Governor Kemp has sole authority over all Georgia Public Health issues.
Later this evening, City of Dunwoody was looking to follow the lead of Atlanta and Savannah as well as other local municipalities to find a way to address the rising cases of COVID-19 by instituting a requirement for face coverings when around other people. I am not a lawyer, but I am a Dunwoody City Councilman entrusted to do what is legally allowed to protect my community. I, like you want this crisis to end, and would like to thank anyone who reached out to me via email or social media to discuss. Just so you know I was ready to mandate that masks be forced inside all Dunwoody commercial businesses and places where you can not social distance along with some reasonable exceptions. Unfortunately, my reading of State Law will not allow me to do that, as the power to mandate change sits solely with Governor Brian Kemp and his advisors. My prayer is that Governor Kemp when dealing with rising infection rates across the board (now includes the young) / raising hospitalizations and dropping State GDP that he, as one man with the sole authority within the State of Georgia to effect change, is doing everything within his power to reduce the spread of this virus.
On March 13, President Trump declared COVID-19 a National Emergency and on March 14th Georgia Governor Brian Kemp declared in an executive order a Statewide Public Health Emergency. In that declaration, it states that cities like Dunwoody shall fully comply with the Governor's orders and that the Georgia Department of Public Health shall establish protocols to control the spread of COVID-19. When I visit the Georgia Department of Public Health website and click the "Protect Yourself - Know the Facts" link it brings me to the CDC COVID-19 prevention page which clearly talks of the benefits of cloth face coverings. Why not mandate the wearing?
Unfortunately, all executive orders made by Governor Kemp fall short of mandating any use of face masks anywhere even though most technical health experts highly recommend it. Our Governor has promoted mask use but he is not mandating it anywhere, therefore, you would think that the City of Dunwoody could easily mandate the use? Unfortunately, I do not believe we (nor local governments including the City of Atlanta, Savannah or any County Government) have the legal authority to do so as I will explain.
Here is the Gov Kemp's Executive Order of March 14th where IT IS ORDERED on Page 3:
That acting pursuant to the Governor's authorization, the Georgia Department of Public Health shall coordinate with the Georgia Emergency Management and Homeland Security Agency to take any action necessary to protect the public's health, including, without limitation:
(1) Planning and executing public health emergency assessments, mitigation, preparedness response, and recovery for the state;
(2) Coordinating public health emergency responses between state and local authorities;
(3) Establishing protocols to control the spread of COVID-19;
(4) Coordinating recove1y operations and mitigation initiatives;
(5) Collaborating with appropriate federal government authorities, elected officials of other states, private organizations, or private sector companies;
(6) Organizing public information activities regarding the state's public health emergency response operations, including educating the public on the prevention of the spread of COVID-19 based on Centers for Disease Control and Prevention's guidelines and the best scientific evidence available;
(7) Providing special identification for public health personnel involved in this Public Health State of Emergency;
(8) For all persons meeting the Centers for Disease Control and Prevention's definition of a Person Under Investigation("PUI"), implementing a program of active monitoring, which may include a risk assessment, within twenty-four (24) hours of learning that the person meets the PUI criteria and twice-daily temperature checks for a period of at least fourteen (14) days or until the PUI tests negative for COVID-19; and
(9) Implementing quarantine, isolation, and other necessary public health interventions consistent with Code Sections 31-12-4 and 38-3-51(i)(2) or as otherwise authorized by law.
IT IS FURTHER ORDERED on Page 3:
That all state and local authorities (City of Dunwoody) as well as public and private hospitals, healthcare facilities, clinics, and medical personnel shall fully comply with orders by the Governor as authorized by Georgia law, in furtherance of this Order.
On April 2nd Governor Kemp took away all county authority to manage health emergencies and quarantine by suspending 36-5-22.1 and then he preempting the cities authority in 36-35-3 & 36-35-6. Cities and counties are preempted by Gov Kemp to enforce any public health measure put in place that differs from Kemp's Emergency Order, nor are Counties or Cities allowed to adopt any ordinance or order with the stated purpose or effect of responding to a public health state of emergency. This is an important point to remember later, only on April 2nd in an Emergency Powers Executive Order did the Gov preempt county and municipal powers and it appears that the same language is not listed again anywhere until June 11th in a non Emergency Powers Executive Order.
