State falsely claims second class boroughs have COVID-19 health powers

At his COVID-19 show Tuesday, Gov, Mike Dunleavy said that Attorney General Kevin Clarkson believes that second-class boroughs, such as those in Fairbanks, Mat-Su and Kenai, have health powers.

The attorneys in those boroughs, who are the experts, know that this is not true.

If Clarkson is actually giving this bad advice, he is telling Dunleavy what the governor wants to hear.

With this guidance, Dunleavy is free to keep insisting that there is no need for any unpopular statewide mandates about masks and crowd control. Local governments can take responsibility and issue whatever mandates are needed. This allows Dunleavy to stay above the fray, practicing political distancing.

What is telling is that neither Clarkson nor any other state attorney signed the document that purports to back up Dunleavy’s claim. Clarkson also forgot to put the name of his department on the sheet. The only name is that of the Alaska Municipal League, which didn’t write it.

The fatal problem with Clarkson’s claim is in the first sentence, apparently the work of the Pontius Pilate School of Law: “The determination of a local government’s legal authority to enact measures related to COVID-19 is a question for their legal counsel.”

Four sentences later, the document makes the sweeping claim that local governments can enact whatever measures they need to protect public health and safety. This is bad legal advice, but it’s the political advice that Dunleavy wanted. Not all local governments have these powers.

What is also telling is that the Alaska Municipal League says a different document represents its real position, which is that second-class boroughs do not have the powers that Dunleavy and Clarkson claim.

The boroughs can’t issue mask mandates or crowd-control measures because they do not have health powers. As Mat-Su attorney Nick Spiropolous put it at a recent meeting,  “you don’t get extra powers simply because you declare a disaster.”

Mat-Su reporter Tim Rockey asked Dunleavy Tuesday how the second-class boroughs could issue mandates on masks and crowd sizes if they don’t have health powers.

“It’s the view of our officials in the Department of Law, our lawyers, that the boroughs can implement health powers,” said Dunleavy.

Even though there is a disaster, second class boroughs that do not have health powers cannot enact them without holding a general or special election at which the power is given to the local government. This is not a simple matter, but one that requires a major change in second class borough operations.

Why have no state lawyers or Dunleavy signed the legal guidance that neglects to mention this detail?

I suspect the lawyers don’t want to embarrass themselves or be called out for peddling false information to give Dunleavy political cover.

In any case, Clarkson’s department should stop distributing a document that misrepresents the municipal league and misrepresents the law.

He should send out the more nuanced document created by the municipal league, which says that the only way for a second-class borough to “adopt a power related to health or safety is through a vote of the people.”

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