Town ups the ante in dispute with governor over COVID-19 guidelines

Following a self-congratulatory opening interim town manager’s report, and Councilman Jacob Meza’s concurrence with Mr. Tederick’s assessment of what a fine job he, council and staff have done navigating the COVID-19 pandemic emergency management response, the Front Royal Town Council tackled a nine-item meeting agenda.

Sandwiching that agenda were two COVID-19 pandemic-related matters with perhaps long-term implications for the town. The first was a scheduled Public Hearing and vote on a Budget Amendment that would authorize the allocation of $1 million of General Fund reserves to a third-party non-profit organization for distribution “to eligible affected businesses and residents from the COVID-19 pandemic” – the second we’ll get to in two paragraphs.

We know you are tired of the computer screenshots too, so we delved into our Royal Examiner File Photos for a change of pace – Royal Cinema’s Rick Novak was one of three local business owners urging council to approve a local relief program on Monday. Royal Examiner File Photos/Roger Bianchini

It was not clear from the virtual meeting online discussion whether the relief proposal was a pared-back version of the previously discussed $1.5 million proposal, $1 million dedicated to businesses, to first pay back town utility bills or taxes, and half a million dollars to citizen relief on back town utility bills.

And while the proposal garnered the only pre-submitted public comments, three for (Rick Novak, Craig Laird, and The Kiln Doctor proprietors), one against as a flawed and incomplete plan (Linda Allen), the outcome was somewhat anti-climactic. On a motion by Jacob Meza, seconded by Vice-Mayor Bill Sealock, council unanimously tabled a vote until the next meeting. Prior to the tabling, Councilwoman Lori Cockrell reiterated distinct public feedback she has received against the idea while the Town’s tax revenue and reserve fund pictures remain murky due to COVID-19 impacts.

On the back end of the COVID-19 related open meeting agenda was the approval of a Resolution requesting Virginia Governor Ralph Northam to allow the town government to determine when to reopen businesses within the town limits.

A lengthy proposed Resolution on that matter read into the meeting record by Clerk Tina Presley was abandoned when Meza offered an amended version. Responding to a question from Mayor Gene Tewalt on the necessity of reading a second, lengthy Resolution into the record, Meza, with the assistance of Town Attorney Doug Napier, explained there were substantive differences that bore becoming part of the meeting record.

Councilman Meza, center, often takes a leadership role as council considers various key decisions. Here, pictured between Letasha Thompson and Chris Holloway last September, Meza defends council against public criticism.

“Mr. Meza is correct, I think there is a significant difference, and a matter of emphasis in particular that there are some concerns of the Constitutionality of Governor Northam’s latest executive order,” Napier told the mayor, adding that he did not want to get into a Constitutional analysis of those questions.

After some jockeying as to who would relieve the council clerk of having to read a second, lengthy – three pages in the original – legalese-styled Resolution, that task went to the interim town manager, though after the reading Meza appeared apologetic for not taking on the task himself.

Vice-Mayor Bill Sealock seconded Meza’s offering of the alternate Resolution.

Significant Differences

As Tederick began Meza’s alternate Resolution reading, the “significant differences” cited by Napier were immediately apparent. The first Resolution’s opening line that the Front Royal Town Council was “Requesting Governor Northam To Allow Town Council to Determine When to Open Up Local Businesses” was changed to the Front Royal Town Council “asserting its competence to determine when to open up local businesses”.

The two following paragraphs in the original citing geographical differences between the town and Warren County compared to more heavily hit metro areas as a basis for what initially was a request to the governor were deleted.

Two following paragraphs in the original citing a March 16 action by President Trump urging “people to avoid gathering in groups of more than 10 people” and a March 17 Declaration by Governor Northam and the Virginia State Health Commissioner following the president’s lead of the previous day, as well as urging “all Virginians aged 65 and over to self-quarantine” was also deleted.

Added was a graph noting that, “The Virginia Circuit Court for the City of Lynchburg has declared Executive Order (no number cited in Resolution) un-Constitutional, as it relates to the operations of an indoor gun range in the case of Lynchburg Range and Training versus Northam,” followed by observing that the U.S. Department of Justice of Trump-appointed Attorney General William Barr had joined the Lynchburg lawsuit “on behalf of a small church in Chincoteague” arguing that restrictions on church gatherings violate the U.S. Constitution “stating in part, quote, ‘There is no pandemic exception for the Constitution and the Bill of Rights,’ end quote,” Tederick read.

