WTC Commentary on HB0127 Public health amendments

Before our commentary we need to point a few things out. First, after April 7 morning’s conference committee (assigned to negotiate the bill because it failed House concurrence), both the House and the Senate approved the negotiated version of the bill and it is now House Enrolled Act No. 93. Last action on the bill will be up to the governor: He can sign the bill; allow the bill to become law without his signature; or veto the bill. We have no prediction of what Governor Gordon will do. (Update: Governor Gordon allowed the bill to become law without his signature.)

Secondly, the bill states that it will not apply to any existing public health orders (state, municipal, county or district) that were issued before the effective date of the act, which is July 1, 2021. In other words, this bill will not affect us now in our current situation under the existing emergency and public health orders that remain in place.

Thirdly, for the purposes of this commentary, it is important keep in mind that the general power of the Wyoming Department of Health to isolate and quarantine comes from:

W.S. §35-1-240. Powers and duties.
(a)(iii)To establish, maintain and enforce isolation and quarantine, and in pursuance thereof, and for such purpose only, to exercise such physical control over property and over the persons of the people within this state as the state health officer may find necessary for the protection of the public health.

This commentary is organized into four parts:

Part 1: Governor Gordon’s Executive Order 2020 – 2
Part 2: Pages one through two of HB0127/HEA93
Part 3: Page three of HB0127/HEA93
Part 4: Pages three to four of HB0127/HEA93

Part 1: Page two of Governor Gordon’s Executive Order 2020 – 2

Before delving into HB0127/HEA93, we need to step back in time and look at what statutory authority the governor called upon for the WY Department of Health (WDH) when he declared a state of emergency and a public health emergency for the state of Wyoming. The seventeen statutory references Gordon lists are in item 3, on page 2 of his March 13, 2020 Executive Order 2020-2:

Each statute referenced for the WDH in the Executive Order falls under Title 35 – Public Health and Safety. All of these can be read in detail at Wyoming Statutes.

The first two statutes are in Chapter 1 – Administration; and Article 2 -the Department of Health.

35-1-240 lists the powers and duties of the WY Dept. of Health. HB0127/HEA93 creates a new subsection in this article.

35-1-227 is not mentioned in HB0127/HEA93, but is quite pertinent to the bill:

35-1-227. Supervision of county health officers.
The county health officers of this state shall be under the direction and supervision of the state department of health, and the state department of health shall have authority to make such rules and regulations for the government and direction of said county health officers as in their judgment may be best suited to maintain the public health.

The next fifteen statutes, 35-4-101 through 115, are in Chapter 4 – Health Regulations Generally; and Article 1 – Communicable Diseases:

Headings of sections 101 through 115 are:

35-4-101. Department of health to prescribe rules and regulations; penalty for violation; resisting or interfering with enforcement.
35-4-102. Liability of county for medical services; indigent patients.
35-4-103. Investigation of diseases; quarantine; regulation of travel; employment of police officers to enforce quarantine; report of county health officer; supplies and expenses.
35-4-104. Quarantine regulations generally; modification or abrogation.
35-4-105. Escape from quarantine deemed crime; punishment.
35-4-106. Vaccination for smallpox; penalty for refusal.
35-4-107. Report required of physician; record of each case to be kept; duty of individuals to report diseases.
35-4-108. Penalty for failure to report or for false report.
35-4-109. Spreading contagious disease; prohibited.
35-4-110. Spreading contagious disease; liability for damages in civil action.
35-4-111. Reporting of Reye’s Syndrome.
35-4-112. Right of appeal of quarantine.
35-4-113. Treatment when consent is not available; quarantine.
35-4-114. Immunity from liability.
35-4-115. Definitions.

Part 2: Pages one through two of HB0127/HEA93

The first two pages of the bill create new law under Title 35 – Public Health and Safety; Chapter 1 – Administration; and Article 3 – County, Municipal and District Health Departments:

35-1-310 Limitation on orders.

