Why is this man smiling?

by James C. Sherlock

The Governor’s 15-month emergency powers expired June 30, and, God, does he miss them.

From The Virginian-Pilot:

“School districts that aren’t requiring masks, including several in Hampton Roads, are running afoul of state law, Gov. Ralph Northam said Thursday.”

OK.

The bigger questions are

  • how long the governor will put up with the lack of emergency powers;
  • when he will start to follow Virginia’s Pandemic Emergency Annex to its Emergency Operations Plan; and
  • is the General Assembly even interested?

The law. The Commonwealth of Virginia Emergency Services and Disaster Law of 2000 remains unamended based on the experiences of COVID.

I broke down the flaws in detail last year.

One justification for emergency gubernatorial powers in that law was:

“because governmental inaction for the period required to amend the law to meet the exigency would work immediate and irrevocable harm upon the citizens or the environment of the Commonwealth.”

If the next emergency declared by the governor is again COVID, he and the General Assembly will not be able to claim that they did not have sufficient time to “amend the law to meet the exigency”.

Emergency Operations Plan. There was plenty of time in the 2021 session of the General Assembly to enshrine the provisions of the pandemic annex in state law.

§ 44-146.17. Powers and duties of Governor.

… The Governor shall have, in addition to his powers hereinafter or elsewhere prescribed by law, the following powers and duties:

(1) To proclaim and publish such rules and regulations and to issue such orders as may, in his judgment, be necessary to accomplish the purposes of this chapter including, but not limited to such measures as are in his judgment required to control, restrict, allocate or regulate the use, sale, production and distribution of food, fuel, clothing and other commodities, materials, goods, services and resources under any state or federal emergency services programs. He may adopt and implement the Commonwealth of Virginia Emergency Operations Plan, which provides for state-level emergency operations in response to any type of disaster or large-scale emergency affecting Virginia and that provides the needed framework within which more detailed emergency plans and procedures can be developed and maintained by state agencies, local governments and other organizations.

So, the language says he may. Anyone think it should say shall? Or is that going too far?

Anyone think the emergency operations plan and all of its annexes should be exercised every couple of years? There is no such requirement in Virginia law. And it was not exercised. Is that just an “oops,” or should the law demand it?

Stockpiles

“He may adopt and implement the Commonwealth of Virginia Emergency Operations Plan”

Does that include the now-disappeared “Pandemic Emergency Annex” that we exposed here? I summarized that annex in detail at the end of March 2020.

You know, the one that since 2012 had required the development and stockpiling of pandemic response materials such as PPE? Surely we now have filled the stockpiles? Haven’t we?

Just asking.

There is a fund authorized in the law:

1. For costs and expenses, including, but not limited to personnel, administrative, and equipment costs and expenses directly incurred by the Department of Emergency Services Management or by any other state agency or political subdivision or other entity, acting at the direction of the Coordinator of Emergency Services Management, in and for preventing or alleviating damage, loss, hardship, or suffering caused by emergencies, resource shortages, or natural or man-made disasters; and

2. For procurement, maintenance, and replenishment of materials, equipment, and supplies, in such quantities and at such location as the Coordinator of Emergency Services Management may deem necessary to protect the public peace, health, and safety and to preserve the lives and property and economic well-being of the people of the Commonwealth;

But those words were unchanged even in 2020 revision of the version in effect since 1976.

That law does not ever use the word “stockpile” or refer to other provisions of the Virginia Emergency Operations Plan that clearly need to be directed in law. That would at least draw the attention of the executive branch to it.

You may think that filling pandemic emergency stockpiles is a perfect use of some of the federal COVID funds?

I searched the current $4.3 billion budget bill for the word “stockpile” and got “no results found”.  Must not be a lobby for stockpiles.

A fresh start for the governor. And the Governor gets a do-over if he declares another COVID emergency.

Except as to emergency plans issued to prescribe actions to be taken in the event of disasters and emergencies, no rule, regulation, or order issued under this section shall have any effect beyond June 30 next following the next adjournment of the regular session of the General Assembly but the same or a similar rule, regulation, or order may thereafter be issued again if not contrary to law;

Perhaps the 2021 General Assembly could have fixed that.

Perhaps legislators could have limited the term of the emergency by requiring authorization by the General Assembly after 60 days or so. Republicans brought it up. Five Senate bills to amend the law were introduced in the August 18 2020 special session, all by Republicans.

Democrats were not having it. Government executive branch power unchecked by the General Assembly? What’s not to like?

Should we give them a pass because as a group General Assembly members have no idea what is in the Emergency Operations Plan Pandemic Annex? After all, neither does most of the executive branch.

Still.

And they could not find it if they looked on the state web site. It remains deleted since the day after I reported on it. Luckily, we saved them one.

I am sure they appreciate it.


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Comments

24 responses to “Coming to Virginia – a New State of Emergency?”

