Health Officer’s Order Closing Schools Illegal and Unenforceable
By: Martin Bienstock, Bienstock PLLC
On July 31, 2020, the Montgomery County Health Officer issued a “Directive and Order regarding Private and Independent Schools” ordering all private schools in Montgomery County to close through October 1, 2020. The Directive and Order was issued without legal authority and is of no effect.
While Governor Hogan has issued an Executive Order authorizing local Health Officers to close facilities, the Executive Order requires Health Officers to conduct a case-by-case evaluation of each individual facility before closing it down. The Governor’s Executive Order did not authorize local Health Officers to make broad-based decisions affecting the entire Montgomery County private school sector.
In addition, Maryland law vests the authority to close institutions exclusively in the hands of the Governor. By law, this power is not delegable to local Health Officers. The Governor therefore could not authorize the local Health Officer to close all private schools because the law does not allow him to delegate that decision.
This defect is not curable. Even if the Montgomery County Executive and Legislature were to ratify the Health Officer’s Directive and Order, their actions would be of no effect. Only the Governor can close down all of the private schools in Montgomery County.1
A. The Governor Did Not Authorize the Local Health Officer to Close Down Schools on a Wholesale Basis.
In Executive Order No. 20-04-05-02, Governor Hogan delegated authority to local health officers to close local facilities, but only on a case-by-case basis. The Executive Order provides:
Delegation of Authority to County Health Officers. If an Authorized Health Official determines that a business, organization, establishment, facility, or construction site in his/her political subdivision (an “Unsafe Facility”) is unable or unwilling to operate in a manner that does not pose an unreasonable risk of exacerbating the spread of COVID-19 (including, without limitation, as a result of non-compliance with Social Distancing Guidance), the Authorized Health Official is hereby authorized and directed to issue such orders as may be necessary to:
a. require the Unsafe Facility to modify its operations to comply with Social Distancing Guidance; or
b. designate all or part of the Unsafe Facility as a zone in which the occupancy and use of buildings may be controlled, and prohibit or limit the movement of individuals and/or vehicles into, in, or from the Unsafe Facility, including without limitation, by closing the Unsafe Facility.
The text of the Executive Order is clear: the Health Official must determine that “a” facility is unsafe, and then designate the facility or parts of the facility as unsafe including by closing the unsafe facility.
The Governor did not delegate to local Health Officials the authority to determine wholesale that entire sectors were required to close. Instead, under the Executive Order, the Health Officer is required to review each school’s safety plan and determine whether the school can operate safely.
This interpretation is confirmed by the Governor’s most recent Executive Order, and by the Governor’s response to the Directive and Order. Executive Order No. 20-07-29-01, effective July 31, 2020, identifies a range of public and private institutions and describes the general rules for opening facilities within these categories. Read together with the Executive Order directed to local health officers, it is clear that the Governor intended that local Health Officers address specific issues on a case-by-case basis, while broad categorical determinations would remain with the Governor.
This interpretation is further confirmed by the Governor’s public statements in response to the Directive and Order, in which he stated that the decision as to opening schools should be made by individual schools and parents.
B. Maryland Law Vests the Wholesale Power to Close Institutions Solely with the Governor.
Subtitle 3a of Emergency Management Law is titled “Governor’s Emergency Health Powers,” and describes the Governor’s powers to respond to health emergencies such as the coronavirus. See § 14-3A-01(“catastrophic health emergency” includes a deadly virus). The Governor’s Emergency Health Powers provides that:
(d)(1) The Governor may order the evacuation, closing, or decontamination of any facility.
(2) If necessary and reasonable to save lives or prevent exposure to a deadly agent, the Governor may order individuals to remain indoors or refrain from congregating.
MD PUBLIC SAFETY § 14-3A-03 (West).
The law thus makes clear that only the Governor himself may order the closure of a facility. The language of the subtitle is crystal clear: “the Governor may order . . . the closing . . . of any facility” (emphasis added).
This language contrasts starkly with other provisions of Subtitle 3a (Governor’s Emergency Health Powers), which provide that the “Governor may order the Secretary or other designated official to [take certain actions.]” See, e.g, MD PUBLIC SAFETY § 14-3A-03)(“The Governor may order the Secretary or other designated official to: (i) seize immediately anything needed to respond to the medical consequences of the catastrophic health emergency.”) The contrast confirms that the legislature carefully chose the statutory language specifying that only the Governor and no other may order the closing of a facility.
The statutory language would therefore bar not only the local Health Officer from closing private schools, but the County Executive and Legislature as well. While the Governor’s most recent Executive Order vested political subdivisions with the authority to issue emergency orders, these powers could not include the power of closure because the Emergency Health Powers Act does not authorize the Governor to delegate that power.
This interpretation of the Emergency Health Powers Act need not interfere with the laudable goal of empowering local authorities to police and respond to local conditions. In most instances, local governments act reasonably and on behalf of the public health. In those instances, the Governor may adopt mechanisms for validating wholesale these public health and safety activities that might be non-delegable. But where, as here, local governments undertake ill-considered, political decisions to close facilities wholesale at the expense of minority constituents, the Governor might use his exclusive closure power under the law to withhold his approval.
The Governor empowered local Health Officers only to close individual facilities, not the entire private-school sector. If the Governor had delegated to local Health Officers the authority to close schools on a wholesale basis, the Executive Order would have exceeded his authority under the law and been void. Because the Governor holds the exclusive power to close facilities on a wholesale basis, the Montgomery County Executive and Legislature lack the authority to close private schools as well.
1 While we have concluded that the Order and Directive were unlawful, we do not advise schools or parents to act in defiance of the Order and Directive until such time as it is enjoined by a court or further guidance is issued by State or local officials.