2040 MATTERS

The Governor must deliver on his repeated, and so far empty, promises to increase local control over public health.

In the iconic Peanuts comic strip, one of the recurring plot lines revolved around Charlie Brown repeatedly attempting to kick a football held by Lucy van Pelt, only to have her yank the football away at the last second every time. Today in California, Governor Newsom keeps holding out the prospect of greater local control over public health only to pull it back every time the counties stride for it. This dynamic is undermining our ability to manage the pandemic by fueling distrust, non-compliance, and non-enforcement across the State. It is also hampering our recovery. If we want to successfully reopen society and protect public health, our counties must have the freedom to lead the way.

When he announced the statewide stay at home order on March 19th, Governor Newsom promised “collaboration and partnership across every level of government” as he rallied the State to “meet the moment.” On April 14^th, after it was clear that the stay at home order had flattened the hospitalization curve, Governor Newsom reiterated that “localism [would be] determinative” in transitioning into the next phase of the pandemic.

Despite these promises, Governor Newsom has not collaborated with local governments to transition to the next phase of the pandemic. Indeed, his ill-fated threat to close all beaches in California underscored the absence of collaboration that has characterized his response to the pandemic. Coastal governments around the State were blind-sided, and Orange County officials were not given any opportunity to address his concerns. Instead, the matter ended up in court.

Similarly, localism is far from determinative at this point of the pandemic. After his April 14^th comments, I interpreted the Governor’s remarks as a call to action for our counties. Many agreed. Several Counties petitioned the Governor for relief from the stay at home order based on their progress in containing the virus. But they were all rebuffed. On May 5^th, Governor Newsom finally announced that Counties would be able to move slightly faster than the State in relaxing public health orders provided they met certain criteria (no county can proceed to Governor Newsom’s Stage 3 at this time). As I noted before, however, localism is a one-way street for Governor Newsom during the pandemic. Counties can tighten the State’s lockdown, but they cannot relax its grip over their communities. When the criteria for local control were revealed on May 8^th, it was clear that many counties would not be able to meet them (with the notable exception of a handful of counties in Northern California, many of which were re-opening anyway).

Specifically, the State’s latest metrics prevent a county from exercising local control over public health unless it has no COVID-19 deaths for a 14-day period and no more than 1 positive case per 10,000 residents (over the same period).

The requirement for no fatalities over 14 days may not be achievable in many counties even when we have a vaccine. This is an entirely unrealistic zero-risk policy that the government has never utilized when confronting other significant public health problems (e.g., air quality, vehicle safety, and seasonal flu).

With expanded testing, the continued spread of the virus, and the fact that the Governor has now loosened certain parts of the stay at home order, we know that the number of positive cases will increase. This means the new case limit will be unachievable for many counties. It is also entirely unnecessary. If at-risk populations were to stay at home, future infections would not overly burden the healthcare system. In addition, by permitting more activity by low-risk individuals, we would accelerate our efforts to acquire herd immunity. The Governor’s position, by contrast, slows our ability to acquire herd immunity by requiring economically and socially destructive stay at home policies to remain in place in order to reduce confirmed positives that will not result in hospitalizations. This is nonsensical.

In Santa Barbara County, we face another irrational obstacle to local control over public health. The State has taken the initial position that the COVID-19 cases from inmates at the Lompoc Federal Prison must be included in our County’s case statistics for purpose of assessing its readiness to reopen. This position is without any rational basis in public health policy. The purpose of testing is to prevent community spread of COVID-19 by identifying the infected, isolating them, and then tracing their contacts. By definition, the Lompoc Federal prisoners are not members of our community and pose no threat of community spread. They are incarcerated. Further, they are already isolated and all their contacts have been effectively traced and tested. By forcing residents to remain at home because of COVID-19 cases at a federal prison, the Governor is ignoring his duty to protect the interests of the actual residents of Santa Barbara County.

These standards pose another problem for the Governor. If the State chooses to continue moving through Stage 2 before these standards have been met at the statewide level, the Governor would be forced to explain why the State can disregard purportedly critical public health standards but the counties cannot, exposing him to charges of hypocrisy and autocracy. If the status quo remains until these standards have been met statewide, it could be months (or years) before the next relaxation of the stay at home order. This delay would destroy the lives of millions of Californians and set our recovery back by years, if not decades.

The Governor would be wise to scrap these standards in favor of the hospital capacity requirement already contained in the variance guidelines. Remember, ensuring hospital capacity, not avoiding fatalities and cases, was the explicit basis for the stay at home order.

More broadly, the Governor would be wise to collaborate as promised with local governments and accelerate local control over public health. The State’s heavy-handed approach to managing COVID-19 is costing the Governor necessary support from industries, public officials, and residents. The pace at which the State is moving is also insufficient to stem the downward spiral the State and counties are trapped in under the stay at home order. Permitting curbside retail activity to stem an economic collapse is a bit like using bubble gum to plug one of a thousand holes in a leaking dam. If we are to have any hope of living with COVID-19 in a way that enables economic activity and properly weighs the full-range of physical and mental health needs of our residents, we must empower the counties to lead the way. Let’s hope the Governor trusts his earlier instincts and does so immediately.