Here & Now

Challenges with Local Health Orders Regarding COVID-19

Frederica Freyberg:

Since Wisconsin’s “safer at home” order was challenged by Republicans and struck down by the state Supreme Court, local health orders were to have been the replacement. But one county executive says that’s not working. Winnebago County Executive Mark Harris said, “We’ve run into significant opposition from the local Chamber of Commerce, a conservative Assemblyman, WMC, the local Republican Party and community members that don’t believe the health officers should have any enforcement powers.” Mark Harris joins us this week and thanks very much for being here.

Mark Harris:

Thanks for having me on, Frederica.

Frederica Freyberg:

So you have seen how Dane County has imposed and Milwaukee County is looking at imposing mandates on mask wearing, in addition to other distancing and capacity orders. Would you like to be able to impose those same kinds of health orders in your county?

Mark Harris:

We have no pressing need to do any sort of order at this point in time. But what we discovered is that our code won’t support enforcement of any order. So you’ve got this situation where the state Legislature, through the Senate leader, Mr. Fitzgerald, is saying we will not take any action with regard to COVID-19. We’ll rely on the local health officers. But nearly all the counties have health officers who clearly have the authority to give health orders, but that don’t have language in their county codes to be able to enforce them. So we can’t — we can’t make any order enforceable.

Frederica Freyberg:

Why aren’t those orders in your codes?

Mark Harris:

I suspect all the counties had model codes and only the very largest counties drafted their own from scratch. So I believe nearly every county has the same defect in their code. And all we wanted to do is by resolution add language out of state statute 252.03. We want to pull language out of there that’s been out there for decades and put that in our county code. And we ran into stiff opposition from people that view any authority in a health officer as some sort of encroachment on their freedoms.

Frederica Freyberg:

And yet isn’t that exactly what was envisioned following the state Supreme Court ruling?

Mark Harris:

That seems to be what they had in mind. I mean, the Legislature and the governor could have come together and reached some sort of compromise. And in fact, the Legislature initially asked for six days to put something in the “stay at home” orders place. And Judge Roggensack, in a dissent to her own majority opinion, said that they should have given a six-day transition period. And that’s when our county discovered — we tried to put that six-day period in to allow them to work together and to substitute something for the “stay at home” order and that’s when we discovered we didn’t have enforcement powers. So we had to withdraw that the very next day that we issued it.

Frederica Freyberg:

What are your concerns about the point at which you might need those kind of orders?

Mark Harris:

Well, to get something through a county board and have it added to our code, it’s a lengthy process. And if we wait until some action has to be taken urgently, it’s not going to be there on time. And the type of action that I think might occur here, there might be need for a surgical order. There might be a tattoo parlor where one of the tattoo artist is infected and they’re not responding to our advice to them to not allow that artist to work. Well, that’s a case where our health director could issue an order that would be enforceable and we could shut them down or force that artist not to operate. And that’s just one example, a hypothetical. But the way it is now, we can suggest that they not let that artist operate, but we really can’t stop them.

Frederica Freyberg:

What about the argument, though, on the part of people who might be offering some of this pushback that they have concerns over, “shuttering the economy,” as Senator Fitzgerald said about these kinds of public health orders?

Mark Harris:

Definitely there’s a tradeoff between rules that protect health and rules that impact the economy. And, quite frankly, I would advise against any additional general shutdown unless the situation became absolutely horrific.

Frederica Freyberg:

Is the Wisconsin Counties Association able to offer any kind of guidance or help in this? Because presumably you’re not the only county that is experiencing this.

Mark Harris:

They’re actually talking about issuing some guidelines, perhaps some model language, but they’re going through a committee process, trying to reach that. And they suggested that they won’t actually have language that you can just adopt. They’re going to have some guidelines to help you develop your own. That could take a long time. And it would probably still raise the same type of opposition. Basically, our critics are telling us they don’t want our health officer to have any authority to enforce an order.

Frederica Freyberg:

So, there won’t be. I mean, is there any — do you have any remedy?

Mark Harris:

Well, the board could choose to go ahead and adopt the necessary code language for the county over this active objection. And I believe this is just a subgroup within the total county. I suspect there’s a large body of people on the other side as well. But it’s very hard for a county board to make a decision if one side is very vocal and very prominent. And they’re kind of — they’ve kind of been ginned up by some of the players. I know a lot of the people were told that we can invade their home and that we could take their children out of their home if they have the sniffles. Those exact words have been repeated to me numerous times. Well, the language that was drafted had a reference in it and that reference talked about either having to have permission to enter the home or having to have an inspection warrant issued by a court. But, of course, people, lay people reading it, just read over those references.

Frederica Freyberg:

Well, Mr. Harris, we wish you well as you try to work this out. And we also hope that your numbers will flatten out. Mark Harris, County Executive, Winnebago County, thanks very much.

Mark Harris:

Thank you.