Updated: Mar 17
NOTE: This article has been updated to include information regarding the Georgia General Assembly ratification of Gov. Kemp's declaration of a Public Health Emergency. Additions to the article are printed in red. Black print is used for the original story. Green print is used to highlight sections of the original story that address topics that ConnectLocal has received multiple questions on in the past 24 hours. Blue text is linked to referenced documents.
The power to seize property, ban alcohol and firearm sales, and "control ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein' are among the powers granted to Georgia governors by the Official Code of Georgia Annotated in the event of a declaration of an emergency.
President Donald Trump, on March 13, held a press conference announcing his declaration of a national emergency. Shortly following Trump’s declaration, Georgia Governor Brian Kemp declared a statewide “Public Health Emergency.”
As of March 16, 48 states, seven territories, and the District of Columbia have declared some level of emergency status in the face of the spread of COVID-19, the disease caused by the SARS-CoV-2 coronavirus.
These declarations have freed up resources and made available funds set aside for dealing with “emergency” situations. In addition to opening the gate to various funding and aid sources, declarations such as these, on federal and sate levels, also include language set into the authorizing legislation that shifts various powers and rights to, or away from, specific members and/or entities of the government.
Neither City of Toccoa or Stephens County officials have made any official emergency declaration regarding the COVID-19 health crisis as of Monday, March 16. Information regarding city and county Code provisions in the event of such a declaration are included at the end of this article.
Yesterday, March 16, the Georgia House and Senate negotiated for more than eight hours before jointly agreeing upon a resolution to ratify Kemp’s declaration of a Public Health Emergency. No mention was made, during comments on either Floor, nor during interviews, taped negotiations or legislative reports, indicating that any legislator was in favor of withholding approval of the Governor’s declaration. The sole item of contention between the House Resolution and the Senate Resolution concerned the issue of renewal.
In all versions of the legislation under discussion during the day, the Public Health Emergency status would automatically expire at 11:59 p.m. April 13 – as declared in Kemp's Executive Order. The contention came from differing ideas on how that expiration date could be extended. The original Senate Bill specified that the Governor could unilaterally extend the emergency status. The House Bill allowed the Governor to extend the date past the April 13 deadline, but only by calling another special session of the House and Senate and receiving ratification of the extension from legislators.
"It is my concern, and other members' concerns, that if this outbreak is as devastating and bad as it potentially could be, that if the members of this body were to come down with this sickness and - at the conclusion of 30 days we were not able to bring the 3/5ths requirement together to achieve a special session and obtain the 91 votes to renew this emergency - that the emergency powers that are in the hands of the governor, he would not be able to utilize those under this scenario.” Rep. Bert Reeves (R) said during negotiations over the different versions of the Resolution.
The House vote on the adopted Resolution was 142 in favor, 1 opposed, 2 not voting, and 35 excused (not present). Rep. Chris Erwin voted in favor. The Senate vote was 47 in favor, 0 opposed, 0 not voting and 9 excused (not present). Sen. John Wilkinson voted in favor. The sole dissenting vote was cast by Rep. Matt Gurtler (R) of District 8 (Tiger). Gurtler, along with Wilkinson and 10 other candidates, qualified earlier in the month and will be campaigning for the US District 9 Representative seat currently held by Doug Collins.
"It gave unlimited power to the government, and I thought it set a bad precedent,” Gurtler told media representatives. “These emergency powers aren’t something we take lightly. And we needed a stronger check.” Gurtler had voted in favor of the initial House Resolution that called for legislative ratification of any extension of the emergency.
Although the final, adopted Resolution does allow for the Governor to unilaterally extend the Emergency, and does not require the legislature to reconvene and ratify any extension of the Public Health Emergency by the Governor, it does specifically state that “pursuant to Code Section 38-3-51 of the Official Code of Georgia Annotated, the General Assembly by concurrent resolution may terminate a state of emergency at any time.”
As a precaution, a special session of the legislature was scheduled for April 15.
Among the amended powers instituted by Kemp’s declaration of emergency is the power for the Governor to issue isolation and/or quarantine orders. Under Georgia law (O.C.G.A. § 31-12-4), general authority to order quarantines is, at all times, granted to the Georgia Department of Public Health (DPH) and all county boards of health. Only during times of a “public health emergency” does Georgia law grant that power to the Governor.
