According to Governor Kristi Noem’s various executive orders, South Dakota is in a disaster and a state of emergency, but we are not in a public health emergency, not at the state level. Governor Noem invoked her emergency disaster powers under SDCL 34-48A, the emergency management title, on March 13, but neither she nor her Secretary of Health have yet declared a public health emergency under SDCL 34-22, the contagious disease control chapter. SDCL 34-22-41 says pretty clearly that coronavirus is just such an emergency:
For the purposes of §§ 34-3-26, 34-16-22 to 34-16-25, inclusive, and 34-22-41 to 34-22-44, inclusive, a public health emergency is an occurrence or imminent threat of an illness, health condition, or widespread exposure to an infectious or toxic agent that poses a significant risk of substantial harm to the affected population [SDCL 34-22-41, last amended 2002].
Covid-19 is an infectious agent. It’s occurring. It’s threatening everyone in the state: at last projection, Governor Noem said 70% of us could get it, and that could mean 6,400 South Dakotans dying.
Strangely, the statutes cited in that definition don’t mention public health emergencies. Chapter 34-16 sets rules for county boards of health and empowers the superintendents of such boards to “act without consultation with the county board, for the prevention of such danger, and shall immediately report the action to the president of the county board and to the secretary of health” in case of “immediate danger to the health of persons.” SDCL 34-3-26 extends those powers to full-time county or district health departments. Those county officials don’t appear to need an order from the state to take action against an epidemic.
The 111 mayors and few dozen other local officials who signed an open letter to the Governor telling her to declare a public health emergency say that declaring a public health emergency would give them “certainty” to use certain “untested” and “cumbersome” laws to crack down on activities that heighten the risk of coronavirus exposure. I get the feeling a lot of hesitant local officials are just worried about getting sued later.
But the mayors and other local honchos give another more compelling reason for declaring a public health emergency: money. Evidently, if we don’t dot that i and cross that t, we might miss out on $1.25 billion in federal coronavirus relief:
The Families First Coronavirus Response Act, that became effective April 1, provides funds to states for the public health emergency created by COVID-19. This act requires a state to issue an emergency declaration to access funds for South Dakota households under its SNAP provision for emergency allotments to address temporary food needs. In addition, the recently enacted Coronavirus Aid, Relief, and Economic Security (CARES) Act creates a coronavirus relief fund that will grant South Dakota $1,250,000,000 to use towards expenditures incurred due to the public health emergency. A declaration of a public health emergency would give South Dakota access to these, and potentially others, much needed funds [South Dakota municipal officials, open letter to Governor Kristi Noem, in Todd Epp, “Over 160 City and County Leaders Ask Gov. Noem to Declare a Public Health Emergency,” KELO Radio, 2020.04.06].
Tourists aren’t going to come spend $4.1 billion in South Dakota this year. If Uncle Sam is writing a $1.25-billion check, we’d better do whatever it takes to get that shot in the arm.
But it appears that 111 mayors and their friends can all be wrong. The CARES Act does not appear to require the declaration these local officials contend is required to release Coronavirus Relief Funds to local governments.
Scroll down to Section 5001 of the CARES Act, and you’ll find that States, Tribal governments, and units of local government are allocated $150 billion. Tribes get $8 billion, D.C. and other extra-state territories get $3 billion. Uncle Sam divides up the remaining $139 billion among the states proportionate to population. But Section 5001 sets a minimum payment for each state:
IN GENERAL.—No State that is 1 of the 50 States shall receive a payment under this section for fiscal year 2020 that is less than $1,250,000,000 [CARES Act, Section 5001, enacted 2020.03.27].
Shall receive—I see no conditions on that mandate.
Plus, Section 5001 appears to say local governments don’t have to wait for their Governors to give any okee-dokee to qualify for CARES cash:
“(2) DIRECT PAYMENTS TO UNITS OF LOCAL GOVERNMENT.—If a unit of local government of a State submits the certification required by subsection (e) for purposes of receiving a direct payment from the Secretary under the authority of this paragraph, the Secretary shall reduce the amount determined for that State by the relative unit of local government population proportion amount described in subsection (c)(5) and pay such amount directly to such unit of local government [CARES Act, Sec. 5001, enacted 2020.03.27].
Recipients must provide certification to the feds that they are using the money consistent with the law’s intent, but that certification can be signed by the Chief of Executive of the local government unit—i.e., you, Mayor TenHaken! Mayor Allender! Mayor Schaun—oh, wait, my mayor didn’t sign this letter, because he’s too busy pushing gift cards and spinning his own unwise public statements—Mayor Caron! Mayor Corbett!…
Write that simple ceritfication, mayors, and the federal government will send you money on these conditions:
(d) Use of funds.—A State, Tribal government, and unit of local government shall use the funds provided under a payment made under this section to cover only those costs of the State, Tribal government, or unit of local government that—
(1) are necessary expenditures incurred due to the public health emergency with respect to the Coronavirus Disease 2019 (COVID–19);
(2) were not accounted for in the budget most recently approved as of the date of enactment of this section for the State or government; and
(3) were incurred during the period that begins on March 1, 2020, and ends on December 30, 2020 [CARES Act, 2020].
The reference to “the public health emergency” doesn’t refer to any combo of state and/or local declarations; it refers, like every other reference to “public health emergency” in the CARES Act, to “the public health emergency declared by the Secretary of Health and Human Services on January 27, 2020, with respect to the 2019 Novel Coronavirus.”
Urging Governor Noem to do more is all good and fine. But mayors, don’t wait for Kristi; claim your CARES cash right now!
This sounds like just what the smart and caring local governments in SD need!
Mr. H, I call French Math on your readings of the Act of Care. If these Mayors cannot understand the law bill good enough, then shame on them. Or perhaps their math is better and you are missing something, because 111 mayors cannot be wrong.