccinated by Sept. 30. Those employees had to start their vaccine cycle of one Johnson & Johnson vaccine or two doses of Moderna or Pfizer by Sept. 15. The mandate applies to more than 10,000 employees.
The city attorney’s office told Denver7 last week that city employees who do not meet Thursday’s deadline and have not received an exemption will be disciplined in the following fashion:
· Starting Oct. 1, departments and agencies will start issuing contemplation of discipline letters.
· First offenses will result in a presumptive 10-day suspension without pay.
· Second offenses for employees who do not meet the requirement past their suspension period will presumptively be dismissed.
· Minor first violations by employees who are close to being fully vaccinated will not involve discipline.
· If employees who receive exemptions do not comply with their accommodations, they will face the same discipline as non-vaccinated employees.
· During the disciplinary process, unvaccinated employees will be subject to masking, testing, distancing and other requirements.
· Career Service employees who are fired will not be eligible to be employed by the city for five years under city rules.
When the city officials announced the mandate in August, they said employees who did not comply would be subject to punishment, including termination, but did not elaborate on specifics.
The attorneys for the plaintiffs had claimed in the lawsuit that there could be “a sudden mass migration of police officers” and that “hundreds” had discussed being plaintiffs in the case, though only seven officers were named.
Denver Assistant City Attorney Joshua Roberts argued Wednesday that the plaintiffs had filed an “11th-hour appeal” after having adequate time to file suit over the past two months and also that they did not appeal the public health order in a typical administrative fashion, with which the judge agreed.
The attorney for the officers, Randy Corporon, told Denver7 after the hearing that he intended to file a complaint with the city’s department of public health and environment. Corporon claimed to be light-headed after he was told to wear a mask in accordance with court requirements, and Gilman allowed him to pull his mask down for the roughly half-hour hearing.
“It would have been prudent for you to have requested an exemption prior to this hearing,” Gilman told him.
In a statement provided to Denver7, city officials said the judge's ruling affirmed the city's position and "well-settled law" as seen in other places across the country.
"The judge’s ruling confirms this mandate is an appropriate way to protect the health and safety of city employees and workers in high-risk settings throughout Denver," said Mayor Michael Hancock. "This is about saving lives, and we’re grateful to the 94 percent of city employees who are complying with the vaccine public health order. Our city employees have always put service to their community first, and they have demonstrated that once again by getting vaccinated."
From his part, Denver Department of Public Health and Environment (DDPHE) executive director Bob McDonald said the city's vaccine requirement was necessary and will "help ensure hospital capacity isn’t jeopardized, kids can stay in school for in person learning and ultimately, to save lives."
"For over 100 years, the courts have recognized the authority of local governments to protect public health and safety through vaccine mandates because vaccines save lives," said City Attorney Kristin Bronson. "We have been encouraged by the positive response to this mandate by the vast majority of city employees and are confident this decision will continue to promote public acceptance of this important public health order."
According to Denver data released last Friday, 92% of Denver’s full-time workers have been fully vaccinated. But among DPD officers, only 82% have been fully vaccinated – the second-lowest rate among city departments ahead of the Denver Sheriff Department, of whom only 78% are fully vaccinated.
Nearly 800 exemption requests were submitted to the city across all employees, and 627 have been approved. Fifty-two were denied and 68 were still under review as of last Friday.
Denver Public Schools, to which the requirement also applies, said Wednesday that 83% of its employees are vaccinated or have received an exemption. If employees do not follow the order, letters of reprimand will be sent to them on Oct. 4, and unvaccinated employees will have to comply with weekly testing, according to the district.
If those employees continue not to follow the requirement, the district will make recommendations on Nov. 18 to dismiss employees who do not fall in line effective Jan. 2, 2022, though employees will be able to have that dismissal dropped if they get fully vaccinated between Nov. 18 and Jan. 1.