Rule 511-9-1-.03(2) of the Rules and Regulation of the State of Georgia provides that the DPH may “[i]solate persons infected with communicable diseases or conditions likely to endanger the health of others, until they are found to be free of the infectious agent or disease” and “[q]uarantine persons exposed to, or reasonably suspected of having been exposed to, a communicable disease, until they are found to be free of the infectious agent or disease.”
The declaration of an emergency allows the Governor “[t]o perform and exercise such other functions, powers, and duties as may be deemed necessary to promote and secure the safety and protection of the civilian population.”(O.C.G.A. § 38-3-51(c)(4).
The Executive Order issued by Kemp authorizing the Public Health Emergency includes, among others, the following directives:
All resources of the State of Georgia shall be made available to assist in the activities designed to address this emergency, control the spread of COVID-19 and aid recovery efforts.”
The Georgia Emergency Management and Homeland Security Agency shall activate the Georgia Emergency Operation Plan...”
The granting of temporary licenses to nurses and physicians in good standing in other states.
The federal rules and regulations limiting hours operators of commercial vehicles may drive are suspended to ensure that carrier crews are available as needed to provide emergency relief. However, “no motor carrier operating under the terms of this emergency declaration will require or allow an ill or fatigued driver to operate a motor vehicle. A driver who notifies a motor vehicle carrier that he or she needs immediate rest will be given at least ten consecutive hours off-duty before being required to return to service.”
Specified exemptions to truck height and weight limits are temporarily instituted.
“During preparation, response, and recovery activities for this Public Health Emergency, price gouging of goods and services necessary to support Public Health would be detrimental to the social and economic welfare of the citizens of this state, and thus Code Section 10-1-393..4 prohibiting price gouging, remains in effect.
Not addressed in Kemps Executive Order, but specified under O.C.G.A. Title 38, are additional, specified powers granted to the Governor following the declaration of an emergency, including:
(2) To seize, take for temporary use, or condemn property for the protection of the public in accordance with condemnation proceedings as provided by law;
(4) Commandeer or utilize any private property if he finds this necessary to cope with the emergency or disaster;
(7) Control ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein;
(8) Suspend or limit the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, and combustibles; provided, however, that any limitation on firearms under this Code section shall not include an individual firearm owned by a private citizen which was legal and owned by that citizen prior to the declaration of state of emergency or disaster or thereafter acquired in compliance with all applicable laws of this state and the United States.
Donald Trump, in his March 13 declaration labeling the COVID-19 health crisis a “national emergency,” invoked the Stafford Act. The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 authorizes the Federal Emergency Management Agency (FEMA) to coordinate the administration of disaster relief resources to the states in situations where the combined resources of state and local governments are not adequate to respond to an event. Federal assistance includes financial assistance as well as technical, logistical and other forms of assistance.
Disasters which can result in the use of the Stafford Act include major disasters, emergencies and natural disasters such as floods, fires or explosions. Pandemics and communicable diseases can be eligible for coverage under the Stafford Act.
Under the guidelines of the Stafford Act, a state governor must respond to an emergency event, executing the state’s emergency response plan, and then request the President to invoke the Stafford Act and issue a federal declaration of emergency. The president may declare an emergency without first receiving a gubernatorial request if the emergency involves an area of "federal primary responsibility" in which principal responsibility for response rests with the federal government because the emergency involves a subject area for which the United States exercises exclusive responsibility and authority.”
A Congressional Research Service report in 2015 estimated that the Stafford Act was enacted 56 times per year between 2000 and 2009.
Trump, prior to the March 13 declaration, approved several state requests for disaster declaration, including Mississippi (3/12), Wisconsin (3/11), and Tennessee (3/5), and on Thursday, March 12, Washington State’s governor Jay Inslee (D), voiced a request for assistance via the Stafford Act during a conversation with Vice President Mike Pence, and White House press representatives indicated late Thursday that Trump had decided to make the emergency declaration, but it was undergoing legal review.
Also on Thursday, March 12, Trump commented, during a meeting with Irish Prime Minister Leo Varadkar, “We have very strong emergency powers under the Stafford Act. And we are — we have it — I mean, I have it memorized, practically, as to the powers in that act. And if I need to do something, I’ll do it. I have the right to do a lot of things that people don’t even know about.”
Friday, March 13, in advance of his public national address announcing the state of emergency, the Trump issued a letter to Coronavirus Task Force leader and Secretary of Health and Human Services Alex Azar, U.S. Treasury Secretary Steven Mnuchin, Department of Homeland Security Acting Secretary Chad Wolf, and FEMA Administrator Pete Gaynor announcing his intention of proclaiming an official emergency determination under the Stafford Act.
