2021 | Government

County will have to reissue local orders on reopening restrictions, state says

County officials determining how orders will be handled locally

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This story was updated at 11:39 a.m. on March 11, 2021, to include additional details from a spokesman for Gov. Larry Hogan.

Montgomery County officials will have to reissue executive orders regarding COVID-19 and reopening restrictions under a change made in Gov. Larry Hogan’s recent executive order.

County officials spent Wednesday trying to determine what authority they have after Hogan announced Tuesday that the state will loosen restrictions on restaurants and other businesses, starting Friday.

In the past, jurisdictions could individually determine what restrictions would be in place and how to reopen, if they wanted to proceed more slowly than the rest of the state. A reference in the new order Hogan issued Tuesday appears to strike that type of local control, though Hogan and other state officials say local governments will still have the same authority.

The county will now have to reissue local orders so that they are based on local authority instead of citing the governor’s order as its authority, Mike Ricci, a spokesman for Hogan, confirmed Thursday morning.

Hogan said capacity limits for indoor and outdoor dining can be removed across the state, starting Friday at 5 p.m. Restrictions were also lifted for retail shops, gyms, houses of worship, and recreation facilities.

The order states that jurisdictions can determine whether to issue orders that are more restrictive than the governor’s order regarding businesses and other facilities, except schools, to close or modify operations. It also allows authorities to require individuals to remain indoors or refrain from congregating.

But right after that allowance, the order states that the provision on local jurisdictions’ powers “shall cease to be effective at 5:00 p.m. on March 12, 2021, at which time all Local Orders issued [under the provision] above shall become null and void.”

That language, which has not been in Hogan’s orders before, left jurisdictions across the state wonder how they should proceed and what they still can do to set local limits.

Ricci wrote in an email Wednesday morning that the governor’s order does not constitute a substantial reduction in local authority.

“If anything, it creates more clarity and transparency [about] what local emergency authorities are used to underpin local actions,” he wrote. “Those authorities are unaffected by the order.”

But Montgomery County officials are continuing to examine the change and have yet to conclude what this means for the county’s authority over reopening.

“I think we’re still hashing out exactly what it does mean for the local jurisdictions,” Barry Hudson, a spokesman for the county, said in a phone interview on Wednesday afternoon. “I don’t believe we have the full answer yet. But that’s what we’re working on. That’s what I know our lawyers and folks are working on now. I don’t think we have an exact answer to what authority we do have.”

Montgomery County, which was particularly hard hit during the pandemic, has consistently kept stricter limitations in place for businesses, particularly restaurants, and has loosened restrictions at a slower pace.

Some county officials reacted critically on Tuesday to Hogan’s plans for wider reopening, saying it’s too soon.

County Executive Marc Elrich was set to sign a draft executive order this week. But Hudson said that Hogan’s new order might change the contents of the county’s order, which is expected to change child care capacity and gathering limits.

Hudson said he expects clearer answers on where the county stands Thursday morning.

When asked whether some businesses might misinterpret the section in Hogan’s order nullifying local orders as a sign they can fully open their doors on Friday, Hudson said it is a concern for officials.

“That’s why we’re moving rapidly to figure out what our options are, so we can inform the public as to what the new parameters will be and the like,” Hudson said.

County Council President Tom Hucker said in a phone interview Wednesday afternoon that he had heard three versions of what the order could potentially mean for the county’s authority.

One was that the county now had no authority. Another was that some flexibility would be allowed. A third was that the county could act as a council or Board of Health for orders.

Hucker said that Hogan lifting restrictions was yet another surprise that his administration has announced during the pandemic.

“The announcement itself is incredibly disappointing and puts Marylanders at risk. It inevitably means our cases will rise and more residents will get sick and die. … The governor substituted his judgment for the top health officials’ in the nation,” he said.

Hucker said the decision was “arbitrary,” “shocking” and “reckless.”

“If [Hogan] would just open a mass vaccination site here, our case count would be dropping and we could open much more quickly,” he said.

Council Vice President Gabe Albornoz said in a phone interview Wednesday morning that Hogan’s announcement demonstrated “poor leadership” on not working more closely with local jurisdictions. County and school officials have repeatedly said they only find out about changes when Hogan announces them to the public, giving them no time to prepare.

“There has to be a better way moving forward in discussing these issues because it’s not helpful to anyone to be caught so flat-footed here,” Albornoz said.

He said the county’s health team was given some advance notice that there would be changes, but they did not know state officials would “go as far as they did.”

Albornoz said the actual language of the order has created confusion over local authority.
“That’s a bureaucratic mess that we now have to sort through,” he said.

Briana Adhikusuma can be reached at briana.adhikusuma@bethesdamagazine.com.