(a) No public health order requested or issued by a county, municipal or district health officer under this article shall become effective without notice being provided to the public not less than forty-eight (48) hours before the order is to become effective and an opportunity to provide public comment through written and electronic submissions is provided, except when the delay will result in immediate and life threatening physical harm, exposure or transmission beyond the existing affected area. Any order issued under this chapter by a county, municipal or district health officer that restricts individuals’ movements or their ability to engage in any activity, that applies to individuals not under an isolation or quarantine order and that is designed to prevent or limit the transmission of a contagious or possibly contagious disease shall be effective for a period of not more than ten (10) days. Subsequent orders, including order extensions, for the same or substantially same purpose of any duration shall only be issued as follows:

(i) The board of county commissioners, by a vote of the majority of the board, may issue an order subsequent to an order issued by a county health officer;

(ii) The governing body of a municipality, by a vote of the majority of the governing body, may issue an

order subsequent to an order issued by a municipal health officer;

(iii) The governing body of a political subdivision that is a member of a health district or a district health department, by a majority vote of the governing body, may issue an order subsequent to an order issued by a district health officer to have effect within the governing body’s political subdivision only.

(b) Nothing in this chapter shall be construed to limit a parent or guardian’s right to the care, custody and

control of a minor child under the care of the parent or guardian.

of a vulnerable adult.

(d) As used in this section:

(i) “Caregiver” means a family member responsible, or a person with court ordered responsibility, for the care, custody and control of a vulnerable adult;

(ii) “Vulnerable adult” means as defined in W.S. 35-20-102(a)(xviii).

Our initial reaction to this newly created 35-1-310 was glad relief because:

It appears to only allow local (county, municipal or district) health officials the authority to issue one order for a ten day maximum, that restricts the movement of non-sick people,
With a mandatory 48 hour public notice ahead of time with an opportunity for public comments (written or virtual), except when the delay will result in immediate and life threatening physical harm, exposure or transmission beyond the existing affected area;
And that any subsequent orders can only be issued by a majority vote of the local elected officials – making the accountability of any such actions much more in-line with our form of representative government.
We were also quite pleased to see that the rights of parents and caretakers are included.

We do see issues however, and we’re uncertain how this will play out in the future. Our first guess is that legislators will come back next session and try to adjust the language.

The main issue is that newly created 35-1-310 Limitation on orders appears to be in direct opposition to existing statutes 35-1-240 Powers and duties [(a)(iii)] and, most especially, with 35-1-227 Supervision of county health officers. It seems to us that both 35-1-240 and 35-1-227 would’ve had to be amended in order for 35-1-310 to be consistent across WY law. Or, better yet, perhaps 35-1-227 should have been repealed altogether (an action we would support 100%!). As it now stands, newly created 35-1-310 does not appear to be congruent with existing statutes. We do not know what happens when incongruent laws exist on the books – does the older statute(s) take precedence? We at WTC don’t know the answer to that.

This must be fixed before the citizens of this state has to ever suffer through another ‘public health emergency’ – pandemic or otherwise.

It is almost certain that Governor Gordon and WDH would oppose repealing the authority granted in 35-1-227, and also likely they would oppose any amendments that would weaken that authority.

As mentioned initially in this commentary, the power of the Wyoming Department of Health to isolate and quarantine “over the persons of the people within this state” comes from 35-1-240 (a)(iii); but it is 35-1-227 that gives WDH specified authority over county health officers and their orders.

As we all know now, the authority that 35-1-227 gives to WDH has been used wholesale across the state during this ‘pandemic’. Whether it has been state-wide orders carried verbatim into local orders, a local variance on orders, or an exception on local orders- all originate and must be requested from WDH, and require a signature of approval from either the state public health official (Alexia Harrist) or the WDH director (Michael Ceballos). (Here are examples of a variance and an exception – both being issued to Washakie County by WDH and signed by Harrist.)

We firmly believe that all county health departments should be viewed as the local arms of the Wyoming Department of Health until there is sufficient law to properly change that. We don’t believe HB0127/HEA93 reaches that bar.

Newly created 35-1-310 Limitation on orders, can and should be also considered from another perspective: The provisions could be applied locally to create stricter and more narrowly defined public health orders, such as what the county health officer in Teton County had been demanding recommending for the cessation of indoor dining at restaurants and bars, and also what Alexia Harrist signed-off on for the July 2020 Teton County Mask Mandate.

In line with that is a measure that Governor Gordon put forth on page 3 of his April 3, 2020 Statewide Directive for Individuals Arriving in Wyoming from Another State or Country to Quarantine:

This Directive is in effect statewide in Wyoming. In the interest of uniformity of laws and to prevent the spread of disease, all inconsistent County Public Health Orders are preempted by this Directive to the extent the County Public Health Order is less restrictive.

In other words, whatever order is the most restrictive is what the citizens in that locality must follow.

