A four-person roster of Ketchikan Gateway Borough Assembly members held an efficient meeting on Monday evening, unanimously approving all three ordinances that were subjects of public hearings on the agenda and talking with the borough attorney about why the borough likely won't need to enforce a vaccine mandate anytime soon.

Assembly members AJ Pierce, David Landis and Jaimie Palmer were absent from Monday's meeting, which ran about 90 minutes; Assembly Member Jeremy Bynum participated in the meeting by telephone.

Borough Manager Ruben Duran also was absent from the meeting, leaving Cynna Gubatayao to give the manager's report in her first appearance as the assistant borough manager. Gubatayao, the now-former borough finance director, is replacing Deanna Thomas, who resigned as the assistant borough manager earlier this year.

During the manager's report, the Assembly got a chance to ask about a memo that was sent to borough employees on Nov. 5, asking about their vaccination status. The email memo was not attached to Monday's meeting agenda.

"We had an action that occurred on Friday the fifth with a memo regarding reporting of vaccination status of borough employees. I had two Assembly members ask for a chance to discuss that item," Borough Mayor Rodney Dial explained at the beginning of the manager's report. "We obviously have several people that are gone here tonight. There was some discussion with putting that on the agenda, with so much of our Assembly that's missing, was, the manager actually recommended that we could have a question-and-answer session during the manager's report. So, if that's something that you want to do, you can certainly ask questions."

Borough Attorney Glenn Brown explained that the email was sent in response to the federal Occupational Safety and Health Administration's Nov. 4 Emergency Temporary Standard that requires organizations with more than 100 employees — including the borough — either enforce mandatory COVID-19 vaccinations or require face coverings and weekly testing at the workplace.

Brown explained that an emergency temporary standard is "essentially a very abbreviated mechanism for an agency to impose regulations — so abbreviated that, from the day it's announced, the comment period begins then, but the time to begin compliance or steps towards compliance are also then underway. ... It requires a grave danger and it requires an emergency."

Though the 5th U.S. Circuit Court of Appeals stayed the ETS on Nov. 5 —  the day the memo was sent out — the stay "didn't make it clear that ... (the stay) had national application," Brown explained. "Irrespective of whether anyone liked it, (the ETS) was a valid regulation at that point in time. My advice to management was to begin to, at minimum, gather some information so that if we were going to be expected to comply by December 4th and then the second deadline for compliance involving testing in January, we should probably begin to move in that direction.

"There were other strategic reasons to do that at that time that I don't care to discuss with public," he added. "I'll be happy to talk to the Assembly in an executive session if they'd like to talk more about that."

Regarding the Nov. 5 memo, "In essence, the correspondence went out to the employees inquiring as to their vaccination status," said Brown. "It provided no consequence for not responding, and it wasn't hinged upon. It was simply, we've gotten this emergency temporary standard issued and a compliance state. ... That was the very first step we took. And it took not too much longer for the Fifth Circuit to issue a fairly full-throated opinion on the ETS. ... I think they at one point ... referred to it as dubious, and that it may have grave concerns about its constitutional and statutory basis. So at that point they ordered OSHA nationwide to suspend its actions towards implementation of the ETS."

In the meantime, Brown said, the litigation around the ETS is inching closer to a resolution.

"What's happening with the ETS itself at this point is, there's litigation in multiple circuits. There is federal legislation that allows the agency in that circumstance to request, through a multi-jurisdictional assignment, that the cases essentially all be sent to one circuit court — it's done, believe it or not, by a lottery system," he said. "I expect sometime tomorrow, we'll probably find out which circuit court is the lucky winner to resolve this matter on a national basis."

But until it's decided, he told the Assembly, "I think we're good to stand down, stand pat until we get some clear legal direction from whichever circuit court ends up being the lucky one that wins the lottery."

Brown added that if the ETS succeeds in court, he has discussed with management that "there are multiple ways for the borough to deal with that. If it were to turn out that vaccination levels were low compared to community level, there would be a borough interest in maintaining its workforce, and perhaps they take a more active role in the testing. Under the ETS, they essentially cut the employees loose to go get their own testing. It's on their time, at their expense — that's the state of the order. But my discussions with management were that you may need to entertain perhaps helping that process along if that's what's necessary to maintain a workforce so that the borough can carry out its duties."

Assembly Member Jeremy Bynum asked the borough attorney to reiterate his explanation of the intent behind the email memo for the public.

"When this email came out, I received a lot of communications from employees, public and general," Bynum said. "And one of the things that I was communicating to them, and I want to make sure that I was correct in the intent here, is that when the email was sent, at no point was that email being sent to have the determination of employment status for any employee. It was really for the purposes of understanding what our exposure was. Is that a correct statement?"

"I think it's fair to say that it expressed reluctance at needing to ask," Brown replied. "It drew no conclusions, made no connection to continued employment status or anything of the sort."

Dial discussed his concerns with the ETS in his mayor's report to the Assembly. Many people called and texted him about the memo, he said, and it "created quite a bit of anxiety among many of the borough employees."

He subsequently "asked for a staff meeting, which we had. I expressed my concern that the federal mandate, which was the basis for the action, seemed unconstitutional." He said he got permission from the borough manager to write a letter to borough employees, "and I did get some feedback that that helped reduce some anxiety amongst some of our employees."

Also on Monday, the Assembly unanimously approved all three ordinances that were subject to public hearings on its agenda. The ordinances appropriated money from two state water project loans; appropriated money for design and engineering work on field improvements; and appropriated money from various borough funds for maintenance and capital projects to take advantage of federal COVID-19 relief money.

Finally, the Assembly met in executive session to discuss the borough's strategy for labor negotiations with the International Brotherhood of Electrical Workers; the International Organization of Masters, Mates and Pilots; the Alaska Public Employees Association/AFT; and the Inlandboatmen's Union of the Pacific.