March 3, 2021 at 4:20 p.m.
The never-ending emergency (powers)
The never-ending emergency (powers)
One is the actual world in which we all live. The other is the world in which politicians, bureaucrats, and other elites want us all to live.
In the latter world, these people are all-knowing and all-powerful. They simply cannot conceive that anyone would even want to live in any other world besides the one they create for us. And, so, when presented with an opportunity, they grab as much power as they can.
Then they try to keep it.
We certainly see it on the national level. Exhibit A is Dr. Anthony Fauci, who not only admits moving goalposts for when normal life can resume but is proud of it.
Never mind that we have several vaccines, and, increasingly, mainstream scientists are predicting herd immunity by the summer. But Fauci said last week the truth was far different.
"There are things, even if you're vaccinated, that you're not going to be able to do in society," Fauci said a during White House press briefing. "For example, indoor dining, theaters, places where people congregate. That's because of the safety of society."
So, let's see, we have to stay locked down just like we did before the vaccines, even though cases are falling through the floorboards. Well, then, if that's true, it sounds to us like the vaccines don't work very well. But shush, don't tell anybody.
More likely, though, it sounds to us like Mr. Fauci just doesn't want the pandemic to end, when he will finally melt away into the bureaucrasphere, no longer a virulent hyperagent of doom and gloom.
Here in Oneida County, the emergency is still a big big deal, too, requiring emergency action. And so county board chairman Dave Hintz used his emergency powers recently to bypass the full county board and authorize increased staffing hours (and health insurance for two employees) to make sure the county's mass vaccination center is up and running, and, by gosh, to help keep it up and running.
Now before readers reach for their handy letters-to-the-editor pens, let us hasten to add that we are not necessarily opposed to the higher staffing levels. The problem is not public health director Linda Conlon's request, it's the way the request was made and approved, using Mr. Hintz's so-called emergency powers.
Let's take a look at how all this transpired.
At the county board meeting on Feb. 16, and in a memo sent to board supervisors prior to the meeting, Mr. Hintz explained he was using his emergency powers to take actions that, essentially, are deemed immediately necessary, i.e, they can't wait for the board meeting.
The increased staffing levels were just like the courthouse furnace breaking down in the dead of winter, Mr. Hintz said - it couldn't wait.
But he said he was doing his due diligence by informing the board, as the county code required him to do: "Any such decision on the part of the chair or designee shall be reduced to writing and a copy mailed or delivered to all county board members and a copy of all decisions placed on each county board member's desk at the next immediate board meeting for consideration."
Hintz certainly did that, and, when he was asked if he needed board approval and a vote, he said, nope, he sure didn't. He was letting supervisors know what he was doing in this "emergency" and that was that.
But wait! What about those two pesky words at the end of the sentence above from the county code - that all such emergency decisions would be placed on each supervisors' desk at the next immediate meeting "for consideration."
Doesn't "for consideration" mean the board needed to approve Mr. Hintz's emergency actions? Mr. Hintz says not, that in his opinion the consideration requirement was met by placing the topic on the agenda, providing details of the request, and having discussion.
We disagree strongly.
For one thing, to allow an executive to take action that can never be challenged by the subject legislative body was, at least until this pandemic, unheard of in America. In Wisconsin, where state executive power is also being challenged, the statutes provide the Legislature can end a governor's declared state of emergency, and the state Supreme Court has ruled state officials cannot operate without legislative oversight and approval.
According to the National Conference of State Legislatures, though governors need to be able to respond to emergencies quickly, "legislatures have an important role in making sure these powers are not abused and that they do not undermine the separation of powers vital to our democratic system of government."
One of the ways they do that is to nullify an emergency proclamation by a resolution.
This is as true on the county level as on the state level. Mr. Hintz has assumed a broad power, without even a declared state of emergency, to raise wages and award health benefits on the basis of an emergency he alone decides exists, and, in his view, the elected board of this county can do nothing to nullify his actions, even if they deem those actions to be unwarranted or believe no emergency exists.
Executive power that cannot be checked, that cannot be balanced, by the legislative body is a dictatorship by any other name. In a democracy, executive power cannot be so unlimited.
What's more, a close reading of the ordinance makes clear the intent is to have the board ratify or nullify the emergency action at the next immediate board meeting. That's what the words "for consideration" mean.
Using Hintz's interpretation, the words would not be needed at all, and the sentence could end after the word "meeting": "... a copy of all decisions placed on each county board member's desk at the next immediate board meeting."
In Hintz's interpretation, the words become what is known as statutory surplusage; they would be redundant and irrelevant. In legal terms, the rule against surplusage requires courts to give each word and clause of a statute operative effect, meaning those words should be interpreted in a way that would not render them superfluous but functional.
