Whiteside County ordinance to enforce virus mitigations still in limbo

MORRISON – The same day Gov. JB Pritzker announced the state would be placed under more strict mitigations aimed at stunting an ongoing surge of the coronavirus, the Whiteside County Board Tuesday moved closer to, but stopped short of, codifying a method of enforcing those measures against noncompliant businesses.

That prolonged limbo was the result of two failed efforts made by board members Tuesday evening to provide the county with a legal means of holding businesses accountable for defying the Illinois Department of Public Health Coronavirus Resurgence Mitigations.

The first push — an anticipated motion from the executive committee to adopt the resurgence mitigations into the county health code — failed to materialize into a formal motion after board and executive committee chair Jim Duffy said Whiteside County State's Attorney Terry Costello "ran into some difficulties" when determining the legality of that strategy.

The second push — a floor motion by District 1 Democratic board member William Lee to adopt an ordinance empowering the health department and law enforcement to enforce the resurgence mitigations — had support from other board members, but could not be voted on because the proposed ordinance wasn't listed on the board's agenda.

"Here we are, our hospitals are begging us to do something and we essentially say we cannot govern ourselves," Lee said. "I disagree with that. I think we have a responsibility to govern ourselves."

Both attempts come as the number of coronavirus cases reported in Whiteside County since the beginning of the pandemic have exploded from 872 on Oct. 3 to 3,232 on Nov. 17, and as 35 of the 56 total deaths from COVID-19 in the county have come in the last month alone.

They also come days before every region in the state is set to move on Friday to a harsher set of guidelines to control the virus, which include closing a slew of businesses and limiting operations of others.

"I think the sooner we [vote on the ordinance], the better," said board vice-chair Glen Truesdell. "There's no question what's going on in our country right now. This disease is a run-away train. We need, at this level, to step-up to the plate."

Duffy said he agreed, but added that the earliest the 27-member board could act on the motion and the proposed ordinance was Friday because the board would need to give at least 48-hours public notice of a meeting.

It would also need time to draft the ordinance, one that for weeks has yet to manifest despite local mayors and Duffy himself calling on Costello to find a path for the county to put its foot down on businesses who defy the mitigations.

Costello has reasoned that the county, because it is a non-home rule municipality, must rely on existing state law or statutory agents to enforce the resurgence mitigations.

While a mechanism does exist through a set of IDPH emergency rules adopted this summer by a state legislative rule-making panel to enforce some guidelines, that mechanism cannot be used to enforce the resurgence mitigations because the prohibitions in the rules don't align with the prohibitions in the mitigations, according to Costello.

Using the emergency rules' system of county health department-issued warnings and orders to disperse to ensure businesses comply with the guidelines of the resurgence mitigations could place an unwanted liability on the county and risk future lawsuits from businesses, according to Costello's reasoning.

That legal interpretation was squarely challenged Tuesday by Lee, who owns a general practice law firm in Morrison.

"The state's attorney is supposed to guide us to the least risk possible, and I understand that and I thank him for that, and that's what he should be doing and that's what any good lawyer should do," Lee said. "But that risk is not the only part of the equation."

According to Lee, the county could enforce the resurgence mitigations under the authority of the Illinois Department of Public Health Act, which largely authorizes local health officials to act to control contagious or infectious diseases.

"Beyond the statute, the IDPH tells you what a thoughtful and risk-controlled health department would be doing," Lee said. "They set the standard for what a reasonable person would be doing. If we don't follow any of it, we are being unreasonable."

Although it hasn't been formally drafted, Lee said his proposed ordinance would feature a three-tiered structure through which the Whiteside County Health Department can first issue a written warning to a business that does not comply with the resurgence mitigations and then issue a $500 fine for a second violation.

A third violation would result in a 7-day closure of the business, under the proposed ordinance, which would sunset in Oct. 2021.

Lee added that the Whiteside County Sheriff's Department would have the authority to serve businesses the warnings, fines and closure orders, and would provide support to the health department.

That feature drew praise from Whiteside County Health Administrator Cheryl Lee, who said sending health department employees to investigate complaints of noncompliance unarmed is "dangerous."

"We have to have help from law enforcement to get this done," Lee said.

Sheriff John Booker largely supported the suggested ordinance, but expressed concern over infringing on the jurisdiction of local law enforcement agencies.

"If we're gonna do this, we need to make sure that it's for county jurisdiction and enforcement only," Booker said, adding that local police would need to provide support to the health department were it to enforce a guideline against a business within the limits of a city.

Costello after the board meeting said he wouldn't comment on whether he agreed with Lee's reasoning, and that he didn't have an evaluation of the legality of the proposed ordinance because he hadn't seen it yet.

Lee after the meeting said he only disagreed with Costello's legal interpretation.

“I just think it’s time for a creative reading of the statute and for creative solutions to this problem,” Lee said.