The Resolution adds that “the Town of Front Royal doubts the constitutionality of Governor Northam’s Executive Orders 53 and 55, and finds them irreconcilable with the freedoms of assembly, religion, and other rights enshrined in the Constitutions of the Commonwealth of Virginia and the United States of America”.

A graphic from a March 30 virtual council work session presentation regarding health insurance packages – could we all need expanded health care coverage if council missteps on its ‘assertion’ of authority to self-govern related to COVID-19 pandemic responses?

So the change in tone and direction from the originally proposed Resolution was, as noted by the town attorney, “significant”, changing the focus from citing geographical and demographic differences from severely health-impacted Virginia urban and metro areas and the six-jurisdiction Lord Fairfax Health District in which Front Royal and Warren County lie, as justification for a request; to an “assertion” of the Town’s authority to self-govern in what it now views as a Constitutional struggle over First Amendment rights, most particularly it would seem, freedom of religious assembly without health-guided regulations; and the right to target shoot within a confined area you pay for the privilege of doing.

Stabilized and Consistent

Valley Health employee Meza’s alternate Resolution then offered a series of local COVID-19 statistics to justify the town council’s “competence to determine when to open up local businesses” as opposed to the governor and state health department officials.

“Whereas according to the latest available numbers from the Lord Fairfax Health District of confirmed cases of COVID-19 in the county of which the town is part, there are few hospitalizations and one death. And furthermore, these numbers of hospitalizations appear to have been stabilized and have remained consistent for some time now,” Tederick read.

The one death is correct, having as noted in a previous Royal Examiner story been recorded within the past week, about two months after pandemic restrictions were put in place in Virginia. Also as we reported yesterday in our story about the “Great American Tailgate” Mother’s Day gathering in Front Royal, over the week between May 3 and May 10, Warren County’s cases rose about 40% (61 to 85); hospitalizations were up 200% (3 to 9), and our first COVID-19 death after two months of record-keeping was recorded, without distinction as to whether it was in or out of town.

Above, the Valley Health COVID-19 testing tent at its original N. Commerce Ave. location. It has since moved closer to the building and has seen a recent 40% rise in positive tests as the county total has risen to 85, as of yesterday, May 11. Below, the nasty little viral bug they are looking for.

While these numbers remain significantly lower than more hard-hit metropolitan areas, are they “stabilized” and “consistent”? Several questions bear asking as we pivot governmentally:

1 – If Front Royal re-opens will it be with state-ordered precautionary guidelines in place?

2 – Will social distancing standards be mandated by the Town or voluntary?

3 – Will we limit small business clientele to locals from our less affected health district, or will we attract visitors from our east (Fauquier, Prince William, and Loudoun Counties alone, a combined 4,336 cases, 87 deaths and 415 hospitalizations) and south (Harrisonburg City and Rockingham County, a combined 943 cases, 23 deaths, and 58 hospitalizations)? These are heavily hit areas likely to remain under tighter local restrictions with citizens also looking for a break from their pandemic-restricted reality.

And remember, all of the above statistics are accumulated within the limited testing availability that remains an issue across America.

Roll the dice

But recent history tells us we have a town council that likes to gamble.

Against the advice of a former town manager, town finance director, not to mention the administrator of the New Market Tax Credit program, also following Mr. Meza’s urging they gambled on a 30-year, 1.5% NMTC interest rate on construction of the new Front Royal Police Headquarters that the project didn’t even qualify for. Now they have chosen to gamble taxpayer dollars on attorneys, according to the Damiani & Damiani website prominently known for their auto accident casework, to convince a jury that the FRPD interest-rate gamble built on a verbal promise from the former EDA executive director wasn’t their fault.

Above, former Town Manager Joe Waltz; below, council and Interim Mayor Tederick at the September 23, 2019 work session. Just over two weeks after that work session Waltz submitted his resignation Oct. 9, effective Nov. 8.

Now it appears our elected town leaders have chosen to gamble that COVID-19 is a First Amendment political issue, rather than a pandemic health crisis issue. And even if admitted it is, at least partially a health crisis, perhaps one mismanaged in part by a state executive bureaucracy treading an unfamiliar medical landscape, should we here in the Northern Shenandoah Valley worry, or are we immune to predicted second or third waves of the virus’s spread?