Here is the Gov Kemp's Executive Order of April 2nd where IT IS ORDERED on page 8
That pursuant to Code Section 38-3-51, the powers of counties and cities conveyed in Titles 36 and 38, including those specific powers enumerated in Code Sections 36-5-22.1 and 36-35-3 are hereby suspended to the extent of suspending enforcement of any local ordinance or order adopted or issued since March 1, 2020, with the stated purpose or effect of responding to a public health state of emergency, ordering residents to shelter-in-place, ordering a quarantine, or combatting the spread of coronavirus or COVID-19 that in any way conflicts, varies, or differs from the terms of this Order. Enforcement of all such ordinances and orders is hereby suspended and no county or municipality shall adopt any similar ordinance or order while this Order is in effect, except for such ordinances or orders as are designed to enforce compliance with this Order.
On April 8th the Governor renewed the Emergency Powers and specifically named a bunch of executive orders, including the executive order of April 2nd as being renewed until April 30th.
On April 13th the Governor did an executive order allowing masks to be used for emergency purposes as it is actually against the law to generally walk around with a mask - this executive order mentions the April 8th document but not the April 2nd.
On April 30th the Governor renewed the Emergency Powers of March 14th and April 8th but oddly did not mention the Executive Order of April 2nd which specifically takes away the power from cities. Does the omission of the renewal of the April 2nd document in the April 30th executive order, grant the cities back their powers or does the renewal of the April 8th document take that authority for granted? I'm not an attorney but I believe I could argue either perspective but guessing the intention of the Governor based on the latest information was to keep that local prohibition in place.
On June 11th the Governor did a 40-page executive order entitled "EMPOWERING A HEALTHY GEORGIA" which laid out the reopening of the State, gave special rules for restaurants, health clubs, hair salons and on page two, it encourages face coverings.
"That all residents and visitors of the State of Georgia are strongly encouraged to wear face coverings as practicable while outside their homes or place of residence, except when eating, drinking, or exercising outdoors."
The language on the cities is finally back in this document on page 39 of 40 that the requirements specifically mandated in the April 2nd emergency order preempting county and cities from making ordinances different from the Governor are back in place. Based on the June 11th Executive Order, Dunwoody is not allowed to pass an Ordinance to mandate face coverings as that is the domain of the State of Georgia and the City of Dunwoody is required by state law to follow the orders of the Governor.
ORDERED: That pursuant to Executive Order 04.02.20.01 and Code Section 38- 3-51, enforcement of any county or municipal ordinance or order that is more or less restrictive than this Order is hereby suspended.
Note that this June 11 document is not an extension of the Emergency orders but instead a new order and adopting a paragraph in a general executive order taken from an emergency order is odd. I would have expected it in the Emergency orders moving forward but I never see it there, instead, the April 8th document is mentioned.
On June 29th the Governor did two executive orders, an update on the "EMPOWERING A HEALTHY GEORGIA" which still prohibits city action and an extension of the Emergency Powers which dropped the language of the city powers but references the April 8th document.
In a July 6th press release, Gov Kemp stated that he wants to ensure Georgia businesses and the public are abiding by public health guidance in order to keep Georgia healthy and open for business.
Gov Kemp, I know and appreciate the difficult job you are doing but we need you to work with us to ensure we are all doing whatever we can to reduce this virus because the health and well being of the State of Georgia is truly at stake. Thanks
18 comments:
Thank you for this thorough and easy-to-understand explanation. Our confirmed cases continue to skyrocket, 50% of them coming in the last month. We have to do all we can to keep one another safe.
I am sad you will not demonstrate the leadership that the city leaders in Savannah demonstrated. Gov. Kemp cares more about Trump than he cares about the citizens of Dunwoody and Georgia.
Once again Dunwoody citizens are taking issues of national importance and laying them upon our little 'burg like a badly framed picture. The story is about public safety and how the law allows for it to be implemented in Dunwoody.
Don't like the rule of law?
Me neither, but what Councilman Heneghan states conforms to current rules. Want to break the rules? Fine. Get elected on that platform.
Tough, but correct call, sir.
John- Thank you for the thoughtful and thorough analysis.
