Council debates ‘Medical Freedom’ versus obtrusive, perhaps illegal, governmental overreach

After being in the middle of a firestorm of controversy nationally during the southern border child separation policy and subsequent court orders reversing that policy, former Trump Administration Department of Refugee Resettlement Director Scott Lloyd got off to a rocky start on the Front Royal Town Council with his proposal to rename a prominent town street in honor of his former boss, the 45^th president of the United States. For some that seemed a historical jumping of the gun while Mr. Trump remains under multiple state criminal investigations.

At a June 14 Town Hall work session, the first-term councilman found himself again under the scrutiny of colleagues, as well as town legal staff, with new town code proposals.

File photo of Councilman Scott Lloyd at earlier Front Royal Town Council meeting. Royal Examiner Photos by Roger Bianchini

Draft One of Lloyd’s so-called “Medical Freedom in the Town of Front Royal” Ordinance proposal “would prohibit any business or entity … operating in town from requiring its employees, volunteers, members, etc. to receive any of the COVID vaccines as a condition of employment, membership, etc.” the agenda packet summarized.

Under a “POLICY” heading, the draft version of the ordinance elaborates that “The residents of Front Royal have a natural right to be secure in their persons and to be free of economic or moral coercion to take actions with which they disagree, including and especially actions that involve the violation of one’s person.”

Later, perhaps with a nod to the Town perspective on the recent County and Sheriff’s Office investigation into possible illegal or fraudulent dumping of commercially treated solid waste with residential trash at the County’s Bentonville solid waste transfer station, Lloyd’s Option 1 (“COVID-specific”) draft continues of the above-stated “natural right” – “They are furthermore at the heart of laws prohibiting unreasonable searches and seizures, battery, sexual violence, assault, defamation, and harassment.”

This reporter is not sure where the final five on that list of illegal actions against a person originates in this anti-vaccination proposal. – Is the councilman equating a medical vaccination with “battery, sexual violence, assault” etc.?

But as to the opening personal offense on the above list – “unreasonable searches and seizures”, readers will recall that the Town legal department publicly asserted on May 24^th that the Town garbage truck crew questioned for about 40 minutes by Sheriff Butler and his deputies at the County’s Bentonville solid-waste transfer station about the load they were carrying on April 20, were subject to an “unreasonable search and seizure” in violation of their Fourth Amendment Constitutional Rights.

A natural progression? According to the Town perspective, its employees have a ‘constitutional right’ not to be questioned by law enforcement about their roles in suspected illegal or fraudulent activities on behalf of the Town. Has Councilman Lloyd simply carried that stance forward to a ‘natural right’ of all town citizens to be legally protected from employment consequences from their health-care decisions?

Part of council’s self-identified “libertarian majority”, Lloyd also managed to take the claimed “natural right” to do as one pleases in public situations, including during a global viral pandemic that as of June 15 is attributed with claiming over 3.8 million lives worldwide; nearly 606,000 nationally; and 59 fatalities of over 3,000 cases reported in Warren County over the past year and a half, into the religious and constitutional spheres: “This principle is at the heart of laws ensuring the free exercise of religion, freedom of speech, and freedom of assembly and association,” Lloyd’s Option 1 (COVID-specific) proposal asserts.

Aborted “Broader” option

A second original draft proposal – Lloyd’s “OPTION 2 (Broader)” – would have extended the above prohibitions on businesses and any other “entity” operating in the Town of Front Royal from requiring virtually ANY medical procedure, including drug tests and temperature-taking, diagnostic medical or health information, from its employees, volunteers or members.