    1. Stephen Haner Avatar
      Stephen Haner

      Sherlock, anytime you want to retain a lobbyist or recruit a patron and get something done, I’ll send you a referral. We are part of what is affectionately called “the peanut gallery” and nobody even feels us pelting them from the rafters. Seriously, sometimes it seems you think they just sit around waiting for your deep insights and then rush to act…I gave that notion up after the first year, and I’ve got decades of history there. 🙂

      1. Nancy Naive Avatar
        Nancy Naive

        Why not just buy a Senator or a couple a three Delegates? Eliminate the middleman.

        1. James C. Sherlock Avatar
          James C. Sherlock

          Eminently doable, unfortunately, but very expensive now. The bidding keeps accelerating.

      2. James C. Sherlock Avatar
        James C. Sherlock

        Obligations of a free press, Steve. Whether elected officials listen or not remains up to them. Our job is to inform the electorate of what is going on. You and I both will continue to do that.

  1. Stephen Haner Avatar
    Stephen Haner

    I don’t see another emergency order coming out of this recent surge, because there is no more emergency at all. Problems, yes, no emergency.

    The coming argument over the meaning of Senator Dunnavant’s SB 1303 is going to get heated. Republicans are working hard today to dismiss any notion that “abiding” by CDC “mitigation strategies” as they exist at any point in time (admittedly fluid) means right now masks are required in schools. While the bill is less clear than a directive: “follow the CDC dammit,” that interpretation is not unreasonable.

    Do what you did before, get what you got before. Do you people really want to repeat the election themes of 2020? Really? Fight and die on the masks and jabs hill? Yeah, that worked.

    1. James C. Sherlock Avatar
      James C. Sherlock

      The Governor’s interpretation of the bill is not in question, at least by me. That is what “OK” means in the post.

      But you lay it in the lap of Senator Dunnavant. That is inaccurate. The SB 1303 that Senator Dunnavant originally submitted read:

      “Be it enacted by the General Assembly of Virginia:

      1. That each local school division in the Commonwealth shall make in-person learning available to all students by choice of the student’s parent or guardian.

      2. That an emergency exists and this act is in force from its passage.”

      The extensive provisions to which the governor refers were inserted by the House Committee on Education in rewriting the entirety of Senator Dunnavant’s bill in Special Session 1. https://lis.virginia.gov/cgi-bin/legp604.exe?212+ful+SB1303H1

      She voted for the revised version as better than nothing, but it was not her bill.

      1. Dick Hall-Sizemore Avatar
        Dick Hall-Sizemore

        Five of the eight Republicans on the House committee voted to report the substitute. On the floor of the House, the substitute passed on a vote of 88-9. All votes against it were by Democrats. Only one floor amendment was offered by a Republican and that was to add the emergency clause. No floor amendments to change the substance of the bill or to change the CDC guidance language were offered.

        I understand that no Republicans wanted to vote against a bill that would require schools to be open. But, if they objected to the CDC language, they could have fought it on the House floor. They likely would have lost, but they could have fought. They did not.

        It is not unusual for one house to make substantial changes to a bill from the other house. If Dunnavant was upset about, or objected to, the House changes, she could have gotten the bill put into a conference committee and tried to work something else out. She did not make that attempt.

        Any opposition to this bill and the substitute came from Democrats. Republicans can’t run away from it now.

        1. James C. Sherlock Avatar
          James C. Sherlock

          My column was not about the CDC language, with which I have no problem.

          I did not bring up Senator Dunnavant – Steve did. So I reminded him that it was not the bill she submitted.

          It was about the inaction on the part of the Governor and General Assembly to fix the problems with Virginia law that were vividly demonstrated starting in March of 2020.

          1. Dick Hall-Sizemore Avatar
            Dick Hall-Sizemore

            Obviously, they do not agree with you that the laws need fixing.

          2. Matt Adams Avatar
            Matt Adams

            A General Assembly and a Governor of the same party find no fault with granting themselves unlimited power.

            Who would have thought that would ever be the case.

            “Power tends to corrupt, and absolute power corrupts absolutely.”

          3. James C. Sherlock Avatar
            James C. Sherlock

            I do not count that as something that concerns me. My job is to call balls and strikes as I see them. They don’t acknowledge the need for an umpire. Different strokes.

        2. Stephen Haner Avatar
          Stephen Haner

          Usually a senator’s motion to strike their own bill is honored. Technically, yes, she is listed now as the patron prior to substitute. Explain that to Joe Voter. Or…..own it.

          It was a compromise. That dirty word, a compromise. I have said often that if masking is the price of open schools, of shutting up the union whiners, pay it. In the debate over the business regulations, the compromise offer from the business side has been a safe harbor for businesses which are complying with current CDC guidance. It is the same.

