STERLING–Easing of coronavirus restrictions imposed by Governor Polis and the Colorado Department of Health and Environment (CDPHE) in Logan County, as well as other rural counties, is highly unlikely thanks to an obscure CDPHE requirement.
Buried deep in the CDPHE web page is a requirement that must be met before the state health agency will allow a county to move to the lowest level of its new “dial” structure, “Protect Our Neighbors.”
Having nothing to do with epidemiological criteria like case and positivity rates that determine a county’s place in the higher levels of restrictions on the dial, CDPHE demands submission of “letters of attestation” from a list of local government officials stating that they commit to:
- Support for the containment plan outlined in this certification.
- A commitment to support the LPHA [local public health authority] director(s) as the agency works to meet these thresholds.
- A commitment to utilize their office/agency’s tools and resources to encourage compliance with the containment plan outlined in this certification as well as public health orders, and take appropriate enforcement actions when needed.
The agencies that must make this attestation include county sheriffs and local police departments.
For Logan County, and other counties with similar opinions about the Governor’s COVID-19 orders, this means that they will never be permitted wider authority to determine their own needs and responses to the pandemic until the entire state has reached whatever goal Governor Polis chooses to set for the end of the pandemic.
“When we got the Protector Our Neighbor phase information we were very excited,” Logan County Commissioner Byron Pelton told Complete Colorado. “At that time, we only had 11 cases in Logan County. But once I read that, there was no way.”
Pelton says none of the sheriffs in the northeast region of the state are interested in enforcing Governor Polis’ edicts.
Logan County Sheriff Brett Powell told Complete Colorado in simple and direct terms, “I am not going to do it. It’s people’s choice whether they want to wear a mask or not. I haven’t enforced it from day one, and I won’t enforce it now.”
Pelton says the sentiment is pretty much the same in the rest of the counties in the 13th Judicial District, which includes Morgan, Logan, Sedgwick, Phillips, Yuma, Washington and Kit Carson counties.
Travis Sides, Chief Deputy District Attorney for the 13th Judicial District, says it’s unlikely CDPHE public health order violations will be prosecuted.
“If you violate a legally issued public health order, you could be guilty of a misdemeanor,” Sides told Complete Colorado. “In order for any criminal charge to be prosecuted, including something like this, local law enforcement would have to actually investigate the case, issue a summons or make an arrest.”
Sides says his hands are tied without law enforcement cooperation.
“I can’t really tell local law enforcement what to do or how do their jobs,” said Sides. “Especially a sheriff’s office. That’s another elected official. We can’t force law enforcement to go arrest somebody.”
That’s not his only concern with Governor Polis’ edicts, which he says aren’t enforceable.
“I don’t think the public health orders are lawfully issued,” said Sides. “I do not feel comfortable even prosecuting such a case.”
Sides pointed to a memorandum issued by Weld County Attorney Bruce T. Barker in June that outlined the defects in Polis’ executive orders and the CDPHE rules created under them.
Complete Colorado investigative reporter Sherrie Peif quotes Barker saying, “If you go along with the premise that the state health director can issue orders that are rules that then tell you how to live your life and run your business, then that person has the ability to change her mind at any time. You have an unelected official who is creating a crime.”
Sides says that the distinction between a rule and an order is of critical importance to the enforceability of the Governor’s executive orders.
In Colorado law a rule is a “statement of general applicability and future effect implementing, interpreting, or declaring law or policy or setting forth the procedure or practice requirements of any agency.” An order is the “final disposition in any matter other than rule-making.”
Rules precede and guide the agency in how they create an order that tells someone what they can or cannot do. Sides says there are specific statutory requirements involved in creating rules that neither Governor Polis nor CDPHE have followed.
“Technically, these public health orders are called public health orders, but really, they’d be rules under the statutory definition of what they’re doing, which is telling all people or businesses in the state how to behave and how to act and how to do X, Y or Z. So, like any government agency, CDPHE has rule-making procedures they have to follow. But they haven’t followed, from the word go, their own basic rule making procedures. So, before I even get to the substance of the public health orders, they’re not lawfully issued.”
Sides says enforcing or prosecuting unlawful public health orders places sheriffs and district attorneys in an untenable position.
“We have laws in Colorado that govern how they can issue public health orders. They have not followed those statutes. We have due process, even if it’s not big hoops. But there are still hoops that people have to follow,” said Sides. “Because the previous public health orders didn’t follow the rule-making procedure and all the subsequent ones kept relying back on the original one, I stopped paying attention to a lot of public health orders, because even in addition to them not being lawfully issued, I think it’s illegal for the Executive Branch to try to regulate business without going through the Legislature.”