Yes, we need to find ways to prop up our struggling local business community and citizenry and move toward re-openings and re-hirings as Rick Novak, Craig Laird and The Kiln Doctor owners urged council by submitted emails Monday. But shouldn’t that movement  come carefully, assuring both that those who need the support get it, rather than some who might simply try to profiteer off a crisis, as Linda Allen observed in her submitted criticism of the draft Town Recovery Plan; and that we do not jeopardize our own or the health of others as we try to get back to a more normal and financially solvent way of life?

And will the Town move forward based on accumulated medical data or a politically-driven stance focused on perhaps inconsistently or over-cautiously applied social distancing guidelines, particularly as they apply to religious and business activities?

Meza’s motion, seconded by the vice mayor, to approve the alternate Resolution questioning the Constitutionality of the governor’s Executive Orders 53 and 55, as read into the record was approved by a unanimous roll call vote.

See this discussion and council’s other business in the linked virtual recording. Also, see below the entire original and alternate Resolution drafts; and more on council’s other business in coming Royal Examiner stories:

This originally-drafted Resolution was NOT approved. The approved, Meza-presented alternate Resolution follows below this one. (Publisher’s Note: Misspelled words or grammatical errors were not added by the Royal Examiner, these Resolutions were taken verbatim from Town-provided documents.)

RESOLUTION
Of the Town Council of the Town of Front Royal, Virginia Requesting Governor Northam To Allow Town Council to Determine When to Open Up Local Businesses

WHEREAS, the Commonwealth of Virginia is a diverse State composed of many local jurisdictions which vary in size from large, densely populated metropolitan areas, to small towns and
villages, to rural, sparsely populated rural areas.

WHEREAS, the Town of Front Royal (the Town) and its surrounding jurisdiction, the County of Warren (the County), are both smaller, more rural, less densely populated parts of the
Commonwealth than many of the other parts of Virginia; and

WHEREAS, on March 12, 2020, Governor Ralph Northam declared a state of emergency in the Commonwealth of Virginia in response to the continued spread of COVID-19, and declared
the anticipated effects of COVID-19 to be a disaster as described in Section 44-146.16 of the Code of Virginia, 1950, as amended; and

WHEREAS, on March 15, 2020, Governor Northam announced a ban on all gatherings of one hundred (100) or more people statewide; and

WHEREAS, on March 16, 2020, President Donald Trump urged people to avoid gathering in groups of more than ten (10) people; and

WHEREAS, on March 17, 2020, Governor Northam and the State Health Commissioner issued a Declaration of Public Health Emergency addressing the need to increase social distancing to inhibit the spread of the COVID-19 virus, and the Governor, by press release, urged all Virginians to follow the federal guidance limiting non-essential gatherings of more than ten (10) people and urging all Virginians aged 65 and older to self-quarantine; and

WHEREAS, in response to the Governor Northam’s Orders and the Declarations so mentioned, Town Council of the Town of Front Royal (Town Council) was satisfied shortly thereafter in March, 2020, that the public health threat posed by COVID-19 constituted a real and substantial threat to health and safety of persons and property in the Town, and that a declaration of local emergency was necessary and essential to the Town.

WHEREAS, according to the latest available numbers from the Lord Fairfax Health District of confirmed cases of COVID-19 in the County, of which the Town is a part, there are but four hospitalizations and no deaths (no figures are available for the Town itself, but the Town has a population of approximately 15,240, while the County as a whole has a population of approximately 40,164). These numbers of hospitalization appear to have stabilized and have remained consistent for some time now; and

WHEREAS, there is located in the Town an excellent hospital, Warren Memorial Hospital, a member of the Valley Health system of hospitals and other top-of-the-line health care facilities and health care professionals serving the northern Shenandoah Valley, including the County, as well as parts of West Virginia; and

WHEREAS, as the Town Council’s declaration of local emergency in March, 2020, shortly after Governor Northam’s and the State Health Commissioner’s Declaration of Public Health Emergency were issued, Town Council has taken the COVID-19 outbreak seriously, and has reacted seriously to it ever since, urging social distancing, urging citizens to stay and work from home whenever and wherever possible (including its own Town staff); and

WHEREAS, most commercial businesses within the corporate limits of the Town are small ones, independently owned and operated, not franchises or affiliated with large national or international chains. Most of these business are owned and operated by people who do not have large financial resources and do not have the resources to stay closed indefinitely. Many, if not most, of these businesses are of the type which depend on being physically open to customers in order to survive; and

WHEREAS, these businesses have done everything in their power to comply with all Orders, Declarations, and recommendations so mentioned, whether or not they have the force of law, simply because the owners and operators are good citizens; however, many, if not most, are facing permanent closure if they are not able to open very quickly for some sort of business. Permanent closure for the owners and operators of these small businesses would mean financial ruin for them and their families; and

