Dayton, Ohio Correspondent — Ohio is the case study and I’d rather talk about it than about the principle.
Our state health director resigned in June. There had been protests at her house, armed ones, and a run of legislative bills aimed at stripping the authority of her office. She was the most visible public health official in the country for about ten weeks and then she was gone.
Whatever you thought of the orders — and I thought some were badly calibrated — that outcome is a failure with consequences past this year. You cannot recruit for a job where the qualification is a medical degree and the working condition is a crowd outside your home.
On the structural question, my answer is the one I’d give about any technical role in a plant. The technical judgment has to be independent or it isn’t a judgment. The decision belongs to whoever can be voted out. What Ohio demonstrated is what happens when those two get collapsed into one person and the public has nobody else to hold responsible.
Orange County, California Correspondent — Our county health officer resigned in June after receiving threats over a mask order, and a woman at a board meeting had read out what she believed was the officer’s home address.
I’d ask people to sit with that before answering the abstract question.
The board then appointed a successor and the order changed. So the accountability mechanism worked, in the sense that the elected body’s preference prevailed. Whether that’s the outcome anybody wanted is a different matter.
From an analytical standpoint, the thing that broke here wasn’t the reporting line. It was that a technical office with no political constituency was made the visible author of an unpopular decision that elected officials had declined to author themselves. That’s an accountability failure in the opposite direction from the one usually described. The insulation didn’t protect her. It exposed her.
Novi, Michigan Correspondent — Michigan is having this fought out at the level of the statute rather than the reporting line, which I think is the more useful place for it.
The question in front of our Supreme Court right now is whether the 1945 emergency powers act delegates so much authority to a governor that it violates the separation of powers. That’s not about health officers specifically. It’s about whether a legislature can hand over that much and then adjourn.
I don’t know how it comes out. What I’d say is that the argument is the right one to be having, because the alternative is a decade of litigating each order on its own facts.
The industrial version of this is simple. When our engineers say a process is unsafe, they don’t decide whether to run it. They document it and management decides and management owns the outcome. Nobody thinks that arrangement compromises the engineering.
Tyler, Texas Correspondent — Texas ran the opposite experiment and it’s worth describing.
Here the fight wasn’t a health officer against a governor. It was the governor against the county judges. Local orders got issued, then preempted, then partly restored, then a statewide order arrived in July that did what several counties had been forbidden to do in May.
From where I sit that’s worse than either pure model, because nobody could tell you who was in charge on a given Tuesday, and my clients had to comply with whichever layer was currently operative.
The insurance angle nobody raises: public officials liability. A county judge issuing an order that gets voided has an exposure, and his coverage has exclusions. Several of them were getting that advice before they decided anything, which means the legal risk of the officeholder was an input into the public health decision. That’s not how any of this is supposed to work and it’s exactly what happens when the authority is unclear.
Clermont, Florida Correspondent — Florida did it by preemption, and I’d describe the practical result for the people I advise.
The state took the position early that local governments couldn’t be more restrictive than the state in certain areas, and the counties spent the summer testing where the line was. My clients in Lake and Orange counties were operating under different rules than clients forty minutes away, and both sets were subject to change by a state decision neither county had a say in.
I’d say the underlying error is common to every version of this. Nobody decided in advance who holds the authority in a long emergency, so it got decided repeatedly, under pressure, by whoever moved first.
Insulate the assessment. Assign the decision by statute, in writing, before the next one. That’s a legislative job and it’s boring and it’s the whole fix.
Jacksonville, Florida Correspondent — Duval consolidated the city and the county fifty years ago, so we have one government where most places have two, and that turned out to matter.
We could act as one entity. The trouble is the surrounding counties couldn’t act with us, and a metropolitan area doesn’t respect a county line — people cross it to work every morning.
That’s the argument for the authority sitting higher up, and I’d normally resist that instinct. On a communicable disease it’s hard to avoid. The unit of decision ought to match the unit of transmission, and it almost never does.
On the reporting line: give me a technical officer who says what he thinks and an elected official who signs. What I don’t want is what we frequently got, which is an order with nobody’s name on it.
Las Vegas, Nevada Correspondent — We have a model for this in town and nobody has thought to look at it.
The Gaming Control Board is a technical regulator with real independence, appointed for fixed terms, staffed by people who know the business. It issues findings that cost operators enormous amounts of money. Nobody accuses it of being political, and I’ve watched it rule against very powerful people.
Why does that work? Because its jurisdiction is narrow, its standards are published, its process is adjudicative, and everybody knew the rules before they were applied.
Public health authority in an emergency has none of those properties. It’s broad, the standards are being written as they’re applied, and there’s no process. That’s the difference, and it isn’t about insulation. An insulated regulator with unpublished standards is worse than an accountable one, not better.
Myrtle Beach Correspondent — I’d talk about how these people became public figures, because that’s the mechanism and nobody designed it.
A county health officer was, until this year, somebody whose name appeared in a restaurant inspection report. Then they were on television every day, and their photograph and their signature were on a document that closed somebody’s business.
What happens next is entirely predictable to anybody who works in my field. A person with a name and a face attached to an unpopular decision becomes a target, and the platforms will find them their audience within a day.
That’s a new condition. Whatever the right reporting line is, it now has to account for the fact that the technical official is personally exposed in a way the job never contemplated, and the elected official — who has staff, security, and a press operation — frequently is not.
Sheffield, Jamaica Correspondent — I would offer the colonial observation, since it explains something about why this office exists in the shape it does.
Public health authority in this region descends directly from imperial administration, where the medical officer of health held powers of compulsion that no local body could overrule. Those powers were used to quarantine, to condemn housing, and occasionally to relocate populations, and the independence of the officer was precisely the point.
We inherited both the office and the memory. Our chief medical officer is a genuinely respected figure and the authority is still statutorily broad, and there is a strand of public feeling here that has never been entirely comfortable with it.
The American question assumes a choice between expertise and accountability. My region’s history suggests the more important variable is whether the population believes the officer is one of them. Where that holds, either structure works. Where it does not, neither does.
Owatonna, MN Correspondent — There’s a historical point worth making, which is that this office used to be almost entirely uncontroversial and we should ask what changed.
The county health officer was a local physician with statutory powers to quarantine, condemn a well, close a school during an outbreak. Those powers were used, routinely, within living memory, and nobody argued about the reporting line, because the decisions were small and local and the person making them was known.
What changed isn’t the office. It’s that the decision got large enough to have a national political valence, and a structure built for closing one school for two weeks was asked to close everything for a year.
You can’t fix that by adjusting who reports to whom. You fix it by writing a separate authority for the large case, with a legislative check, and leaving the small case alone. We’ve conflated two things that were never the same thing.
