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.
What is the
Georgia Safety Promise? It’s a statewide campaign from the Governor’s Office and the Georgia Department of Health that encourages businesses and the public to agree to simple, but critical, measures that will keep Georgians safe from COVID-19, minimize the spread of the virus, and keep Georgia open for business. By working together, we can continue to protect the lives and livelihoods of all Georgians.
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
