SOUTHERN INDIANA — On the day that Dr. Tom Harris issued restaurant capacity restrictions, the Floyd County Commissioners tabled a certification vote to confirm another four-year term for the health officer.
The commissioners, without explaining the decision, would later vote 2-1 to remove Harris, though he had already been appointed by the Floyd County Health Board. Following public outcry, the commissioners reversed that vote Dec. 15 and certified Harris.
The reasons offered by the commissioners for the original vote largely had nothing to do with the pandemic, but many Southern Indiana residents felt it was an attempt to remove the county’s top health official because of his actions during the crisis.
Jessica Smith of New Albany started an online petition asking the commissioners to certify the health officer, who has held the position since 2006. She said Harris has responded appropriately during the pandemic.
“Dr. Harris implemented tighter restrictions when our local positivity rate started to increase at an alarming rate,” Smith said Wednesday. “Our health officer took the necessary steps that needed to be taken because our governor and local government refused to act to keep our community safe.”
Rethinking emergency powers
A bill set to be introduced when the Indiana General Assembly convenes beginning Monday would give local executive officials, such as county commissioners, more authority over health officers during the pandemic. Senate Bill 48 would require health officers to receive executive permission before continuing mandates longer than 14 days during a governor-declared health emergency.
If the health department is municipally-run, the final say would rest with the city executive which would be the mayor in many cases. The commissioners operate as the executive branch in county government and would make the call on county-run health departments.
Smith said based on what happened in Floyd County, decisions on mandates should be left up to health experts, not politicians.
“Our local commissioners and local government officials are politicians with agendas. They don’t have the expertise to make those types of decisions,” Smith said. “Decisions about the health of our community should be made by doctors and no one else.”
The bill would also set limits on monetary fines that can be assessed for violations for not wearing a face covering or properly socially distancing. In addition, it would create a new section in Indiana code setting a process for individuals to obtain a declaratory judgement in court over violations issued by health officers or departments.
Senate bill targets oversight
Republican state Sens. Ron Alting (Lafayette), James Tomes (Wadesville) and Blake Doriot (Goshen) are the authors of the bill. According to a spokesperson, Doriot was unavailable for comment this week. A spokesperson for Tomes provided a statement from the senator.
“I authored this legislation to prevent health departments from operating outside of their authority,” Tomes said in the statement.
“By incorporating a locally elected official into this process, our small shops, restaurants and other places of business will be able to hold someone accountable. Over the past nine months, local health departments have been operating largely without parameters or repercussions for their decisions, and this legislation would set up a proper channel for these departments to go through by requiring input from locally elected officials after a set amount of time.”
State Sen. Ron Grooms, R-Jeffersonville, said health officers have been put in a difficult position and have largely handled the pandemic appropriately.
But there should be some oversight of mandates because of their widespread effect, Grooms continued.
“I just think it’s an awful lot of power to put in one person. That person then controls so many businesses, the lifestyles of so many people, the incomes of so many people, and the ability of people to function,” he said.
“State guidelines guide a lot of that, but they also give the health officers a lot of freedom to interpret a lot of those rules and executive orders.”
Grooms doesn’t believe county commissioners or the city executive should make the call on whether or not a mandate is implemented. He said he would support creating a board with a mix of health and business representatives to review restrictions and make the decision.
He added that every community isn’t the same. Some counties have lower positivity rates and fewer COVID-19 cases, so blanket restrictions don’t always make sense for those areas, Grooms said.
Health orders’ ‘unintended consquences’
State Rep. Ed Clere, R-New Albany, is the author of a house resolution that would require the governor to specify during an emergency whether local health departments can expand on state-issued mandates. Another part of the legislation would, according to Clere, even the playing field for small businesses during a pandemic.
He said Gov. Eric Holcomb’s orders “had the unintended consequence” of favoring big box stores while small businesses were in many cases forced to temporarily close.
But as for SB 48, Clere said he doesn’t support interference by elected officials in the actions of a health department or officer during an emergency.
“We need to be very careful when it comes to tying the hands of public health officials,” Clere said.
Commissioners and mayors already have input when it comes to the process, he noted. For example, commissioners and the New Albany mayor both have appointments to the Floyd County Health Board, which is charged with appointing a health officer, Clere said.
The commissioners are then required to certify the health board appointment, giving them another opportunity to affect the decision.
The Floyd County case though raised questions about what would occur if commissioners failed to certify a health board appointment. The Indiana statute states that the commissioners “shall” certify the appointment, but that terminology was questioned without a concise answer provided.
The Indiana Department of Health doesn’t have jurisdiction over the appointment of health officers, a spokesman confirmed in December.
Implications beyond COVID-19
Clere said he anticipates SB 48 will be “part of a much larger discussion” about the powers of the governor and state and local officials during a pandemic. He doesn’t like the direct references to COVID-19 in the bill, as Clere said legislators should make “good policy that will be appropriate and effective under a range of circumstances.”
He agrees with the bill authors in that there should be transparency, accountability and a means for businesses and individuals to seek recourse in the event of health department overreach. But Clere added that he’s not sure requiring health officers to get permission from elected officials to continue mandates is the right path.
“I’ve tangled with the Floyd County Health Department on numerous occasions, and I’m always willing to go to bat for a local business that is having issues with the health department. But I’m hesitant to tie their hands, especially during an emergency.”