(Tumon, Guam) Gov. Lou Leon Guerrero Saturday night invoked her powers under the Emergency Health Power Act for the first time since the law was created 20 years ago.
"As you know, the authority under Chapter 19 of Title 10 given to the governor is broad," Civil Defense administrator Charles Esteves said.
Sen. James Moylan, baffled by the enormous powers the legislature gave the governor said, "While I have no problems with providing some emergency procurement and funding transfers to the chief executive, I think this archaic law needs to be updated so that any governor doesn’t just go in and seize private assets without an effective checks and balance system in place. This is where we should be concerned that potential abuse may exist and I will certainly review this once more to make recommendations for amendments.”
Early Saturday morning, Chamorro Standard Time, President Trump declared a national emergency and directed the governors of every state and territory to activate their respective emergency operations centers. Ms. Leon Guerrero did that, when she signed Executive Order No. 2020-03, declaring a state of public health emergency under the island's health code.
What does all this mean? Kandit breaks down the 11 sections of the executive order below:
Declaration of State of Emergency. A state of emergency pursuant to Section 19401 of Article 4, Chapter 19, Title 5, Guam Code Annotated is hereby declared for Guam as a result of the effects of COVID-19 on the island.
Section 1 breakdown:
Under §19401 of the Emergency Health Powers Act, the governor is declaring "the occurrence of a 'public health emergency,' which as defined and is applicable now means that COVID-19 poses a high probability of:
"A large number of deaths in the affected population;
"A large number of serious or long-term disabilities in the affected population; or
"Widespread exposure to [COVID-19] that poses a significant risk of substantial future harm to a large number of people in the affected population." - §19104(m)
This declaration grants the governor enormous powers to move resources, spend money, and use the Guam Police Department and, if she mobilizes them, the Guam National Guard, as she sees fit.
The declaration automatically terminates after 30 days, unless she renews it, or if by majority vote in the Guam Legislature the senators terminate the declaration.
Primary Public Health Authority. The Department of Public Health and Social Services, through its Director and with the approval of I Maga'hagan Guahan, shall be authorized to exercise all powers enumerated in Chapter 19 of Title 10, Guam Code Annotated.
Section 2 breakdown:
Under the law (§19403), the power to coordinate the public health emergency is vested in the director of the Department of Public Health and Social Services (in this case).
Under this section, the public health director has the power to coordinate the entire emergency operation from prevention to mitigation and recovery, to coordinate with federal and local partners, to organize the public information campaign, and to use both the Guam Police Department and the National Guard to enforce her unilateral decisions. Read (§19404):
"During a state of public health emergency, the public health authority may request assistance in enforcing orders pursuant to this Chapter from the public safety authority. The public safety authority may request assistance from the organized militia in enforcing the orders of the public health authority."
This is on top of the power the act enumerates to the governor directly:
The power to suspend any statute, regulation, rule, order, etc. that hinders her ability to deal with COVID-19
The power to use any available money or resource of the government necessary to respond to COVID-19
The power to transfer anyone or anything within the government to respond
The power to use the National Guard as she sees fit
The power to dispose of federal government resources for the emergency as she sees fit
The public health director - and in effect, the governor - has the authority to do whatever is necessary to control the transmission of COVID-19 on Guam. She also may order you to undergo a physical examination by anyone she deems fit to perform the examination, if she reasonably determines that you may be carrying or transmitting the disease. She may order your isolation or quarantine, vaccination and treatment. Under the law, if you do not isolate or quarantine, or if you disobey her orders, you may be guilty of a criminal misdemeanor. The law provides some guidelines that limit the ability of these officials to control your lives under isolation and quarantine.
They may also access your personal health information under this law, however, the law protects your information beyond that. These provisions are necessary for the expedient protection of the public.
Under the Emergency Health Power Act, if your civil rights are violated, or you die or are injured as a result of decisions made by the public health director, the governor, or anyone acting in their stead, all these officials are immune from prosecution or civil liability.
Geographic Areas Applicable to the Declaration. All geographic areas with confirmed cases of COVID-19 shall be applicable to this declaration. The authority of this Executive Order shall pertain to all of Guam.
Section 3 breakdown:
The law states that the governor must identify the geographic area(s) applicable to the declaration in her executive order.
