COUNTY HOME RULE IN THE AGE OF COVID-19

In 1968, a new local government article to the Pennsylvania Constitution guaranteed the right of all Pennsylvania counties and municipalities to adopt home rule charters and exercise home rule powers. The constitutional change was hailed as a watershed in the history of local government in Pennsylvania.  The basic concept of home rule was straightforward. The power to act in municipal affairs was transferred from state law, as set forth by the General Assembly, to a local charter, adopted and amended by local voters. 

 Change is never easy and in fifty years, only six Pennsylvania counties have adopted home rule as their form of government. In 2002 Washington County voters approved a commission to adopt a proposed Home Rule Charter. Unfortunately, the work went for naught when the referendum to approve the draft charter was defeated in a subsequent election.  For a variety of reasons, including local public health, now is the time to revisit home rule in Washington County.

Washington County was a much different place at the turn of the century when home rule was first considered.  We have now evolved from a rural farming district into one of the unique local areas in the country. An urban bedroom community in the north, with a large industrial park, close to an international airport. A county with a destination entertainment complex at the intersection of two interstate highways, with a casino, race track and discount shopping mall. It is a modern industrial county at the center of the Marcellus Shale fracking industry. All of the above have been economically impacted by the worst public health crisis in our lifetimes.

Clearly, the cookie cutter model for county government, mandated by Harrisburg, does not fit Washington County’s changing profile. Moreover, the public health issues raised by the recent pandemic make it clear that there may be times when the political decisions of future Commonwealth governors or the state legislature do not align with the health and safety of county citizens.

The often expressed argument that home rule is only about officials seeking to raise taxes is not true for Pennsylvania counties that have adopted this form of government. According to a study conducted by Penn State: “the residents of Pennsylvania home rule counties enjoy a greater level of government services yet do not pay higher taxes than the residents of non-home rule counties.” 

What is to be gained by adopting home rule in Washington County? First, the county row offices could be eliminated and replaced by a non-elected, modern, Department of Court Records.  The patronage-driven offices for civil filings (Prothonotary), criminal filings (Clerk of Courts), real estate filings (Recorder of Deeds) and wills and estates (Register of Wills) could be combined into one court-based administrative operation.

The new Department of Court Records would be organized in accordance with best record keeping practices and would save money by eliminating overlapping expenditures in each of the existing smaller operations.    Appropriate audit controls would eliminate fiascoes like the recent unexplained missing large deposits in the Clerk of Court’s office.

Second, Washington County could replace the elected office of Coroner with an appointed Medical Examiner who would be an experienced pathologist. At a minimum, Medical Examiners have completed an anatomic pathology residency and a forensic pathology fellowship.

Third, a county home rule charter would provide the opportunity to replace the three-commissioner system authorized by state law with a single elected chief executive.  Under this model, adopted by Allegheny County and others, a county-wide council would also be elected to work with the executive in conducting county business.  The executive would be a single voice and the council would reflect the very different needs and priorities of Washington County’s diverse communities.

When our forefathers considered how to organize the federal executive branch in the Constitution, Alexander Hamilton carried the day in Federalist No.70 “The Executive Department Further Considered.”  He wrote: “Energy arises from the proceedings of a single person characterized by decision, activity, secrecy and dispatch, while safety arises from the unitary executive’s unconcealed accountability to the people.”  One executive is far superior to a three-headed commissioner system where finger pointing and blame shifting is encouraged by the form of government.

 Home rule would make Washington County less dependent on state government in other respects. We would have greater control in addressing:  a) economic development needs; b) the demands on county government for local services; and c) such control would permit rapid response to address unique problems without waiting for Harrisburg to take action, including public health issues like the pandemic.

When considering public health it would be important to frame the home rule provisions to permit Washington County to only take actions more restrictive than state procedures.  This would guarantee no interference with state efforts to control public health emergencies by region as warranted by the course of the disease.  Importantly, it would permit county officials to recognize “hot spots” detrimental to public health within the county and to postpone the lifting of controls.  County officials are best positioned to make informed decisions with our local public health and emergency management teams.

The Pennsylvania counties that have adopted home rule have taken local control of their futures.  It is time for Washington County to join them for the governmental, financial and public health benefits it would provide.

INDIVIDUAL FREEDOM AND PUBLIC HEALTH

Opening up state economies is proving to be more problematic and politically charged than shutting them down and staying in place. This fact has fostered a lively debate over the role of government directed public health in a democracy.

