GLASGOW – As an increasing number of mandates have flowed from state and federal officials on actions required to prevent a sharp increase in the number of cases of COVID-19, the illness caused by a novel type of coronavirus, one of the questions floating around is: “Who has the responsibility and/or authority for enforcing these rules?”
The short answer is that the job, at least initially, falls on local health departments because all of these changes are stemming from a public health issue. If entities continue to refuse to comply, then eventually, it can become a criminal matter.
The Thursday order prohibiting “all mass gatherings” announced by Gov. Andy Beshear, for example, comes through the Cabinet for Health and Family Services. It’s signed by the commissioner of public health and Eric Friedlander, acting cabinet secretary. As part of the directive itself, it states: “The Department of Public Health hereby delegates to local health departments the authority to take all necessary measures to implement this Order.”
Ashli McCarty, public information officer for the Barren River District Health Department, said via telephone Friday that enforcement is complaint-driven, and such complaints should be directed to the environmental services personnel for the county.
Once a complaint is received that someone is not abiding by the mandates, contact is made via telephone with the party alleged to be in violation. If another complaint is received after that or the health department has some other reason to believe someone is not complying, another contact is made during which an order would be issued face to face. This would be the same order issued from the state government, for example, “we would just issue it to them in person so they would have it in writing,” McCarty said.
Noncompliance after that point is turned over to the county attorney.
McCarty said she didn’t know of any cases that had gotten that far, though she didn’t rule out that any had, but “we have made quite a few phone calls after getting complaints.”
McCarty said she’s hopeful that everyone will continue to go along with steps being laid out to reduce risk of exposure to themselves or others.
Earlier in the week, Kentucky Attorney General Daniel Cameron distributed a seven-page guidance document meant to be a resource to aid county and commonwealth’s attorneys in navigating “this novel and pressing crisis.”
It specifically states it is not meant to be a directive in itself and it is not intended to be legal advice and that his office was taking no position on whether an individual county should declare a state of emergency, as Barren County did Tuesday.
The document addresses the county’s authority to make such declarations and to include civil and criminal remedies for violation of the fiscal court ordinance that addresses the emergency, and it outlines how issues can become criminal matters by citing specific Kentucky revised statutes that apply.
“[The Office of the Attorney General] recommends that all administrative and statutory provisions of authority granted to [the cabinet] and local health departments be exhausted before any consideration of criminal action is given,” Cameron’s memo states. “If, however, civil remedies prove inadequate, a prosecutor has potential criminal remedies they may seek. OAG cautions prosecutors and law enforcement to use great discretion in applying these criminal statutes because many remain untested in courts.”
Cameron draws the memo toward its closing with, “Remember that counties must work alongside federal, state and local agencies for a comprehensive approach to the current situation. Under Kentucky law, every level of government has a role to play in responding to COVID-19, and we should all strive to do our part.”