The Dubuque County Board of Supervisors on Monday morning considered a countywide shelter-in-place order, but the county attorney issued an opinion on Monday night saying the board did not have the authority to issue such a directive.
In the wake of that opinion, two of three supervisors told the Telegraph Herald that they will not support the measure when it comes up for discussion again on Wednesday, April 8.
County Attorney C.J. May III’s opinion falls in line with that of Iowa’s governor and attorney general regarding the COVID-19 pandemic.
“While it is certainly appropriate to place the safety and health of the citizens of Dubuque County as the highest priority of the board, it would not be good governance to pass a resolution or ordinance which is not based in law,” May wrote in an email to county officials obtained by the Telegraph Herald.
May could not be reached by the TH for comment earlier in the day.
May also wrote, “An enacted Stay in Place order by you would, in my opinion, be subject to time-consuming and expensive legal challenge and may very well expose the county to liability for damages incurred by the private sector caused by their cease in operations.”
THE LOCAL PROPOSAL
Supervisor Jay Wickham composed the draft order, which was added to the agenda for the Monday meeting late on Sunday night.
If approved Monday, it would have run from 11:59 p.m. today to April 30.
“Whereas, further restriction of movement of persons is necessary to reduce the substantial risk of harm to the public and, therefore, as long as this resolution is in effect, all individuals in Dubuque County are required to shelter in place, except to perform certain essential activities or to perform work in or obtain services from an essential activity,” it stated.
The order would have required that all non-essential businesses close, though businesses could have continued to operate with employees working from home.
The draft listed more than 15 categories of essential businesses, including health care facilities, grocery stores, pharmacies, gas stations, day care centers, banks and credit unions, auto repair shops and auto dealerships, and veterinary clinics and pet stores.
Travel by county residents would have been prohibited, “except for purposes of essential travel, performing essential activities or going to work in an essential business, government facility or critical infrastructure.”
The order also would have prohibited “all public and private gatherings of any number of people occurring outside a single household or dwelling unit.”
The draft order stated that pursuant to state code, violators could be charged with a simple misdemeanor, a conviction for which is “punishable by a fine of up to $500 and up to 30 days in jail.
LOCAL REACTION, LEGAL STANDING
During Monday morning’s meeting, Supervisor Dave Baker seemed supportive of issuing an order, though he took issue with the list of essential businesses in the draft. He said he planned to bring a longer list, which specifically included the media, to Wednesday’s meeting for consideration.
Baker said the community is behind a shelter-in-place order.
“The number of communications I’m getting to move forward with this greatly outweighs those against,” he said.
Meanwhile, Supervisor Ann McDonough said during that meeting that the board would be more successful in working with Reynolds rather than “badgering” her.
“I would want to find a way to help the governor get out of the box she’s in with her metrics and whether people are meeting criteria,” she said.
She also referenced the opinion by Iowa Attorney General Tom Miller, who wrote that the governor would need to delegate to cities and counties the authority to issue such an order.
Reynolds has expressly not done so.
Wickham, though, said during that meeting that he had little hope of help from the state or federal governments.
“If we’re waiting for somebody in Des Moines or Washington, D.C., to save us, we are mistaken,” he said.
Just after 6 p.m. Monday, May emailed his opinion to the supervisors. He agreed with Miller’s opinion.
May also wrote that while the Dubuque County Board of Health could legally order the quarantine of individuals or groups “with a suspected active quarantinable disease,” as well as “any ‘contacts to the case,’” that board could not do so countywide.
May’s opinion settled the question for Baker.
“With C.J.’s opinion, as far as I’m concerned, it’s dead,” Baker said Monday night. “It was good to have the discussion, even if just to emphasize the need for people to isolate. As I’ve said many times, you’re not stuck at home — you’re safe at home.”
But Baker said he would most likely leave the item on the agenda for Wednesday’s meeting.
“It’s only fair to leave it on the agenda, have the discussion, review C.J.’s letter and move on,” he said.
McDonough said she, too, felt that May’s opinion settled the issue.
“From my perspective, without legal authority, I’m not going to take this action,” she said. “That’s been my opinion all along — we should only act in our authority. I still agree with the shelter-in-place concept. I so agree that I wish we could take stronger action. But I don’t think the board has that power.”
Wickham, though, said he still believes it is the board’s duty to go further.
“I think it’s important to that public officials use all the tools they have to keep people safe and stop the spread of the coronavirus,” he said. “We haven’t done that. Neither has the governor. Neither has the city (of Dubuque).”
He said the board should be following the lead of the medical community over those with any other backgrounds.