There are those who are now calling for opening up the economy at any cost. These protestors will be a political force until a vaccine finally eradicates the virus.  There are bound to be reoccurring hot spots and new breakouts of disease that will compel policy makers to revert to staying at home.  Each time this happens, angry armchair libertarians will cherry pick quotes from the Bill of Rights and call for citizens to rise up and take back their foundational freedoms.

It is wrong to frame this debate in terms of freedom versus tyranny or right to work versus right to stay healthy.  In our constitutional republic, we elect officials to represent us as decision makers.  These officials are faced with the most difficult and important decisions of their careers. They must listen to expert advice on complex scientific, economic and social challenges and make commitments to resolve the problem. 

On the extreme libertarian side of the debate, populist government by public whim, in the midst of a crisis, is a dangerous fantasy.  The recent writings and speech of some partisan Republicans, standing on individual liberties to the exclusion of all else, remind me of the pamphleteers supporting the Committee on Public Safety during the later stages of the French Revolution. In my example the populists prevailed and the Reign of Terror saw democracy crumble as the revolution devoured itself under the guillotine.

Unlike the French experiment, the remarkable and elastic principles of American democracy were formulated to curtail both totalitarian and populist influences. Madison and the Federalist state builders generated a great deal of dissent in transitioning American society from the Articles of Confederation to the Constitution. Several states refused to ratify the new document without a Bill of Rights. The Federalists finally agreed to include these individual freedoms to “conciliate the minds of the people” even though Hamilton considered the Bill of Rights “an excess of liberty.”

In return for their compromise the Federalists achieved what they wanted, a central state with the power to tax, raise an army, print money and set trade policy.  However, the American experiment would still not have succeeded without a “nation of joiners” in which our citizens demanded that they be involved in shaping the power of the central government as circumstances changed over time.

Today the central government is much stronger in terms of conflict resolution, regulation, a social safety net, provision of public services and as we have witnessed in recent months, public health. The concept of individual freedoms is also stronger, as constitutional law on liberty has evolved along with the increase in central power.

The recent political treatise, The Narrow Corridor, States, Society and the Fate of Liberty by Daron Acemoglu and James A. Robinson is instructive on this issue. The book’s premise, after examining political systems throughout history, is that democracy is a delicate and fragile outcome.  It requires both a strong state and individual liberty in a strong society.  It can only endure when the two remain in perfect balance, on either side of the narrow corridor that exists between them.  The default political condition when the narrow corridor is breached becomes either despotism if the central state wins out or anarchy if the state is defeated.

The ongoing tension between the government and the individual has known no greater conflict than in the field of public health. Increased knowledge of how to prevent infectious disease brought with it the question of when to restrict human behavior to prevent harm to individuals and others.

A  Massachusetts smallpox epidemic in 1901 gave us legal precedent on the question of the state’s compulsory vaccination law.  The United States Supreme Court in the case of Jacobson v. Commonwealth of Massachusetts established the government’s right to use its “police powers” in order to control epidemic disease. The Court affirmed the right of the people through their elected representatives to enact “health laws of every description to protect the common good.”

Since this important legal decision 100 years ago, the individual liberty versus public health debate has taken two paths. The government wins on  issues that present grave societal threats such as infectious disease. Individual liberty wins out on less serious paternalistic measures that inhibit personal freedom such as tobacco use and the regulation of motorcycle helmets.

In the final analysis, the view that public health policy during this crisis is a threat to individual freedoms guaranteed by the Bill of Rights is a false premise. Most Americans agree that public health is the road map and not the enemy of getting people back to work.

 Look behind the curtain of the angry protestors and you will find a Trump MAGA hat with a political axe to grind, an anti-vaccination group looking for a platform, or a shut-in watching too much Fox News.

THE IMPORTANCE OF KNOWING WHAT WE DO NOT KNOW

Many of us are looking for a path forward in our political leadership, work lives and long-term health.  We are in the middle of a highly charged partisan presidential election year, which just happens to be occurring during the worst economic and medical disaster in over a hundred years.

Anyone in authority who admits to knowing what they do not know, about the economy, the presidential election or the pandemic has been a breath of honesty and fresh air.  Conversely, elected leaders, scientists and journalists who have insisted on knowing all the answers to unknowable solutions and results are guilty of malpractice against the American people. These individuals do not deserve our attention or support going forward. 

