NC statewide elected leaders want more of a say in Gov. Cooper’s COVID-19 response

COVID-19 put State Treasurer Dale Folwell in the hospital. Now recovered, he’s been back at work in his office for several weeks, and his stamina is back, he said. Folwell wakes up at 5 a.m. every day without an alarm.

Like nine other statewide elected officials, he serves on the Council of State, which meets monthly.

Folwell and other members of the majority-Republican council do not find out the latest on Democratic Gov. Roy Cooper’s executive orders responding to the COVID-19 crisis during meetings or phone calls, save for one COVID-19 update meeting at his request, the Republican treasurer told The News & Observer in a phone interview Monday. Instead, he finds out at the same time as other North Carolinians — from Cooper’s news conferences.

Folwell would like that to change.

“The Council of State shouldn’t have to rearrange their schedule and know what’s going on in the state of North Carolina by watching a press conference,” Folwell said.

He’s not the only one on the council who is discontent. Lt. Gov. Dan Forest, a Republican who is running to unseat Cooper this fall, has sued Cooper over “shutdown” executive orders not receiving concurrence from the rest of the Council of State.

Republican Labor Commissioner Cherie Berry said Forest’s lawsuit, “if it’s successful, will finally determine what our responsibility is in the matter of concurrence.”

“There’s some confusion,” she said.

A meeting ends abruptly

The agriculture commissioner, attorney general, state auditor, insurance commissioner, secretary of state and superintendent of public instruction are all on the council with Cooper, Forest, Berry and Folwell.

Council of State meetings are usually held in person, and briefly, in the Dobbs Building. Since the coronavirus pandemic, the meetings have been held digitally only. Folwell said he’s measured the room where they usually meet, and found they could all sit distantly from each other, wearing masks, to conduct the meeting.

On Monday afternoon, he invited the rest of the council to meet in person at the treasurer’s office in Raleigh for their Tuesday morning Council of State meeting, even though the governor’s office said it would be a remote meeting. Folwell said he wanted a transparent discussion about the state’s coronavirus response.

On Tuesday, just Superintendent Mark Johnson took him up on the offer.

Cooper’s office responded Tuesday morning to questions about the remote meetings with a statement from spokesperson Ford Porter.

“States that reopened too fast are having to backtrack and Governor Cooper doesn’t want that to happen here,” Porter said via email. “Health officials still strongly recommend working remotely and for the safety of the public, the media and the members, the Council of State will continue its virtual meetings. Partisan politics must be put aside when responding to COVID-19,” he said.

Though Folwell said his goals for the meetings are not partisan, there is a partisan divide on the council. Cooper, Attorney General Josh Stein, Secretary of State Elaine Marshall and Auditor Beth Wood are all Democrats. The majority are Republicans: Folwell, Forest, Johnson, Berry, Agriculture Commissioner Steve Troxler and Insurance Commissioner Mike Causey.

Everyone attended the meeting on Tuesday. Most meetings end within an hour. On Tuesday, just before 10 a.m., Cooper said that because they finished the agenda items and he had another meeting, the Council of State meeting was adjourned. Asked by other council members if they were “going around” as usual to give updates, Cooper said there was no time.

Johnson, who had asked to share a Department of Public Instruction update, responded, “Wow.” Instead he briefly mentioned to the audience of Folwell’s Facebook Live recording of the meeting that he was sharing a letter he would now email to Cooper questioning the schools reopening plan that didn’t require masks on buses ridden by elementary students less than 6 feet apart.

In the letter Johnson later sent, he starts with: “Today’s Council of State meeting ended before each Council of State member could share updates or concerns from their departments.”

Berry told The News & Observer in a phone interview Tuesday afternoon that she was surprised that the meeting ended abruptly that morning. She didn’t have a labor department update to share, but had questions about other things, including schools reopening.

“A lot of our labor force depend on schools reopening, so they can go back to work,” Berry said.

Berry would like to know more about Cooper’s statewide COVID-19 response plans.

“We are asked questions across the state and it would be helpful to be in that loop,” Berry said. She thinks other Council of State members are frustrated because they don’t have much opportunity for input outside of the monthly meetings.

Dissent on reopening plans

After the first few months of COVID-19 response when there was little dissent, lifting statewide restrictions — how much and when — became a partisan issue.

Democrats supported the decisions of Cooper and the N.C. Department of Health and Human Services Secretary Dr. Mandy Cohen. Cohen is a Cooper appointee and part of the governor’s cabinet, made up of appointed positions rather than the elected ones on the Council of State.

But Republicans in the state legislature started proposing — and passing — reopening bills. First came bills to reopen bars and restaurant seating capacity, then gyms, then bowling alleys and skating rinks, then amusement parks and more. Cooper has vetoed what’s come across his desk. Some of the bills would have required concurrence from a majority of the Council of State on shutdown decisions.

During one Senate debate in June, Sen. Wiley Nickel, a Wake County Democrat, said that with a Republican majority on the Council of State, requiring concurrence means getting agreement from Forest. Nickel called it a “poison pill” and “nonstarter” in any reopening bill.