Lloyd’s original Option 2 states: “It shall be unlawful for any entity operating within the Town of Front Royal 1/ to fail or refuse to hire or confer any lawful public or generally available benefit or service, including education and medical service or care, to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because such individual has declined to take a vaccine, a drug test, or a medical test, or any other medicine or medical or diagnostic intervention …”

Lloyd continues here into a realm of intrusive medical procedures targeting various bodily orifices to this reporter’s knowledge not on the table for COVID testing, vaccinations or general medical disclosures in Front Royal or Warren County – “… or has declined to take any other action involving the acceptance into one’s body, including the threshold of any orifice, any food or foreign substance or object …”

Perhaps a clue to the above references is offered in a 2-1/2 page draft “opinion” piece Lloyd included in support of his original proposals and analysis of a “natural right” for people not to be subject to employment or other public consequences for their own medical decisions, even when fatal public health consequences could be a result of those decisions. In his draft Opinion titled “Liberty and the Coronavirus” Lloyd writes: “Now that China has begun using penetrative anal coronavirus swabs, the invasiveness of these preventative measures has come into focus …”

Okay dear readers, raise your hand out in virtual land if you have been asked to take a “penetrative anal coronavirus swab” by an employer, school, store, or other places of public gathering related to Coronavirus pandemic precautions in Front Royal, Warren County, or elsewhere in the U.S. – And please let us know if you raised your hand.

Councilman Lloyd, middle left of the table, presents his ‘Medical Freedom Ordinance’ proposal to his colleagues. They, along with town legal staff, greeted his preferred Option 1 with some skepticism.

Lloyd, a self-described “policy attorney” by trade, told his colleagues he modeled the language of his ordinance proposals on “the Civil Rights Act”. That is the 1964 federal legislation that made discrimination based on “race, color, religion, or national origin” illegal in educational, workplace, and other public arenas.

While “natural rights” and “liberties” are repeatedly referenced in Lloyd’s “Medical Freedom” Ordinance drafts, nowhere was there a reference to a “natural right” of people in Front Royal to be physically safe from the spread of a potentially fatal disease by those refusing medical precautions, or perhaps even social distancing guidelines, to avoid passing on such viral contamination.

And in summarizing his intent during the June 14 work session discussion Lloyd seemed to offer a mixed message on the pandemic and his proposal: “What I’m trying to do is be proactive as a government entity to get out there and say, you know, as far as we’re concerned, we want people within our town limits to be protected; and lets’ be clear if you don’t want to take this vaccine, as a matter of law you are protected from having to take it. And that to me seems straightforward and the best approach.”

Okay readers, another show of virtual hands if this proposal seems “straightforward” or “clear” regarding “we want people within our town limits to be protected”. Of course, the councilman fell short of specifying “protected from what”. – Perhaps rather than the COVID-19 Coronavirus, he meant “protected” from science and medical technology.

However, Lloyd may have done a little pre-work session survey of his colleagues’ perceptions of his proposals. By 7 p.m. Monday evening Lloyd had backed off his original “Broader” Option 2 draft in favor of one limiting his Option 1 COVID vaccine prohibition to Town employees – “Option 2 (Town-specific version)”.

About that Dillon Rule …

But as to his surviving Option 1 (COVID only) town-wide legislative proposal, first Councilman Jacob Meza and Councilwoman Letasha Thompson, then Town Attorney Doug Napier, questioned the Town’s authority to legislate against private-sector businesses/employers and other entities being able to make their own rules on how their employees must respond to a public health crisis.

“The biggest question in my head, and this is for Doug (Napier), can the Town actually tell other businesses that you cannot mandate a vaccine for your employees?” Meza, a Valley Health employee asked, adding, “And I don’t believe that’s the case. So, that’s why I struggle with this.”

“We’re going to get a lawsuit out of it,” Thompson offered of her appraisal of the Town attempting to legislate by what rules the private sector and even non-profits and social clubs may run their businesses or operations, in this case regarding public health concerns.

With both state and federal governments weighing in on COVID-related public health measures, Town Attorney Napier questioned the Town’s jurisdiction to attempt such a legislative mandate. He noted “hundreds” of examples of case law stretching back to the 1890s, only a portion of which he’d had time to review; however, offering a perspective from that initial research.

