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Commissioners prepare to take Wolf to court over shutdowns, lack of input

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Commissioners from Washington and Greene counties split along party lines in choosing to take on Gov. Tom Wolf over the shutdown of businesses in the wake of the novel coronavirus pandemic.

“These are extraordinary times that we’re in that call for a different way of doing business,” Commission Chairman Diana Irey Vaughan said Wednesday afternoon, citing what she called “extreme consequences on the citizens we represent.

“We would like to have better communication with the governor and the Department of Health. We’ve been frustrated from the beginning of this process with the lack of communication.”

The motion to take on Wolf in two court cases passed in Washington County with Irey Vaughan and Commissioner Nick Sherman, the Republican majority, voting in favor while Commission Vice Chairman Larry Maggi opposed.

In a live stream with reporters Wednesday, Wolf said he works with the legislative leadership every week on this topic and every day with legislative affairs.

“I’m not sure what we’re not doing,” he said. “I absolutely want to be transparent. If there’s something I’m missing, I’m always open to suggestion.”

Washington County officials, Irey Vaughan said, had been talking for months with health care providers and public safety officials “to balance the risks in health care with our economy.”

The reason behind closing what were deemed non-essential businesses and limiting the scope of others was to keep the health care system from being overwhelmed, which has not occurred, the commission chairman said, noting, “our hearts go out to those who have contracted the coronavirus and those who have lost loved ones.”

Commissioner Nick Sherman disagreed with the characterization of pitting him and his colleagues against the governor.

“This is really about a violation of our civil liberties and that’s the reason for the suit,” he said, citing progress made in the Mon Valley since the closing of steel mills in the late 20th century and revitalization efforts in towns like Washington and Canonsburg.

“The balance has to be about balancing risk and adhering to (Centers for Disease Control) guidelines in managing public health and risk,” Irey Vaughan said. She expects legislators and private business owners to join with the commissioners in a suit to be filed in federal court.

Sherman said a move by the governor from red alert to cautionary yellow for Southwestern Pennsylvania, predicted by Allegheny County Executive Rich Fitzgerald, would not head off a federal case.

Irey Vaughan noted the governor granted big-box stores permission to remain open while mom-and-pop stores selling similar merchandise were ordered to close.

State Auditor General Eugene DePasquale has promised to review what went into the granting of waivers for some businesses, but not others.

At their Wednesday teleconference meeting, Commissioner Larry Maggi, the lone Democrat, said, “If I thought a lawsuit would get our businesses open and our people back to work and our economy going, I would vote to sue the state and federal government in a minute.

“Unfortunately, most lawyers agree that this lawsuit will not be successful and will be a waste of time, money and resources…. I would try to do anything to get our businesses and economy open in a safe manner. This lawsuit, according to most lawyers, will not be successful and could or would take months or even years to be resolved.”

Addressing Maggi’s concerns about the cost of litigation to county taxpayers, Irey Vaughan said any work attorney Jana Phillis Grimm performed for a newly initiated suit, or the U.S. Supreme Court case Danny DeVito, a Republican state House candidate from Carnegie, and business owners have filed against Wolf would not cost county taxpayers anything beyond her compensation as Washington County solicitor.

In a late-breaking development Wednesday, the U.S. Supreme Court declined to issue a stay in the case of Danny DeVito and friends, so the governor’s emergency orders remain in effect.

DeVito’s appeal of a state Supreme Court ruling however, remains before the court, Irey Vaughan said Thursday morning, and a “friend of the court” brief is be filed next week.  

Also with a split vote, the Greene County Board of Commissioners voted to move ahead with sending the letter to Wolf, as well as joining the other southwestern counties in a lawsuit.

At their agenda setting meeting Wednesday, the commissioners voted 2-1 to put both measures on the agenda for today’s voting meeting. Blair Zimmerman, a Democrat and the board’s secretary, was opposed.

Explaining his “no” vote, Zimmerman said the county risks creating “bad blood” with the state government.

“I understand where everyone is coming from, and I have the same feelings inside,” Zimmerman said. “We’re looking for funding for many things, and I don’t want to be political. I want things to work for us down the road in the future.”

He added that a lawsuit would take years to move through the legal system.

“Yeah, you’re sending a message, but you’re not going to get any action on that,” Zimmerman said.

Vice Chairwoman Betsy McClure, a Republican, voted in favor of both actions along with Mike Belding, board chairman.

At the meeting, she said the decision to move ahead with sending the letter to Wolf is a show of support to the businesses of Greene County, who she says have expressed concern to her about being deemed “non-essential.”

“It’s very concerning how that is economically hurting our area,” McClure said.

According to figures released Wednesday by state Secretary of Health Dr. Rachel Levine, there are confirmed 51,845 cases of COVID-19 in Pennsylvania and 3,106 deaths. National and state statistics tend to reflect many more cases in densely populated urban areas than in rural communities, with some notable exceptions, such as meatpacking centers.

Lyndsay Kensinger, press secretary for Wolf, responded Wednesday morning to the previous evening’s email for comment on the draft of a letter commissioners from the two counties, plus Fayette and Butler, threatening legal action.

“The administration discussed the proposed reopening plan with state and local government representatives prior to the announcement, and just as the administration worked with local officials on the implementation of the state’s mitigation tactics and closures, a similar process will be implemented with reopening as outlined in the plan announced last week,” she wrote.

“All of this was outlined in the plan announced on April 24. The plan discussed the conditions we’d account for as well as the idea that we would need to remain flexible and respond as conditions or information changes” and provided a link to https://www.governor.pa.gov/process-to-reopen-pennsylvania/.

Staff Writer Scott Beveridge contributed to this story.

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