WHEREAS, the Town in 1989 lost its biggest employer, Avtex, which employed thousands of workers, causing the local unemployment rate to rise to very high levels, which in turn devasted the local business economy in Town. The physical site on which Avtex was located was highly polluted, and after it was cleaned up, it was designated a Superfund site by the Environmental Protection Agency, which has left the Town will a certain lasting economic stigma. It has taken the Town many years to rebuild its local economy, which has still not been fully accomplished: in fact, beginning in 2017, Town Council approved and embarked upon a Downtown Revitalization Plan, a part of which was applying for and being granted a Community Development Block Grant by the Virginia Department of Community Development, which was just started which the COVID-19 outbreak began; and

WHEREAS, just as the Town seemed to be turning the corner on its economic business future, the local Economic Development Authority, of which Town Council and Town staff is not a part, has become embroiled in legal and financial scandal, further jeopardizing the Town’s economic future. This scandal is still on-going and is the subject of multiple lawsuits and criminal investigations; and

WHEREAS, Town Council is comprised of local men and women who take their Town, their larger community, their Commonwealth, and the health and welfare, physical, mental, and economic, of the Town’s residents and citizens, seriously, and the Town Council members are quite able to assess local conditions carefully and in the best interests of their citizenry, as demonstrated by Town Council’s declaration of a local emergency almost as soon as Governor Northam and State Health Commissioner issued a State-wide Declaration of Public Health Emergency.

Likewise the citizens and residents of the Town have demonstrated remarkably good judgment and concern for their fellow citizens and resident by following said declarations to a “T”; and

WHEREAS, Town Council is of the opinion that State-wide public health pronouncements concerning COVID-19 as to what might be important and appropriate to large, more urban areas where large outbreaks of COVID-19 have occurred, and where the local economies might be more robust, are less appropriate and meaningful as they are to a small, more rural, less economic robust jurisdiction such as the Town; and

WHEREAS, Town Council is further of the opinion that in this day and age, with wall-to-wall news coverage on smart phones, computers, televisions, and radios, and based on the citizens and residents of the Town having conducted themselves in an exemplary and responsible fashion to the declarations with respect to the COVID-19 outbreak to date, the citizens and residents of the Town will continue to use discretion and good judgment going forward if restrictions are relaxed and local businesses in Town are allowed by Governor Northam and Town Council to reopen on a local basis; and

NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Front Royal that the Town Council respectfully requests the Honorable Ralph Northam, Governor of the Commonwealth of Virginia, a limited exemption from Executive Order Numbers Fifty-One, Fifty-Three, and Fifty-Five, and further Executive Orders and Declarations of the Commonwealth as they may relate to COVID-19 closing of businesses, social distancing, and social gatherings, only to the extent as they may relate to commercial businesses and enterprises within the corporate limits within the Town of Front Royal, so as to allow Town Council to determine when and how local business in the Town limits can safely reopen; and

BE IT FURTHER RESOLVED by the Town Council that if this Resolution is looked upon favorably by Governor Northam and Governor Northam grants said request, and if the number of COVID-19 hospitalizations or deaths in Warren County trend significantly upward while this limited exemption is in place, that Town Council will of its own accord take such action to restrict Town business activity as appropriate under the circumstances, and if necessary, request Governor Northam to impose such lawful actions to secure the public health as appropriate under the circumstances; and

FURTHER, BE IT RESOLVED that the Town Manger and Town Attorney are hereby directed to take all lawful, necessary, and appropriate actions to effectuate this Resolution.

Now the second Resolution that was adopted:

This Resolution was approved at the Regular Meeting of the Town of Front Royal, Virginia, Town Council conducted on May 11, 2020.

RESOLUTION
Of the Town Council of the Town of Front Royal, Virginia Asserting its Competence to Determine When to Open Up Local Businesses

WHEREAS, on March 12, 2020, Governor Ralph Northam declared a state of emergency in the Commonwealth of Virginia in response to the continued spread of COVID-19, and

WHEREAS, on March 15, 2020, Governor Northam announced a ban on all gatherings of one hundred (100) or more people statewide; and

WHEREAS, on March 23, 2020, Governor Northam issued Executive Order 53, banning public and private gatherings of more than ten people, shutting down certain business and other entities, deeming some functions “essential” and excluding others, including religious worship; and .

