UPDATE: Franklin commissioners defy state order. Businesses can reopen, they say

Franklin County is back open for business.

The unanimous decision Tuesday by the three county commissioners defies Washington Gov. Jay Inslee’s stay-at-home order, which is in effect until May 4.

“As far as I’m concerned the county is open, and I’d encourage people within the law and within the parameters of their own safety — we’re adults, we can make decisions — to behave accordingly. That’s what I’m doing,” said Commissioner Brad Peck.

The commissioners, all Republican, decided to reopen their county one month after Inslee, a Democrat, announced the shutdown in light of the coronavirus pandemic.

But the governor’s office pushed back Tuesday evening calling their decision “a wrong-headed approach” that could expose them to legal liability.

David Postman, Inslee’s chief of staff told reporters at a statewide telephone news conference that Franklin County is “putting businesses in (legal) jeopardy” and putting “citizens’ health in jeopardy.”

“Local governments can be stricter than the state if they choose, they can’t be looser. The law doesn’t allow it,” he said.

“The order is clearly rooted in statute and constitutional authority, and a county governing body does not have the right, the legal authority in any way, to take a vote and deem something unconstitutional. That’s a role for the courts,” he said.

He said the state is preparing a letter to the commissioners.

The three commissioners, along with the Benton County commissioners, make up the governing board of the Benton Franklin Health District.

Health officials reported Tuesday that four people have died in Franklin County from complications of COVID-19 and 35 in Benton County, making the area one of the highest death rates per 1,000 in the state.

Tuesday’s hand-written motion was made by Commissioner Clint Didier, whose later announcement on his Facebook page was met with both praise and anger.

Under review by county prosecutor

Didier said Inslee’s emergency proclamation is unconstitutional, and wrote that the commissioners “support the reopening for all builder [sic] and small business [sic] that want to work.”

Pasco City Manager Dave Zabell said the “commissioners’ motion does not have an impact on the incorporated portions of the county: Pasco, Connell and Kahlotus.”

Zabell added that he’s heard the county motion is under review by Prosecutor Shawn Sant and is interested to see what the attorney’s legal opinion is on this.

A spokeswoman with the governor’s office also told the Tri-City Herald that Tuesday’s action is illegal and violates Inslee’s “Stay Home, Stay Healthy” order.

“Franklin County commissioners do not have the authority to do this,” said Tara Lee, communications director. “Only the Washington state Supreme Court can declare something unconstitutional.”

Inslee’s Proclamation 20-25 cites RCW 43.06.220(1)(h) in declaring a statement of emergency.

Peck read from the same state law during the meeting but based his statement on the second and fourth sections, which are not mentioned in or applicable to the governor’s order.

The Legislature has approved extending the order on April 15.

Added to meeting agenda

A motion to reopen was not on the agenda for Tuesday’s regular board meeting, but Peck got the discussion going after a county resident addressed the board and asked that people be allowed to go back to work.

Peck said he has received a number of emails encouraging the county to open up again.

“If anyone knows of a statute or authority for this board to overrule a governor’s executive order, please show it to me because I would love to use it,” he said in the meeting. “I would love to reopen the county, but we just simply don’t have the authority.”

Peck proceeded to read the law dealing with limiting the governor’s authority to create and extend an executive order.

He said the order can either be extended by the state Legislature through concurrent resolution or, if not in session, by the leadership of the Senate and House of Representatives in writing until it can be extended through a resolution.

“By my reading, this is Day 90. The governor’s authority ended at Day 30,” said Peck.

Didier followed that statement with his motion, which was seconded by Peck.

“I would just add that something like this probably benefits from a legal review,” said Peck. “To my knowledge, there is nothing unlawful or inappropriate about it, but I’d like to run by staff.”

He added that his decision to push the motion forward to a vote was contingent on the belief it was a lawful motion. He said he “did a reasonable amount of legwork” and found nothing saying the county is prohibited from reopening.

“The difficulty, of course, is that businesses that reopened may find it difficult to work with other counties that are not open,” Peck continued. “We’re adults. I think we understand what social distancing means and what the perceived benefits of it are, and to be responsible for the younger folks in our own families.”

“Barring any evidence that says we cannot do it, I think we need to step up there and just say it’s time.”

Didier said it was promising to read that Seattle parks and farmers markets were reopening. If that can be done in King County, then why not Franklin County, he suggested.

Once passed, Chairman Bob Koch said, “So be it.”

That motion was immediately followed by a resolution that renewed and extended some provisions of the county’s emergency proclamation from March 18.

The commissioners questioned if it was a moot issue, but County Administrator Keith Johnson said it “allows us to use the federal leave bank that was recently passed by Congress and signed by the president and to manage the (human resources) side of things, and to align Franklin County’s emergency order that allows us to procure goods and services without going through a protracted bidding process.”

Kennewick Mayor Pro Tem Steve Lee questioned the commissioners’ decision Tuesday and, in a Facebook comment, asked to see a copy of the court case or opinion stating Gov. Inslee’s order is unconstitutional.

In a reply to a constituent, Lee said elected officials have a duty to follow the law and make choices that keep their jurisdiction out of litigation.

“Irresponsible or non-legally justified actions taken by these bodies can inflict millions of dollars of damages on their jurisdictions through court cases,” Lee wrote. “This is why each jurisdiction has a legal team to run things by beforehand.”

“Also, it seems this topic was not on the agenda and it’s discussion constitutes a violation of the Open Public Meetings Act,” he added.

Lee added a later comment saying he’d learned that Franklin County’s “legal staff is currently researching the actions taken by the Franklin County commissioners today and may have a legal opinion on this issue over the next couple of weeks.”

One woman on Didier’s Facebook page said social distancing should be voluntary, and thanked the commissioner for “giving businesses and people the opportunity to make changes to have voluntary interaction as safely as possible.”

Former Benton County commissioner Claude Oliver was one of Didier’s followers to praise the motion for both economics and civil liberties.

But a number of people attacked Didier for wanting to reopen the county too soon, citing reports that say lifting restrictions now could lead be detrimental.

“The death will be on your hands sir,” said one commenter.

“Idiotic. We can blame you when the cases in (Franklin County) skyrocket,” wrote another.

This story was originally published April 21, 2020 at 2:58 PM.