Arlington’s Goldilocks Dilemma: Over and Under reaching during the pandemic

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The Arlington County government has enacted a “Continuity of Government” ordinance to help it address the emergency presented by the COVID-19 epidemic.

All levels of American government need and have emergency powers. How, when and where government exercises those powers is a test of leadership. Will the government overreach, underreach, or get it right?

The Arlington County government’s response to the COVID-19 epidemic has displayed all three types of responses. There are many respects in which our government has gotten it right during this emergency. Expanded efforts to provide food to the hungry and deferral of the opening and operation of the Aquatics Center and Lubber Run Community Center are two examples. The Manager’s decision to postpone until 2021 the adoption of a 10-year Capital Improvement Plan (CIP) is another good decision.

But, in a number of other respects, our government has either overreached or underreached.

Overreach

A conspicuous example of overreach was the hastily-retracted effort by County government to use its consent agenda to try to enact an ordinance amendment that would have shut down several important aspects of Arlington’s long-range planning functions. As the Arlington Sun-Gazette explained, several eagle-eyed citizens and groups like the Urban Forestry Commission and Arlingtonians for Our Sustainable Future spotted the proposed amendment, raised an outcry, and forced the amendment to be deleted:

“But concerns indeed were raised, largely over a provision that potentially would have shunted aside the county government’s Long-Range Planning Committee and various review committees that consider the implications of new development.

“‘Proposing such overreach, especially opportunistically so during a deep public-health and economic crisis, favors those who most profit from land development above the public’s interest and fairness and transparency in government operations,’ local resident Rod Simmons said in an e-mail to County Board Chairman Libby Garvey. ‘It would effectively disenfranchise meaningful and required public participation in guiding land-use decisions… .’

“County officials got the message, removing that proposal from the emergency-powers declaration as it moved toward a final vote on May 19.”

Some residents continue to have justifiable concerns about the ordinance as it stands after that final vote. For example, local civic activist Suzanne Sundburg wrote to the County Board on May 19, noting in part:

The overly broad language of the ordinance makes it very difficult for the public to know precisely how broadly the County Manager may interpret his new powers to “temporarily suspend enforcement of existing provisions of County ordinances and conditions in use permits and special exception site plans” and to “temporarily modify or suspend application of administrative processes and procedures and other requirements. …

“Moreover, there appears to be no meaningful process or mechanism for the public to dispute or appeal the County Manager’s decisions in a timely fashion, even though the manager may be forced to grant relief that is unwarranted in certain cases simply because it falls into the same category as a decision legitimately made in another case.”

Other examples of County government overreach during the pandemic include the now retracted decisions to:

  • prevent County residents even from entering and passively using County parks
  • banning open-air farmer’s markets entirely

Underreach

Frederick Burr Opper‘s Alphonse and Gaston (1906).

“The phrase ‘Alphonse-and-Gaston routine,’ or ‘Alphonse-Gaston Syndrome,’ indicates a situation wherein one party refuses to act until another party acts first.”

One of the glaring examples of underreach in governmental use of its emergency powers relates to mandating the use of masks. In this instance, the federal, Virginia, and Arlington County governments all have been too halting and too timid.

At the federal level, it took the CDC far too long to develop its guidelines on the use of masks. But once the CDC finally did so in early April, both Governor Northam and the Arlington County government ought to have immediately seized the initiative and exercised their existing emergency powers to promulgate carefully tailored guidelines for when, where and how to mandate the use of masks. Both Virginia and Arlington bungled this leadership test.

Almost two months (!) after the CDC acted, Virginia finally announced on May 26 that it was going to mandate the use of masks effective May 29:

“The governor announced Tuesday that masks will be made mandatory in indoor public spaces, including businesses, starting Friday. The state’s mask requirement will have some exceptions, including for eating, children under 10, and those with health conditions that prevent them from wearing a mask.”

Better late than never for Governor Northam, I suppose. But Arlington could have issued a similar mandate in mid-April. Why did Libby Garvey play Alphonse to Ralph Northam’s Gaston? We may never know for sure, but one likely explanation is poor legal advice from the Arlington County Attorney based on his erroneous belief that the Dillon Rule prevented Arlington from acting on its own. If that is the reason, it’s wrong. In a health emergency like the present one, Arlington could have acted in April to enact an ordinance mandating mask usage under circumstances similar to those Northam has now belatedly enumerated. And if the poor legal advice from the County Attorney is not the reason for Arlington’s inaction, then Arlington’s failure to act lies solely in the laps of the County Board.

All the County Board did in the meantime was to decide to offer free masks. Board member Katie Cristol said “the idea … was to encourage rather than mandate mask usage—a carrot vs. stick approach.” That approach was wrong. The Board in April should have offered both a carrot and a stick approach to wearing masks.

Conclusion

Arlington holds itself out as making “world class” decisions. In the overreach and underreach examples described above, Arlington has failed to meet its own self-proclaimed standard of excellence.

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