“I don’t trust Dan Forest and the Council of State. I trust our governor,” Nickel said, about orders related to coronavirus pandemic response.

During the same debate, Sen. Ralph Hise, a Spruce Pine Republican, reminded him that the Council of State offices are elected statewide by voters, just like the governor. Hise said that Cooper asked for the council’s concurrence on the order closing dine-in service at restaurants, though the governor claimed afterward that he did not need it under the state Emergency Management Act.

“He’s on shaky legal ground to say the least,” Hise said.

In public records obtained by The News & Observer, emails between Cooper’s office and the rest of the Council of State show that they were asked for concurrence on the restaurant order, with a majority responding “no” and questioning why the request came after Cooper made a public announcement that the order was coming.

Asked about proposed concurrence requirements during a recent news conference, Cooper said he thinks that the governor needs flexibility to act during the crisis. He said his office follows the law about when to get concurrence and when it is not required. He said the concurrence requirement in legislation would add bureaucracy.

Cooper said in a statement Thursday about his latest vetoes that the Emergency Management Act “clearly provides the Governor with statutory authority to direct the state’s response to a public health emergency that could affect the entire state’s population.”

“A devastating pandemic, like COVID-19, threatens the state’s people and warrants providing the state’s chief executive have the authority to manage the state’s response by placing prohibitions and restrictions on activities that threaten public health and safety. The legislators who foresaw such challenges were right to vest that authority with the Governor, so that government can respond quickly and on a statewide basis to emergencies as they evolve,” Cooper said.

Cohen and Emergency Management Director Mike Sprayberry have also told reporters that DHHS has the authority to make decisions based on “imminent hazard.”

What is the law?

Norma R. Houston is a lecturer in public law and government, and an expert in emergency management law, at the UNC School of Government.

The language about the governor’s authority that’s now in the state’s Emergency Management Act was first outlined in 1969 and has been updated as recently as 2012. The original language was in the state’s criminal code and arose out of the civil rights era, giving power during civil unrest to declare states of emergency, she said.

Houston pointed to two parts of the law the governor has cited as the justification for some of the orders not requiring concurrence. Under the heading of “Additional powers of the Governor during state of emergency,” the law says some things that require concurrence include the power to order evacuations and regulate and control the flow of traffic and the congregation of people in public places or buildings; as well as waive a provision of any regulation or ordinance of a state agency or a political subdivision which restricts the immediate relief of human suffering.

Cooper’s office sought and received concurrence on specific parts of his executive orders this spring that were covered under the law. In March, one of the concurrence requests was for loosening unemployment benefit requirements along with the restrictions on restaurants and bars.

Among the responses, both Folwell and Forest wrote back that the restaurant restrictions should be encouraged but not mandated. Forest, Johnson and Troxler wrote back that they concurred on unemployment but not on restaurants. Causey wrote that he thought it needed further discussion and said no about restaurants. But Causey wrote back later that after talking with Cohen, he concurred with both requests.

The same part of the law refers to additional powers “if the Governor determines that local control of the emergency is insufficient to assure adequate protection for lives and property,” and refers to a second part, “Power of municipalities and counties to enact ordinances to deal with states of emergency.” In that section, authorities can regulate businesses and alcohol.

“The plain language of the statute does not require concurrence from the Council of State when the governor exercises the authorities which are granted for cities and counties,” Houston said.

“But I can’t predict how a court might further interpret the statutes as a whole,” she said.

Houston, who previously served as chief of staff and general counsel to Democratic state Senate leader Marc Basnight, as Dare County attorney and assistant attorney general in the NC Department of Justice, said there is little case law in North Carolina when the courts have been called upon to interpret these statutes.

The coronavirus pandemic response is new ground for North Carolina.

“The authority for cities and counties contemplates the need to take action swiftly in the face of immediate threat of widespread harm. That’s the situation these statutes have been written for,” Houston said. She gave examples of hurricanes, tornadoes and potential emergency situations like a Shearon Harris Nuclear Power Plant meltdown. She said with those types of events, people are familiar with seeing state and local officials exercising related authority for short periods of time.

“The difference with COVID-19 is that we are still in a phase of responding. We are not yet to recovery,” Houston said. “We are still in response phase, and have been for months, and we don’t know when we will be out of the phase of immediately responding to COVID-19 and moving on to full recovery. So, we have not had a situation in our state before where emergency authorities have been exercised for this extended period of time.”

“I think that is why these emergency authorities — which have existed since the late sixties — are receiving a level of scrutiny which they perhaps in the past have not had. And because there has not been a need in the past to exercise these authorities over an extended period of time, we have very few court cases in which these authorities have been challenged,” Houston said.

For more North Carolina government and politics news, listen to the Domecast politics podcast from The News & Observer and the NC Insider. You can find it on Megaphone, Apple Podcasts, iHeartRadio, Stitcher or wherever you get your podcasts.