“It seems to me what the law is, and I want to make sure I understand it, the status of the law is it’s within the police power of the State to require vaccines for communicable diseases unless you have a demonstrable religious reason not to get immunization or you have a demonstrable health reason that getting a vaccination would be detrimental to your health,” the town attorney told council. Napier added that he would like additional time to review that extensive case law before making a final judgment as it applied to Lloyd’s proposal.

Bottom right of the table, Town Attorney Napier explains his initial legal research dating to the late 1890s when the Dillon Rule was established in Virginia. That research led to ‘strong’ indications municipal governments do not have such broad legislative authority as Lloyd was forwarding in his ‘Medical Freedom Ordinance’ proposal.

But Napier’s initial reaction to what he had read is likely particularly true in a Dillon Rule state like Virginia. The Dillon Rule, which dates to 1896 in the Commonwealth, being defined as the “legal principle that local governments have limited authority, and can pass ordinances only in areas where the State General Assembly has granted clear authority”. An additional Dillon Rule explanation cites a legal “bottom line” which is that “If there is a question about a local government’s power or authority, then the local government does NOT receive the benefit of the doubt. Under Dillon’s Rule, one must assume the local government does NOT have the power in question.”

As the discussion progressed, Napier quoted a related U.S. Supreme Court decision: “The establishment and enforcement of standards of conduct within its borders relative to the health of its people is a vital part of the State’s police power. So, I want to make sure that we as a town, have that authority. With all due respect, I do question strongly whether we have the authority as a town to enact an ordinance like that.”

Despite this apparent bulk of legal precedent against such municipal legislation, in response to Meza’s assertion he did not believe the Town had such legislative authority, policy attorney Lloyd disagreed. “I can’t think of anything that would prohibit us from doing that. If we wanted to ban mopeds or dog walking or something, it’d be unreasonable,” Lloyd countered, referencing a “list” of obsolete town codes that are sometimes found on the books – “It’s illegal to walk on Sunday on your hands and those sorts of things,” he offered in defense of his preferred Option 1 town-wide proposal against employment consequences from one’s COVID-related medical decisions.

“In the absence of either a federal or a state-wide mandate, then I would think we’d be free to do what we want until the State speaks or the feds speak,” Lloyd said in attempting to rally support for his preferred town-wide mandate as discussion wound down.

Consensus?

A council consensus appeared to be that, yes, one can assert that people should be free to make their own medical decisions. However, attempting to legislate locally that those decisions could not have workplace consequences, particularly in applying for a job or in a job taken after the Coronavirus and workplace public safeguards mandated at the state or federal levels were in place, may not be within the realm of municipal legal authority.

Even for his fellow council libertarians, Lloyd’s proposal that they collectively take the personal freedom of private-sector employers, including it was specifically noted national companies like UPS, away, seemed a step too far. Consequently, a council majority appears to have put the brakes on their policy-attorney colleague’s most aggressive interpretation of what it means to be a municipal lawmaker and free American in Front Royal, Virginia, circa 2021.

Were he to face a tiebreaking vote, Mayor Holloway made it clear where he stood on the Option 1 ordinance proposal: “Well, I’ll tell you right now, we don’t do it at the store. But if we wanted to do it we’re not going to have the Town saying you can’t. It’s my business, not yours. If they don’t want to work there they can go somewhere else and work,” the mayor reasoned of private-sector employees adhering to company policies.

Shortly after that comment, Holloway asked if there was any support for moving Lloyd’s COVID-specific “Town-wide recommended” Option 1 Ordinance forward. Lloyd’s colleagues responded with collective silence other than Thompson’s “No, not me.”

Pursuit of the amended Option 2, “Town (employee) specific” directive as a Resolution, gained enough support to be taken to a public vote, likely at the June 28 meeting. And council’s stance there seemed in support of Meza’s take on offering town staff options – “Give them all the info, make it as easy as possible to get (vaccinated), but don’t require it.”

See the approximate 20-minute council discussion of the matter beginning at the 37:55 mark of the Town video.