Part 3: Page three of HB0127/HEA93

Most of page 3 amends existing statutes in 9-2-103(e)(intro) and (i), 21-4-309(d)(i) and 35-1-240(a)(intro).

These amendments place (or acknowledge) the appointing power of the state health official properly being with the governor, and remove that power from the director of Wyoming Department of Health (an unelected official).

The amendment in 9-2-103(e)(i) provides that the state health officer serves at both “the pleasure of the director and governor, either of whom may remove the state health officer”.

All these amendments are good and were needed, since:

the governor currently does not have the power to appoint the state health official;
there isn’t current statutory provisions on removal of the state health officer from their appointed office.

Part 4: Pages three to four of HB0127/HEA93

Pages 3 and 4 create a new subsection (c) to 35-1-240. Powers and duties:

(c) Any order issued under this section that restricts individuals’ movements or their ability to engage in any activity, that applies to individuals not under an isolation or quarantine order and that is designed to prevent or limit the transmission of a contagious or possibly contagious disease shall be effective for a period of not more than ten (10) days. Subsequent orders for the same or substantially same purpose shall only be issued by the governor, with consultation provided by the state health officer and shall be in effect for not more than sixty (60) days.

The 10 day restriction of a public health order issued by WDH against the movement of non-sick Wyoming citizens is fantastic.

After that however, we believe our legislators really blew it. In our opinion, all of them failed to recognize that the words “Subsequent orders” at the beginning of the last sentence cancels out the intended limitations that the “sixty (60) days” language at the end of the sentence was meant to provide. While most legislators seemed to genuinely believe that the sixty day language would somehow restrict or prevent government overreach of a heavily extended public health order by our governor, all it seems to actually do is create paperwork every 60 days for an unlimited number of subsequent orders.

The original amendment that introduced the “60 Days” language was sponsored by Senator McKeown, and reads in part; “and shall only be in effect for sixty (60) days unless ratified by the legislature through legislative order, with each house voting separately…”. As we fumed about in our last three posts, certain House members spoke directly against the legislature being constitutionally involved/responsible/accountable to their constituents during public health emergencies and public health orders. When House Rep Wilson happily stripped that McKeown amendment out of the bill during conference negotiations, the “60 days” language was somehow left behind.

In a similar snafu, Senate conference committee members argued to eliminate House language related to the “duration” of public orders and “order extensions” – while some of that language was removed, some remained. Thus, just as the “60 days” language remained, unfortunately the “subsequent orders” language remained as well. We have no doubt that most of those Senate Conference Committee members would not have agreed to the negotiation if they realized this would be the end result.

The concurrence debates and votes, negotiation and final votes of HB0127 took place on the last two days of session among a flurry of additional unrelated conference committees. (Negotiations on HB173 School finance funding-2 were taking center stage at the time – which ultimately ended at a shocking impasse.) They were running out of time, and many arguments that should’ve taken place for HB0127 did not – such as direct and active House acknowledgment of Article 1, Section 38 of our Wyoming State Constitution for starters.

Much of the confusion in the conference negotiation meetings of what language the House found unacceptable, and what language the House would agree to was strong-armed by Representative Sue Wilson. Wilson was a brick wall to negotiate with, and she hurried the process in the rushed and perturbed manner that seems to be her MO.

Another thing that caused confusion was the accusations made by Speaker Barlow against House members on how they ‘never brought similar amendments or similar discussions up with the other public health order bills’ – that untrue accusation was sleight-of-hand by the Speaker because none of the other public health order bills ever made it to the floor to be discussed at all (see proof here).

In the end it seemed that some legislators felt they had to come away from session with a bill that addressed public health orders, regardless of it’s apparent flaws. And so this is what the citizens of Wyoming are left with.

Last week on the Senate floor Senator McKeown expressed his concern that HB0127 basically codified into law exactly what the governor has already been doing during this entire pandemic. This is why he offered so many amendments to strengthen the bill in our favor – all of which the Senate had approved.

In our opinion, after much of the House and Rep Wilson recoiled from their constitutional duty regarding public health emergencies and then stripped the McKeown amendments from the bill, everything went sideways, and in that chaos we got exactly what Senator Keown had warned about – an act that codified into law exactly what the governor has already been doing during this entire pandemic.

That’s how we see it.

As a parting thought – we feel inclined to mention that some of the arguments evolving in the Wyoming Covid Civil Suit are also focusing on:

Look for upcoming posts on that legal action at our blog page.