To be sure, Hintz could argue "for consideration" means "for discussion," which the rest of the ordinance provision does not contemplate, and he could assert that discussion is itself operative.
True, but a look at the dictionary definition rules out that the two words are interchangeable. Discussion means dialogue or conversation. It presupposes no action. But "consideration" does presuppose action.
According to Webster's, "consideration" is "to think of, especially with regard to taking some action." Likewise, dictionary.com defines "consider" as "to think carefully about (something), typically before making a decision."
Clearly the intent of the ordinance is not merely to discuss the emergency action but also to take action, to ratify or nullify it. Such usurpation of democratic power and oversight as Mr. Hintz has done in the name of emergencies cannot be allowed to stand.
All of which begs the question: What was the emergency? Conlon made her staffing request on Feb. 10, just six days before the county board met. We all deserve to know why the staffing adjustment could not have been made by the full county board, rather than by a chairman who claims the full board has no power to overturn his decision.
This is very worrisome, not least because, at the county board, it was asserted that an approval process needed for time-critical pandemic items had come up at the last Board of Health meeting, "per Hintz," and in his statement to The Times this week, Mr. Hintz also said the "Board of Health Committee recognized the need for an expedited procedure for approving time critical pandemic related items."
Stunningly, none of that appears on the February board of health's meeting agenda or in the minutes of the meeting, or, for that matter, on the January agenda or in the January minutes.
Nowhere in the minutes is it mentioned understaffing was a real problem of emergency proportions. Nowhere is there mentioned the need for an expedited procedure for approving time critical pandemic related items.
According to the minutes, it's all very routine.
Now we're not saying such a discussion did not happen. Minutes sometimes leave things out, and oftentimes are sloppily composed. More concerning is the urgent staffing needs or the need for a time-critical expedited procedure were not on the agenda so the public would be properly noticed of the dire need to bypass the county board.
The public has a right to know what the urgent needs of the department are, and to listen in and weigh in on any discussion about emergency procedures.
But was there time for that? After all, it was a so-called emergency. Still, the answer is yes, given the timeline in this case. Ms. Conlon made her request to Mr. Hintz on Feb. 10, just one day after the board of health meeting on Feb. 9. Are we really to believe that this urgency simply cropped up overnight? Had the health department not been planning for vaccinations before that 24-hour period?
Mr. Hintz says supervisor Billy Fried developed the process. Did he learn of the emergency and develop the procedure all in the afternoon and overnight following the board of health meeting?
What we have is an emergency procedure and an emergency request that bypasses the elected board of supervisors being put in place just 24 hours after the board of health meeting came and went, with no discussion of staffing problems or of an impending emergency procedure on the meeting agenda.
What we have is that procedure, that request, and its approval unloaded on the county board by fiat, with the declaration that elected supervisors could not reverse it.
Even more concerning, at the county board meeting, Mr. Hintz said the procedure might well be used again. Who knows, but we'll let you know, even though you won't have a say in it, was the message.
To be sure, outgoing corporation counsel Brian Desmond assured supervisors Mr. Hintz's emergency powers were limited and he could only act with respect to "personnel, services, and programs," but let's think about that. What's left in the county after you subtract personnel, equipment, and services?
Not much, if anything.
Two final points. The first is, this is the latest example of using the so-called pandemic "emergency" to implement undemocratic rule and control over the the people. It's happened on the state level, and it's happening on the local level.
The county board needs to rein Mr. Hintz and Ms. Conlon quickly in, and to craft an explicit ordinance amendment that, one, defines narrowly what an emergency is; two, more clearly defines the chairperson's emergency powers and its limits; and, three, provides explicitly for legislative oversight and approval or non-approval as soon as possible after such emergency actions are taken.
The second point concerns what is going on at the health department. On the county board floor, Mr. Hintz made sure to laud the wonderful work of Ms. Conlon and her team.
We might agree, or not, if we only knew what he knew. But we do not. We cannot judge the performance of the health department because we still have not received, after almost a year, all of the public documents we requested that would provide an inside look into its work. We cannot judge performance because discussion of the health director's goals are conducted in closed session.
We cannot judge the health department's performance because staffing decisions and other internal matters of supposedly urgent need do not appear on a board of health agenda and are imposed by the county chairman by fiat.
We are told time and again it's a new day in Oneida County, but time and again the same anti-democratic and secretive impulses control behavior. Perhaps they mean that new day will come when the "emergency" ends.
That's convenient because it's beginning to look like that day will never come, and the new reality is an eternal emergency, the bureaucrasphere spreading everywhere, like a lethal virus, killing hopes and dreams and freedom itself.
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