          Attack the Democrats on taxes, green energy nonsense, the parole board, weakening the police and turning the schools over to Marxists. On this, set the politics aside and calm the parents down and stress the schools WILL be open.

          1. Dick Hall-Sizemore Avatar
            Dick Hall-Sizemore

            I forgot about the “strike the bill” option. That is a good point about the business offer on the COVID business regulations.

          2. Stephen Haner Avatar
            Stephen Haner

            Never in their wildest dreams did they think the CDC would be stressing masks again at this time. Be careful what you ask for….

          3. James C. Sherlock Avatar
            James C. Sherlock

            Good call. Democrats are never careful what the ask for. The want government in charge – of everything. Anything (or everything) goes wrong, the answer is more money and more government.

            That marks a complete summary of their thought processes.

          4. Stephen Haner Avatar
            Stephen Haner

            But..this..was..a GOP bill…and all…all…of them…voted aye! Can’t hang this on one party.

          5. James C. Sherlock Avatar
            James C. Sherlock

            Steve. Seriously.

            You have been:
            – a newspaper man, a blogger (the “peanut gallery” as you call them both)
            – and an “operative” and lobbyist.

            You call me out by name above about speaking truth to power (peanut gallery) and offer me a lobbyist.

            Next time tell someone who gives a shares your fondness for lobbyists and the inside game in Richmond.

            I have found the Government of the Commonwealth to be sufficiently corrupt that I no longer appeal to conscience or logic to get a vote from an elected official that I do not know personally.

            Some are good people, but I have found that is not the way to bet on any issue with tons of campaign dollars behind it. My job here is to call them out to voters.

            You define my column as being about the bill in question. Read it again. It is clearly not. But you are clearly more comfortable there.

            You can build a career, or perhaps did, on such things that matter not to most voters. It really is inside baseball. They vote for officials, not their staffs, lobbyists and “operatives”.

            So hold on to your list of lobbyists. I am sure it is perfectly curated. Just don’t offer it to me.

          6. James C. Sherlock Avatar
            James C. Sherlock

            Never wrote otherwise.

            “Calm the parents down” is the politicians’ job. Almost nobody cares about how the law got passed, Steve.

            My column was about the demonstrated need for reforms in the emergency powers law including General Assembly participation in governance and emergency response plan compliance.

            You and Dick found your comfort zones in something on which I never offered an opinion, the minutiae of the legislative process.

            I wrote about scandal in the design and execution of laws; you wrote about how the laws are passed.

            Different subjects.

        3. James C. Sherlock Avatar
          James C. Sherlock

          Nobody cares, Dick. The bill is either law or it isn’t. It is.

  2. James Wyatt Whitehead Avatar
    James Wyatt Whitehead

    Since Feb, 1st, 2019, Ralph Northam has been in a state of emergency. Only 162 days of King Ralph left.

  3. Stephen Haner Avatar
    Stephen Haner

    Mr. Sherlock, if your column had a point I couldn’t find it. It was quite a rambler. It is going viral (I can see on the stats) because of the provocative and inflammatory headline claiming Northam will declare another emergency, when there is no sign (and really nothing like the situation 18 months ago to justify it). So I chose to lead the discussion into the issue of SB 1303…old politician trick, talk about what YOU want to talk about.

    Yep, I played the game on the inside for a while and am tired of hearing people who cannot figure it out, or will not learn the ropes, whine and shout sour grapes when they get nothing accomplished. Your suggestions have great merit, but that alone doesn’t get the bill signed. Want a consult over beers and I won’t even charge you?

    1. James C. Sherlock Avatar
      James C. Sherlock

      The headline, like all headlines, is stated, this time with a question mark, to get readers to read the text.

      I don’t believe it is out of the question at all that the governor, perhaps especially after the November elections, will declare another COVID emergency.

      Gain-of-function projects work to enhance the pathogenicity and/or transmissibility of potential pandemic pathogens (PPPs). COVID-19 was engineered to replicate, with each variant more resistant to attempts to combat it. Echo strain? Foxtrot strain?

      Two issues.
      A. What is sure is that this is not the last pandemic and we should better prepare for the next one than we did for this one.

      There is no evidence from the budget bill that the executive branch or the legislative branch intend to do so. I repeat my assessment that I don’t think our politicians understand enough about the failures of preparation that led to the fiascos of the last 16 months. I try to inform the voters, and some of that may filter down to the politicians.

      B. We need the Emergency Powers law to be changed to preserve participation of the General Assembly in decisions
      1. that don’t require instant response; and
      2. to meet to approve ex post facto those that do and/or have them expire by a date certain that is less than as much as 15 months away.

      If a lobbyist can achieve either of those goals, the small business community should send him or her into battle. I can’t afford to do so. So I have chosen another lane. I’ll stay in it.

  4. […] was so easy to predict that I can claim no special prescience.  I wrote a week […]

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