Health officers have vast powers in pandemic

GRANT COUNTY — Washington state law is clear that health officers, such as Grant and Adams counties’ Alexander Brzezny, have vast powers to respond to pandemics like the COVID-19 outbreak. And that includes the June 24 order from state Secretary of Health John Wiesman requiring every person in Washington to “wear a face covering that covers their nose and mouth when in any indoor or outdoor public setting.”

Hugh Spitzer, a law professor at the University of Washington who specializes in state and local government, said that it is known as “the police power.”

“States have very broad natural police powers. There’s no grant of police power; it’s just assumed, and courts have treated it as if it’s just there,” Spitzer said.

While states have broad powers, Spitzer said they have to grant power to counties and cities. Under Article 11, Section 11 of the Washington state Constitution, a county, a city or a town has the ability to “make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.”

Wiesman also cited several sections of Washington law, including Chapter 70 of the Revised Code of Washington, that give local health officers the authority to control and prevent the spread of “contagious, dangerous or infectious diseases” or “take such measures as he or she deems necessary in order to promote the public health.”

Another section of state law — Chapter 43, which outlines the power of the governor and the executive branch — gives Wiesman the powers of a local health officer in emergencies when “the safety of the public health demands it.”

These powers have been tested by courts for more than 100 years, with federal and state judges generally deferring broadly to local police power.

For example, in 1905, the U.S. Supreme Court ruled in Jacobson v. Massachusetts that Massachusetts’ compulsory smallpox vaccination program was constitutional, though local governments exercising police powers in pursuit of public health must show “necessity, reasonable means, proportionality and harm avoidance” in order to maintain constitutional rights, according to a review of the case by Georgetown University law professor Lawrence Gostin in a 2005 issue of the American Journal of Public Health.

In 1992, the Washington state Supreme Court ruled in Spokane County Health District v. Brockett that the Spokane Health District’s needle exchange program designed to address the spread of the HIV virus was legal despite violating state anti-drug laws because “of the broad powers given local health boards and officers,” which authorized the program, according to the court ruling.

As health officer, Brzezny has been tasked by state officials with deciding when the county is ready to apply to reopen some of its economy after the pandemic closures, or to close again if the virus grows out of control.

Though state officials have an oversight role over Brzezny and other health officers and can override their decisions, so too does the county’s board of health. The board of health is a nine-member group made up of elected and appointed officials, including the three county commissioners and six regional members.

Responding to criticism that the county was being too cautious in reopening, board chairman and Warden Mayor Tony Massa said that Brzezny was doing his best to meet the state’s requirements and to move the county forward.

“I can tell you that Dr. Brzezny wants to get the county open as soon as he can,” Massa said.

As the state began broadening its requirements to move into Phase 2 of a four-phase reopening plan, the county had a fleeting opportunity to apply before its new cases surpassed what was allowed, Massa noted.

“Had we applied one day later, our numbers wouldn’t have gotten us into stage two,” Massa said in an interview. “We literally had about a 24-hour window, and Dr. Brzezny was supportive about getting us into stage two. I’m sure if it comes to where we can hit that one-day window to get into stage three, we’ll do that again.”

Massa declined to comment further about his thoughts about the requirements that the state had asked counties to adhere to, only emphasizing the work that Brzezny and staff have been doing not only to suppress the virus, but to reopen businesses.

“I think sometimes there’s a misjudgment that that wasn’t the case,” Massa said. “What I can say, is that he and all the health district staff have been busting their buns on this thing, trying to do everything they can and burning the candle at both ends,” he said.

As the total number of cases in Grant County grows, both Massa and Mark Wanke, health board vice chairman and member of the Ephrata City Council, urged residents to wear masks to slow the spread of the virus and get the restrictions lifted.

However, they agreed that when Brzezny issued an order in late May for residents to wear masks, it was a preferable decision to not make noncompliance a misdemeanor, as the state Secretary of Health did last week.

“Who’s going to enforce it?” Wanke said. “Is it going to be the local police? The local sheriff? You’ve got the bigger picture out there. Do they give up what they’re trying to enforce to go after the small ones?”

Gov. Jay Inslee and local law enforcement agencies have emphasized that the order will largely be used to educate the public, and that penalties for noncompliance won’t be vigorously enforced.

Though he expressed concerns with the governor’s decisions, Wanke said that it also concerned him to see the response to the pandemic splitting along political lines. To get out ahead of the virus again, he said officials and the public need to work together.

“You’ve got one group trying to do one thing, another group trying to do another, and it’s an election year,” Wanke said. “But we’ve got a job to do, and we’re trying to do what we can.”