“My decision to make this determination pursuant to section 501(b) of the Stafford Act is based on the fact that our entire country is now facing a significant public health emergency...As of the date of this declaration, 32 states, 3 territories, 4 tribes, and 1 tribal nation, spread geographically across our country, have declared a state of emergency as a result of the virus…Therefore, as an initial step, I hereby determine, under section 501(b) of the Stafford Act, that an emergency exists nationwide,” Trump stated in his letter. “In addition, after careful consideration, I believe that the disaster is of such severity and magnitude nationwide that requests for a declaration of a major disaster as set forth in section 401(a) of the Stafford Act may be appropriate...I encourage all governors and tribal leaders to consider requesting Federal assistance under this provision of the Stafford Act, pursuant to the statutory criteria. I stand ready to expeditiously consider any such request.” he concluded.
“A presidential declaration under the Stafford Act enables access to disaster relief assistance and funds as appropriated by Congress. The Disaster Relief Fund has several billion dollars immediately available for the emergency needs of state and local governments, but its use is limited to those purposes specifically authorized in the Stafford Act,” states the Association of State and Territorial Health Officials (ASTHO) website.
In addition to funding authorization, the Stafford Act also authorizes the following:
The secretary of the Department of Health and Human Services can be granted authority under the Social Security Act Section 1135 to temporarily waive or modify certain Medicare, Medicaid, SCHIP, and HIPAA requirements. (A public health emergency determination under Section 319 of the Public Health Service Act, must be issued, in addition to the Stafford Act or National Emergencies Act (NEA)
A Congressional Research Services report states, "Under the powers delegated by such statutes, the president may seize property, organize and control the means of production, seize commodities, assign military forces abroad institute martial law, seize and control all transportation and communications, regulate the operation of private enterprise, restrict travel, and in a variety of ways, control the lives of Citizens.
A Brennan Center For Justice report lists 136 statutory powers that become available to a president who declares a national emergency, including the waiving of confidentiality provisions and suspension of regulations on handling and testing of chemical and biological weapons, including the prohibition on testing such weapons on human subjects. A majority of the powers involve the minutia of personnel administration in the military branches.
Congress can terminate a declared emergency, but it requires a joint resolution
References in the City of Toccoa Code of Ordinances are limited to provisions for suspension of alcohol sales and provisions for emergency city expenditures by the city manager.
The chief of police, or his designee, may immediately suspend the sales of all alcoholic beverages licensed under this chapter in case of emergency, for the safety of the public or to investigate a crime, for a reasonable period of time. (Sect. 3-3)
In situations of emergency, which are defined as anything that would interrupt the normal operations of the city, the city manager is authorized to make necessary purchases, provided such purchases are ratified at the next commission meetings if they are over $5,000.00.(Section 2-146-7)
In Stephens County, a declaration of a statewide emergency by the governor, or declaration of an emergency by county officials, would allow the temporary suspension of any portion of the Codes governing Stephens County, as long as the emergency or disaster is “of such nature that immediate action outside the Code is required; suspension is consistent with the protection of the public health, safety and welfare; and such suspension is not inconsistent with any federal or state statutes or regulations.” (Stephens County Code 26-72)
O.C.G.A. 38-3-51 (2010)
38-3-51. Emergency powers of Governor; termination of emergency; limitations in energy emergency; immunity (a) In the event of actual or impending emergency or disaster of natural or human origin, or pandemic influenza emergency, or impending or actual enemy attack, or a public health emergency, within or affecting this state or against the United States, the Governor may declare that a state of emergency or disaster exists. As a condition precedent to declaring that a state of emergency or disaster exists as a result of a public health emergency, the Governor shall issue a call for a special session of the General Assembly pursuant to Article V, Section II, Paragraph VII of the Constitution of Georgia, which session shall convene at 8:00 A.M. on the second day following the date of such declaration for the purpose of concurring with or terminating the public health emergency. The state of emergency or disaster shall continue until the Governor finds that the threat or danger has passed or the emergency or disaster has been dealt with, to the extent that emergency or disaster conditions no longer exist, and terminates the state of emergency or disaster. No state of emergency or disaster may continue for longer than 30 days unless renewed by the Governor. The General Assembly by concurrent resolution may terminate a state of emergency or disaster at any time. Thereupon, the Governor shall by appropriate action end the state of emergency or disaster.