However, I disagree with your conclusion. The intent of the language from the governor is that cities not enact ordinances that contradict or conflict with his mandate. A mask ordinance would not do that, but would be in line with further protecting public health.
I still think Dunwoody should follow the lead of the City of Atlanta, Brookhaven, Savannah, Athens, Decatur, and the growing list of cities who are passing mask ordinances, even when the governor's office says they are legally unenforceable. Perhaps that would put some more pressure on the governor to enact a mask ordinance in line with over 20 states who have already done so. I thought Dunwoody showed great leadership in issuing a shelter in place order prior to the state issuing one, and should lead again with this issue.
I agree with the previous post. The governor will not take action without outside pressure. Our city needs to take action and take a stand for the protection of our citizens. Kemp needs to understand that it is leadership HERE and not in DC that he needs to respond to. I will write and have written to the governor too but if enough cities speak out he will be more pressured to do something - and even if he does nothing, we will have the necessary regulations in our city.
This is from today's AJC Morning Jolt blog post:
So you know that Gov. Brian Kemp is taking rhetorical aim at Atlanta Mayor Keisha Lance Bottoms for issuing executive orders to require the wearing of masks in her city. Other mayors have done likewise, but Bottoms is the only one the governor has cited by name. On Twitter, Kemp called the action “unenforceable,” but stopped short of threatening legal action.
Lawyers have gotten involved. From the Georgia Recorder:
The Georgia Municipal Association has fielded a few dozen calls from city officials across Georgia since Savannah’s mayor issued Georgia’s first face mask mandate in late June, according to its General Counsel Rusi Patel...
Patel said he advises city officials there is room for interpretation in state laws governing emergency powers, which were written to provide guidance when they need to respond to short-term disasters like hurricanes. Georgia is now past the three-month mark in a statewide response to an unprecedented public health crisis.
“As clearly stated in my executive orders, no local action can be more or less restrictive, and that rule applies statewide,” Kemp argues. The governor has publicly encouraged the wearing of masks when social distancing is impossible.
But officially, on paper, Kemp has been silent on the issue of face coverings, argues House Minority Leader Bob Trammell, D-Luthersville, who is an attorney. That makes all the difference, he said this weekend via Twitter:
Georgia @GovKemp's tweet is merely posturing - both ill-considered as public policy and legally inaccurate. See O.C.G.A Section 38-3-28(a). Governor hasn't done an executive order on masks. City order can't be inconsistent since Governor has done nothing.
2 things.
Common sense.
Personal responsibility.
Gavin Newsom mandated masks in California by executive order on June 18, 2020. What has happened to the number and rate of COVID-19 cases since then? Over the past 14 days, positive cases have increased by 51.2% over the previous 14 days. The positivity of test results over the past 14 days is 7.5%, which indicates (according to WHO and Johns Hopkins) that California is testing the sickest patients and missing milder or asymptomatic cases. Newsom's EO stated "There is scientific evidence to suggest that use of cloth face coverings by the public during a pandemic could help reduce disease transmission. Their primary role is to reduce the release of infectious particles into the air when someone speaks, coughs, or sneezes, including someone who has COVID-19 but feels well. Cloth face coverings are not a substitute for physical distancing, washing hands, and staying home when ill, but they may be helpful when combined with these primary interventions." Have masks been helpful? Have masks reduced disease transmission? What does the evidence plainly indicate? Consider that any number of studies examining this issue (the effectiveness of masks against the spread of influenza-like illnesses) have reached a similar conclusion as this example in the literature: "correct and consistent wearing of masks/respirators may improve their effectiveness. However, this remains a major challenge." And why wouldn't that be the case? Healthcare workers cannot be counted on to properly wear and remove their masks, so explain to me how children will not touch a mask every minute and transfer substances on the mask to their hands? Now, do the same for senior citizens, young adults, and politicians. Or perhaps you have not witnessed Newsom's improper mask usage? Mandating masks is a politician's attempt to be seen as doing something, never mind that the "something" is ineffective and, quite possibly, has the opposite effect.
And we just signed up for Chiefs soccer, which the council has now ruined by effectively preventing practices and home games--even though children have a better chance of dying in a car accident or being struck by lightning than dying from covid19.
How is this about saving lives again? kind of like when the council took the playgrounds away from children, who don't transmit covid and barely ever get it at all??