The one trait that will define the winners of 2020 will be those with the ability to know that a certain result was unable to be determined with any precision. Once each economist, investors, scientist and politician   stopped dealing with certainty and began concentrating on what they knew they did not know it was a manageable task to apply what they did know to the pandemic and to maximize the best outcome.

Those investors who knew what they did not know prudently diversified their portfolios before the bottom fell out of the economy and kept a cash reserve. No one was prescient enough to predict a pandemic. However, those who viewed the economy as a “shoots and ladders game”, with a long struggle up the ladder followed by an unpredictable sharp fall to the bottom, were more prepared for the economic collapse.

Presidential politics is an excellent topic to consider the importance of knowing what we do not know. The worst economic and medical crisis in our history will dominate the election.  Those who are confidently predicting the outcome are wasting our time.

 At this point, no one knows how the president will be judged for his handling of the crisis. No one knows the course of the virus, the economic results from a patchwork reopening of the economy, or whether adequate safeguards can be instituted to dampen a reoccurrence.  The manner in which these unknowns are resolved will determine who our next president becomes.

Finally, I would like to examine the pandemic itself and draw some observations about the benefits of those who admit to knowing what they do not know.  To make my point, I will follow the recent public records of a politician, New York Governor Andrew Cuomo and of an immunologist, Dr. Anthony Fauci. These two dedicated Italian Americans approached the pandemic from opposite positions early in the pandemic before coming together on their management of the crisis. 

Elected officials, like Andrew Cuomo, understand their role in a public health emergency as seeking to dampen panic and to be positive about the future.  The goal is to keep all aspects of society running as normally as possible.  On the other hand, scientists like Anthony Fauci, see their initial role as ringing alarm bells and making statements that compel the population to change behaviors before a major breakout has occurred.  What is remarkable to me is that over the course of two months these two irreconcilable positions would merge into one voice, as each realized the extent of what they knew they did not know.

In early March, Governor Cuomo took the standard “all is well” position of a politician and fumbled the New York response to the pandemic.  The Governors of California and Washington State listened to the scientists and instituted statewide shutdowns before there were many reported infections. Cuomo did the opposite and let the residents of his state, including the most densely populated city in the world, operate as if nothing was amiss.

 During this same period, in early March, Dr. Fauci was Cuomo’s worst nightmare.  He was taking whatever action he felt necessary to save lives, which included presenting models of worst case scenarios to the White House and to the media. His predictions of two million deaths finally convinced President Trump to call for a national response.  These dire forecasts, which assumed taking no action at all, are now the basis for right wing attacks against his professional credentials and his motives.

A dramatic change took place in late March that would see both Cuomo and Fauci singing from the same sheet of music. The Governor was suddenly faced with the collapse of the New York medical system as it responded to the virus.  While it was too late to avoid large numbers of infections, a complete shutdown of all economic activity was called for to mitigate the spread. Cuomo shifted from an elected official calling for calm and restraint to one managing the largest crisis of his career.

Cuomo began holding daily media briefings during which nothing was sugar coated.  Each day the number of new cases, hospital admissions and deaths were reported along with extensive analysis of what his experts knew they did not know. The results were (and are) unknowable. As a plan of action, it was rational to beleive that social distancing and staying in place for many weeks would lower the number of infections.  New Yorkers (and a nation of shut-ins) appreciated the governor’s candor and followed his instructions.

During this same period, Dr Fauci became less of a fatalist and took the position that the results from all the models making predictions on the virus were actually not to be taken seriously.  He began explaining that there were so many variable inputs, depending on how well citizens followed his guidelines, that no result was knowable. Moreover, the virus began acting in unpredictable ways that were unknowable to medical experts.  The only real message was that each of us doing our part could flatten the curve.  We learned to apply what we do know to mitigate the unknowable.

Once the elected official became a manager and the alarmist scientist became focused on mitigation, their goals were aligned.  Neither can tell us how things will end.  Both can prescribe the same course of action.

We are now in the crucial months leading up to the presidential election. The pandemic will spawn a boatload of theories, counter theories, conspiracies and after- the- fact analysis.  Most of it will be self-serving and misleading.  Anyone who claims they know how the course of the virus or the presidential election will play out is either a fool or a manipulator.