Elenbaas’ ‘illegal’ ordinance is still in the running; letter to the Whatcom County Council / Noisy Waters Northwest

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Screenshot of a portion of the emergency ordinance which Whatcom County Council Member Ben Elenbaas proposed at the 4/21/20 Whatcom County Council Meeting

April 24, 2020  Dena Jensen
Here is the email I sent tonight to the Whatcom County Council:
Dear Whatcom County Council:
I recently listened to your April 21, 2020 County Council and Health Board meeting and wanted to address your discussion of the emergency ordinance, “SUPPORTING A THOUGHTFUL APPROACH TO DOING BUSINESS IN WHATCOM COUNTY DURING THE COVID 19 PANDEMIC,” proposed by Council Member Elenbaas. https://whatcom.legistar.com/View.ashx?M=F&ID=8264036&GUID=09006792-35A3-43D4-AF30-ACD95D3197B2
This was brought forward as an emergency ordinance, which failed 5-2 with Council Members Elenbaas and Byrd in support, but with most Council Members, along with their legal counsel Karen Frakes, noting that the ordinance would have been illegal and in violation of Governor Inslee’s Stay Home Stay Healthy order. However after voting down the proposed emergency ordinance, County Council Members perplexingly went on to vote unanimously to have the same proposal introduced to be considered as a regular ordinance at the next Whatcom County Council meeting.

Within the whereas clauses of the proposed ordinance, Council Member Elenbaas stated that “Lowes, Home Depot, Target, Walmart, Costco and others have been open, and successfully implementing mitigation measures to slow the spread of COVID 19 while operating their business and providing goods and services.” Yet, during Council discussion, Council Member Elenbaas cast doubt a couple of times as to whether one of the big box stores currently doing business, namely Home Depot, was consistent or effective in their mitigation measures. He described, early in the discussion, a scene of people having reached over his shoulder for a hammer at Home Depot, and later in the discussion he mentioned that there hadn’t necessarily been consistency in mitigation measures at the stores that have been open, and indicated he thought small stores would have more to lose Tham [sic] someplace like Home Depot. To me, it does not make sense to make a case in written into an ordinance for opening more businesses by asserting that the stores that have been open have been successfully implementing mitigation, and then to move on to seemingly contradict that in a discussion in order to try to make a different point.
Also, it was distressing to hear Council Member Elenbaas focusing exclusively on big box stores in the ordinance, as if they are the only businesses allowed to be open, when many smaller-sized establishments, such as hardware stores, for example, are currently open. The governor’s order has not been to allow big box stores to be open and not small stores. It has been to allow stores selling certain types of essential products to be open. Meanwhile, not all small businesses are going to be wonderfully run businesses, with owners that will faithfully follow the Governor’s order and the Center for Disease Control’s guidelines.
We have no idea how many businesses will follow CDC guidelines and how many will not. If we were to guess, based on the behavior of people who attended the protests asking for businesses to be reopened this week, notably the one in Olympia, I would say there is a good chance we may have a situation where some business owners and their customers might openly fail to adhere to CDC recommendations to reduce the spread of COVID-19. According to video recordings at the event, the vast majority of advocates for opening businesses certainly did not follow those recommendations at the 2500 person protest in Olympia. I feel it is important to make sure first, that the stores that are currently being allowed to operate are following CDC recommendations, are effectively employing COVID-19 mitigation measures, and that we have plenty of tests and COVID-19 case tracers available and being activated. Then we can possibly move on to thoughtfully approaching doing additional types of business in Whatcom County.
Regarding an approach to business and economy after COVID-19, I am calling on all County Council Members to start envisioning and planning in their meetings for an economy that is much more diversified than the one we have had to date, that prioritizes and elevates the positions of workers to come into full partnership in enterprises that supply critical needs for our friends, neighbors, families, and life forms, along with community and environmental enrichment.
Far too many workers are being put in a position to either be out of work during this time, or to be threatened by the lax protective measures that their employers are offering. I read an article today, “Missouri Pork Plant Workers Say They Can’t Cover Mouths to Cough,” www.nytimes.com/2020/04/24/business/economy/coronavirus-smithfield-meat.html?smid=tw-share&fbclid=IwAR10cl7VcTCw79RW13dU_QDYfeNYYUFQr4zDQ3ohGy9k-U-bN6-GnO5Q0oQ, that remarked on the fact that even when the Center for Disease Control has toured facilities where there are COVID-19 outbreaks the agency is merely making “recommendations”: “The Centers for Disease Control and Prevention, which toured the South Dakota [Smithfield Foods] facility last week, recommended Thursday that Smithfield establish more social distancing barriers and possibly slow down the production line there to create more space between workers.” How can our medical expert agencies be allowing laborers to work in facilities that might only “possibly” take “recommended” measures to protect them? Our County needs to take measures to ensure we have ample oversight and enforcement capabilities regarding any businesses that are open or opening during this health emergency.
I additionally want to note that the “findings” in Council Member Elenbaas’ proposed emergency ordinance are not factual findings, as findings in ordinances seem to be widely presumed to be. MRSC’s document, “Local Ordinances for Washington State Cities and Counties” states: “Where certain facts are required as a prerequisite to an enactment, such as the acceptance of certain streets by way of dedication, such facts may be recited in the preamble or referred to in the body of the ordinance in what might be called factual findings. A statement in the body of the ordinance that the facts recited in the preamble are determined and found to be true by the governing body serves a distinct purpose.” http://mrsc.org/getmedia/44e20d0f-a536-473f-baac-bd7504323330/Local-Ordinances-For-Washington-Cities-And-Counties.pdf.aspx?ext=.pdf
A relevant part of the proposed emergency ordinance read, in part: “FINDINGS: the negative health effects and possible loss of life, from the economic hardships that COVID 19 has created possibly outpace those caused by the virus itself.” This possibility is being offered as a leading basis for enacting this ordinance when no study or data are offered to provide conclusive evidence that it is something that is true.
I send my gratitude to all of you who have been working hard and long hours, and I cheer you all on to reach to do better.
Dena Jensen
Birch Bay, WA
This email was sent to:
To: council@co.whatcom.wa.us ; Barry Buchanan <bbuchana@co.whatcom.wa.us>; Todd Donovan <tdonovan@co.whatcom.wa.us>; Carol Frazey <cfrazey@co.whatcom.wa.us>; Rud Browne <rbrowne@co.whatcom.wa.us>; Tyler Byrd <tbyrd@co.whatcom.wa.us>; belenbaa@co.whatcom.wa.us <belenbaa@co.whatcom.wa.us>; Kathy Kershner <kkershne@co.whatcom.wa.us>
Cc: Satpal Sidhu <ssidhu@co.whatcom.wa.us>; ccmail@cob.org <ccmail@cob.org>; mayorsoffice@cob.org <mayorsoffice@cob.org>
Sent: Friday, April 24, 2020, 07:30:33 PM PDT
Subject: Regarding County Council Member Ben Elenbaas’ proposed emergency ordinance at the 4/21/20 Whatcom County Council meeting