State tells Franklin commissioners they can’t defy governor’s stay-at-home order

The Franklin County commissioners can’t legally allow businesses to open their doors, according to the Washington state governor’s office.

Businesses that decide to reopen in Franklin County could be cited and fined, attorney Kathryn Leathers, the governor’s General Counsel, wrote in a letter to the county on Wednesday.

And she said businesses cannot rely on the Franklin County commissioner’s resolution to defend themselves. The county’s decision does not apply to businesses in Pasco, Kahlotus or Connell.

“The action taken by the board of commissioners intentionally and knowingly violates an order issued by the governor pursuant to his emergency powers ... and it therefore violates state law,” said the letter to the commissioners that demands they retract or rescind the resolution.

Franklin County has called a special meeting for Thursday morning to talk about the issue in a closed-door session with the county attorney. State officials say Prosecutor Shawn Sant has agreed that Inslee had the authority to close non-essential businesses.

On Wednesday afternoon, Commissioner Brad Peck admitted voting for the resolution was a mistake because it wasn’t properly vetted. He said he will ask the rest of the board to rescind the resolution.

The letter from the state came a day after the three Franklin County commissioners voted unanimously to “end recognition” of Gov. Jay Inslee’s stay-at-home order issued to slow the spread of the new coronavirus that causes COVID-19.

At the time, the commissioners defended the proclamation by saying that Inslee’s emergency powers needed approval from the Legislature to be extended past 30 days.

“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,” Peck said at the meeting.

He read from the same state 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.

He admitted Wednesday that he didn’t know that the Legislature had extended the order.

Swift response

Commissioner Clint Didier’s handwritten emergency proclamation was met with praise and anger from various sources, but it only took a few hours for the Inslee’s office to push back.

David Postman, Inslee’s chief of staff, told reporters later it could legally jeopardize businesses and risk people’s health.

While local governments can be more restrictive than state law, they can’t be less restrictive, Postman said.

Leathers criticized the decision, saying it simply creates more confusion, since they can’t protect people from being charged with violating state law.

One of the places it created confusion was in Pasco, said Mayor Saul Martinez in a Wednesday afternoon statement.

“The city will continue to lawfully adhere to (the) governor’s orders unless rescinded by the governor or overturned by a court of a competent jurisdiction,” the statement read.

While local police have been hesitant about enforcing the stay-at-home order, the governor has laid out a three-step process for enforcing the the order, which starts with education, Leathers said.

However, if businesses don’t comply, they could face criminal or civil charges.

Commissioner Peck responded to questions from the Herald through County Administrator Keith Johnson saying that a special meeting is scheduled for Thursday morning to talk about potential legal issues in executive session.

The email from Johnson said the board may take action after talking with its attorney.

The three commissioners make up half of the Benton Franklin Health District’s governing board.

Peck’s response

In a statement to the Herald, Peck said the resolution was not “properly vetted and passed through consideration of the myriad impacts it might produce.”

“Leading from the front on issues comes with risk,” Peck said. “Leading from the back is not leadership at all. Consequently, leaders — all leaders — make mistakes.”

The lack of review from the county’s attorneys and the speed at which it headed to a vote should have been red flags that gave the commissioners pause. They should have waited before voting on such an important decision.

He also admitted to missing the resolution from the Legislature approving extending the emergency.

However, Peck said he still believes Inslee has gone too far in respect to restrictions on church services. He also expressed concern that Boeing workers are being allowed to return to work while workers in this area can’t.

“What is also clear is that arguing with our Governor or taking bold, albeit well-intended Board actions, only furthers the divide and does not advance the interests of our citizens ... which must be our first priority,” he wrote. “Let us not forget that defending the Constitutional rights of our citizens is advancing citizen interests. However let’s be civil, responsible and thorough in doing so. Open discussion, public input and debate are more necessary than ever.”

He said he’d received a flood of response from across the state on both sides of the issue.

Benton County

Benton County received more than a dozen calls and emails asking how they would respond to the issues surrounding Franklin County’s decision, according to officials.

While they want the governor to come up with a more detailed plan for returning to normal, they are going to continue following the “stay-at-home” order. They also said they don’t have the authority to override it.

“We understand our community’s desire to ‘return to normal’ and the need for our local businesses to be able to reopen. We also appreciate the inequities that exist in allowing certain functions to continue as essential while other similar functions are deemed non-essential and prohibited,” the commissioners said in an unsigned response.

The Benton County commissioners aren’t happy with Tuesday’s news conference that lacked details and a regional approach for returning back to work. They said they plan to continue talking with the governor’s office about their concerns.

This story was originally published April 22, 2020 at 12:50 PM.