WHEREAS, on March 30, 2020, Governor Northam issued Executive Order 55, banning Virginia residents from leaving their house except for certain authorized purposes; and

WHEREAS, the Virginia Circuit Court for the City of Lynchburg has declared Executive Order unconstitutional as it relates to the operations of an indoor gun range in the case of Lynchburg Range and Training v. Northam; and

WHEREAS, the U.S. Department of Justice has joined a lawsuit in behalf of a small church in Chincoteague, Virginia, who is suing Governor Northam, arguing that the application of his Orders against the church violate the U.S. Constitution, stating in part, “there is no pandemic exception to the Constitution and its Bill of Rights;” and

WHEREAS, other establishments throughout the Commonwealth, including gyms, have
sued Governor Northam alleging that he has exceeded his authority under both the State and Federal Constitutions; and

WHEREAS, the Town of Front Royal doubts the constitutionality of Governor Northam’s Executive Orders 53 and 55, and finds them irreconcilable with the freedoms of assembly, religion, and other rights enshrined in the Constitutions of the Commonwealth of Virginia and the United States of America; and

WHEREAS, according to the latest available numbers from the Lord Fairfax Health District of confirmed cases of COVID-19 in the County, of which the Town is a part, there are few hospitalizations and one death, and furthermore these numbers of hospitalization appear to have stabilized and have remained consistent for some time now; and

WHEREAS, there is located in the Town an excellent hospital, Warren Memorial Hospital, a member of the Valley Health system of hospitals and other top-of-the-line health care facilities and health care professionals serving the northern Shenandoah Valley, including the County, as well as parts of West Virginia; and

WHEREAS, Town Council continues to take the COVID-19 outbreak seriously, and has reacted seriously to it since March, urging social distancing, urging citizens to stay and work from home whenever and wherever possible (including its own Town staff); and

WHEREAS, most commercial businesses within the corporate limits of the Town are small ones, independently owned and operated. Most of these business do not have the resources to stay closed indefinitely. Many, if not most, of these businesses must remain physically open to customers in order to survive; and

WHEREAS, these businesses have done everything in their power to comply with all Orders, Declarations, and recommendations so mentioned, whether or not they have the force of law, simply because the owners and operators are good citizens; however, many, if not most, are facing permanent closure if they are not able to open very quickly for some sort of business. Permanent closure for the owners and operators of these small businesses could mean financial ruin for them and their families; and

WHEREAS, beginning in 2017, Town Council approved and embarked upon a Downtown Revitalization Plan, a part of which was applying for and being granted a Community Development Block Grant by the Virginia Department of Community Development, which had just commenced when the COVID-19 outbreak began; and

WHEREAS, Town government is comprised of local men and women who take their Town, their larger community, their Commonwealth, and the health and welfare, physical, mental, and economic, of the Town’s residents and citizens seriously, and the Town government is able, and is better situated, to assess local conditions carefully and in the best interests of their citizenry.

Likewise the citizens and residents of the Town have demonstrated remarkably good judgment and concern for their fellow citizens and residents by faithfully following said guidelines and orders; and

WHEREAS, Town Council is of the opinion that a single statewide approach is inappropriate for Virginia, which contains rural localities like Front Royal that remain largely unaffected by the COVID outbreak; and

WHEREAS, Town Council is further of the opinion that the citizens and residents of the Town will continue to use discretion and good judgment going forward; and

NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Front Royal that the Town Council respectfully requests the Honorable Ralph Northam, Governor of the Commonwealth of Virginia, a limited exemption from Executive Order Numbers Fifty-One, Fifty-Three, and Fifty-Five, and further Executive Orders and Declarations of the Commonwealth as they may relate to COVID-19 closing of businesses, social distancing, and social gatherings, only to the extent as they may relate to commercial businesses and enterprises within the corporate limits within the Town of Front Royal, so as to allow Town Council to determine when and how local business in the Town limits can safely reopen; and

BE IT FURTHER RESOLVED by the Town Council that if this Resolution is looked upon favorably by Governor Northam and Governor Northam grants said request, and if the number of COVID-19 hospitalizations or deaths in Warren County trend significantly upward while this limited exemption is in place, that Town Council will of its own accord take such action to restrict Town business activity as appropriate under the circumstances, and if necessary, request Governor Northam to impose such lawful actions to secure the public health as appropriate under the circumstances; and

FURTHER, BE IT RESOLVED that the Town Manger and Town Attorney are hereby directed to take all lawful, necessary, and appropriate actions to effectuate this Resolution.

ADOPTED this 11th day of May, 2020,

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