The governor wants local governments to make COVID-19 mandate decisions, many need more help

Published: Aug. 3, 2020 at 7:29 PM AKDT
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JUNEAU, Alaska (KTUU) - Gov. Mike Dunleavy has said that local governments should decide whether to implement tighter COVID restrictions as cases continue to be recorded across Alaska.

“I know there are calls to do statewide mandates that would impact communities that once again have never seen the virus,” the governor said last Wednesday during a press conference.

Home rule cities and first class cities can implement mandates. Many communities across Alaska either lack the capacity or have been unsure of their authority to issue mandates dealing with public health.

The Department of Law sent a memorandum to inform second-class cities that they can implement health mandates. “Some municipalities are hesitant to enact such measures because they believe they do not have the authority to do so. This notion is simply incorrect,” the memo reads.

“I think the governor has been good about reaching out to our members, we’ve had seven calls in the last week with him and with the Department of Law on this topic,” said Nils Andreassen, the executive director of the Alaska Municipal League.

But not everyone agrees with the state’s interpretation of local government authority.

Elizabeth Bakalar, the municipal attorney for the City of Bethel, said if council members adopted health powers, Bethel could potentially implement COVID mandates. The Department of Law’s memo suggests that second-class cities like Bethel can enact COVID mandates because the Legislature hasn’t specifically prohibited it.

“But that is a backwards way of looking at, in my view,” Bakalar wrote in an email. “If we are going to affirmatively exercise a power, that power has to come from somewhere. We have to be able to point to a statute or an ordinance or a constitutional provision that lets us do whatever the thing is.”

Bethel has adopted resolutions during the COVID pandemic but stopped short of implementing mandates.

Another class of local government in Alaska is widely accepted to be barred from implementing public health mandates. Multiple municipal attorneys say under Alaska Statute that second-class boroughs simply lack that power.

Fairbanks North Star Borough, Kenai Peninsula Borough, Aleutians-East Borough, Bristol Bay Borough and Matanuska Susitna-Borough are all second-class boroughs.

George Hays, the acting borough manager in Palmer, said the Mat-Su’s “weak” mayor system means there could not be borough-wide pandemic mandates. Instead, those decisions would need to be made at a city level.

Mayor Alvin Osterback of the Aleutians-East Borough says he’s in the same position. Local communities and tribal groups have worked with the borough and state to keep the virus out. “So far, it’s worked fairly well,” Osterback said.

But a concern for Osterback is how small communities can respond to COVID without data from the state. The Department of Health and Social Services, following federal privacy regulations, says it cannot release COVID information to communities with fewer than 1,000 people.

The lack of data is causing challenges for dozens of Alaska villages. “So asking them to exercise that power or issue a mandate without the relevant data is incredibly challenging,” said Andreassen.

Cold Bay, a second-class city, recorded its first resident case of COVID on Monday. A village of 108 people, according to the 2010 U.S. Census, it wasn’t the state that told residents about the positive case, it was Eastern Aleutians Tribes, Inc.

Cassidi Cameron, the city manager of Seldovia, says the community wants to curb COVID using a data driven approach but Seldovia can’t receive the necessary data. “We go in a circle,” she said.

Seldovia is a first-class city and able to implement tighter COVID restrictions. There are plans prepared about implementing those restrictions if a positive case is recorded.

With fewer than 1,000 people in Seldovia, no one knows for sure if there has been a positive case or not. “The rumor mill is hot,” Cameron said. “But we can’t base policy on rumors.”

The Department of Health and Social Services is aware of the problems with the lack of data for Alaska’s villages and small communities.

“Dr. Anne Zink, our Chief Medical Officer, is discussing these data challenges with the Alaska Municipal League and is holding meetings with these smaller communities as needed,” Elizabeth Manning, a spokesperson for the department, wrote in an email. “It can also be helpful for some of these smaller communities to base decisions off the alert levels of neighboring communities when it makes sense to do so.”

Andreassen says another concern for Alaska communities is if they are capable of enforcing mandates or tighter COVID restrictions. There are 60-plus unincorporated Alaska communities with very limited authority but the challenge of capability is more widespread.

“I think our sense of it is that it’s pretty challenging to adopt powers that you haven’t been exercising forever,” Andreassen said. “You have to think about what your capacity is, your capability is, your expertise, knowledge, staff, all the things that go along with accepting a power and taking that on.”

Adak is a second-class city but City Manager Layton Lockett says some tough COVID restrictions have been in place for months. The small village in the Aleutians has closed itself off to outsiders, unless there are critical reasons to travel.

The police department closed years ago and the city has issued its first municipal citations for two people violating the travel orders.

Andreassen said some communities are uncertain if the state will back them up if there are enforcement questions.

“It will be a very rare occurrence that an Alaska State or Wildlife Trooper makes an arrest or issues a citation related to violating a health mandate,” Megan Peters, a spokesperson for the Department of Public Safety, wrote in an email. “If such action is taken, it will be as a final recourse after education, voluntary compliance is not realized, and there is evidence that a person’s behavior met the elements of a crime by statute.”

The lack of communication from the state or forewarning about state health mandates has been frustrating in Adak. Lockett said COVID had taught the community lessons for future emergencies: “We’re more on our own than we thought.”

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