Suspension of Statutes, Orders, Rules and Regulations That Prevent, Hinder or Delay Necessary Action to Respond to the Emergency. Pursuant to Section 19403(a)(1), of Chapter 19, Title 10 Guam Code Annotated, statutes, orders, rules and regulations that prevent, hinder or delay necessary action to prepare for or respond to this public health emergency, including but not limited to, purchases and hiring, are hereby suspended.
Section 4 breakdown:
If there are laws, rules, regulations, or existing orders that get in the way of the governor's ability to effectively manage the emergency, those provisions will be set aside.
Price Gouging. Effective immediately and throughout the duration of this Executive Order or within any time period allowed by law, whichever is longer, it shall be an unfair trade practice for any merchant or landlord to increase the price of any goods, services, or dwelling rentals on the basis of shortage anticipated or caused by this public health emergency.
Section 5 breakdown
None. This is self explanatory
Personnel and Procurement. Pursuant to Sections 19505 and 19803 of Chapter 19, Title 10, Guam Code Annotated, this Executive Order shall authorize, hiring, overtime and any procurement related to this public health emergency for all government of Guam agencies responding to the emergency.
Section 6 breakdown
§19403(2) states the governor may "utilize all available resources of the government of Guam, as reasonably necessary to respond to the public health emergency," and §19403(3) states she may "transfer the direction, personnel or functions of the government of Guam departments and agencies in order to perform or facilitate response and recovery programs regarding the public health emergency."
Under §19803 of the law, the governor can spend up to $600,000 in emergency funding through this executive order for the expenditures she incurs responding to the COVID19 situation. The reference to §19505 is procurement authority for the public health director to purchase and distribute "anti-toxins, serums, vaccines, immunizing agents, antibiotics and other pharmaceutical agents or medical supplies that it deems advisable in the interest of preparing for, or controlling, a public emergency, without any additional legislative authorization."
That section also authorizes the public health director to ration supplies, prioritize the distribution of supplies to doctors and other health care providers, disaster response workers, and mortuary staff.
GHS/OCD to be Lead Agency for Logistics. GHS/OCD shall be the lead agency for the logistical organization and direction of resources and procurement of any goods and services relative to this Executive Order. Any procurement pursuant to this Executive Order is not being used solely for the purposes of avoidance of the provisions of the Guam Procurement Law.
Section 7 breakdown
The law provides for the ability for the government to take control of materials and facilities (including communication devices, carriers, real property, fuel, food and clothing), clinics and hospitals, and roads and public areas. The law also says the government may "inspect, control, restrict, and regulate by rationing and using quotas, prohibitions on shipments, allocation, or other means, the use, sale, dispensing, distribution or transportation of food, fuel, clothing and other commodities, as may be reasonable and necessary to respond to the public health emergency."
The law prescribes powers for the safe disposal of infectious waste and human remains, the control of health care supplies, and to set up isolation and quarantine areas.
All of these require a tremendous amount of logistical coordination. The governor has placed this authority in the hands of Guam Homeland Security/Office of Civil Defense.
Authorization for Overtime. Authorization is given for the payment of overtime for non-exempt Government of Guam employees, to work in excess of forty (40) hours a week to mitigate and respond to the effects of COVID-19. The Office of Civil Defense Administrator is authorized to determine the eligibility of overtime expenditures resulting from work performed by the government agencies, and approval from the Bureau of Budget Management & Research shall be obtained prior to incurring any overtime or expenses. Failure to obtain prior approval shall be grounds for denying reimbursement.
Section 8 breakdown:
None. This is self explanatory
Documentation of Expenses. All departments and agencies are instructed to keep appropriate documentation on all emergency expenses authorized by this Executive Order for inspection by the Executive and Legislative Branches and by the Public Auditor of Guam, and in anticipation of federal disaster assistance approval by the President of the United States to be administered by any federal agency.
Section 9 breakdown:
This is the part of the executive order, where the governor demands accountability for every action taken that requires the use of resources. It is unclear whether these documents become public records during or following the emergency, but she does mandate that these documents be kept for the inspection of the executive and legislative branches, and by the Public Auditor.
Activation of Guam National Guard. The Adjutant General is authorized to issue active duty orders for the mobilization of such National Guard personnel and equipment as she may determine to protect life and safety, to continue essential public services, and to prevent undue loss and suffering.
Section 10 breakdown:
The resources the governor has available to her within the executive branch already are limited. She is authorizing the mobilization of the National Guard to help with the emergency response and to assist with the enforcement of orders throughout this order.
Section 11 simply is a standard severability clause.