Sorry but this seems like the City Council passed a feel good ordinance they know can't be enforced. It's kind of a boomer move. If they had any creativity they would have passed a 'Save Betty White!' ordinance that had all of the same 'Whereas' wording that spoke directly about the need to save Betty White, America's greatest actress and National Treasure. And of course the wearing of masks would be mandatory to 'Save Betty White'. The national social media coverage would do far more to prevent the spread of the damn Covid than the non-enforceable pile of words that was passed tonight.
But you city council folks feel better after voting for and passing a big pile of words. Non-enforceable words but still a real nice pile. Good move boomers.
Save Betty White!!
Everything will be OK ... when the mayor and council resign.
Based on my communications, I believe that Chiefs was already taking sufficient precautions, and will continue to do so of course. Just mentioning it because my concerns were addressed.
I hope people are not getting cloth fashion masks, which allow viruses to pass through entirely unabated. Cloth on top of an n95 is probably the minimum that everyone should wear.
If you are wearing an n95 mask, a properly fitted one that actually filters 95% of particulates, you don't need to simultaneously wear a cloth mask (which, depending on the construction of the mask, may allow 97% of particulates to pass through).
the virus is around .1 to .125 microns, which is smaller than what the n95 is rated to stop. It stops 95% of particles .3 micron or larger. To rely on n95 alone is inadequate. To rely on cloth alone is tantamount to doing nothing entirely. The cloth mask is merely for decoration and should be on top of an n95, to minimize transmission to others.
From a USA Today fact check about this very subject:
The N95 filter indeed is physically around the 0.3 micron size. But that doesn’t mean it can only stop particles larger than that. The masks are actually best for particles either larger or smaller than that 0.3 micron threshold.
“N95 have the worst filtration efficiency for particles around 0.3,” Marr said. “If you’re smaller than that those are actually collected even better. It’s counterintuitive because masks do not work like sieving out larger particles. It’s not like pasta in a colander, and small ones don’t get through.”
N95 masks actually have that name because they are 95% efficient at stopping particles in their least efficient particle size range — in this case those around 0.3 microns.
Why do they work better for smaller ones? There are a number of factors at play, but here are two main ones noted by experts:
The first is something called “Brownian motion,” the name given to a physical phenomenon in which particles smaller than 0.3 microns move in an erratic, zig-zagging kind of motion. This motion greatly increases the chance they will be snared by the mask fibers.
Secondly, the N95 mask itself uses electrostatic absorption, meaning particles are drawn to the fiber and trapped, instead of just passing through.
“Although these particles are smaller than the pores, they can be pulled over by the charged fibers and get stuck,” said Professor Jiaxing Huang, a materials scientist at Northwestern University working to develop a new type of medical face mask. “When the charges are dissipated during usage or storage, the capability of stopping virus-sized particles diminishes. This is the main reason of not recommending the reuse of N95 masks.”
Looks like Big H was correct, Gov clearly stated that today in the latest order. AJC states: "Kemp’s executive order — which was set to expire Wednesday evening — still encourages, rather than requires, Georgians to wear masks in public. The governor has called such a requirement “a bridge too far,” and his office has said local mandates are unenforceable."
Dunwoody City Council wasted our city resources by taking the time to debate and pass an ordinance they knew at the time they were doing it could never be enforced.
A direct question to John Heneghan, when will the city officially rescind this ordinance? Looking at today's timing it seems like Gov Kemp renewed his orders after the city sent out their email blast alerting Dunwoody citizen's and businesses of the new mandatory mask requirement. Kemp’s new order is clear that any city or county rules “requiring persons to wear face coverings, masks, face shields” or other kinds of protective equipment in public “are suspended to the extent that they are more restrictive than” the state’s guidelines.
So, what is the city's current liability now that the Gov made it clear that Dunwoody's new ordinance is not enforceable? This needs to be dealt with and clarified immediately before anyone files a lawsuit against the city when anyone tries to enforce the unenforceable.
Hopefully we'll see another email blast early tomorrow informing everyone to ignore the 'mandatory' and rephrase that with 'highly encouraged'.
You'll wait until Hell freezes over if you expect the mayor and council to back off their virtue-signalling ways. You'll also wait at least that long for Jennifer Boettcher to post the governor's response on Nextdoor.
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