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Challenging our public school district’s obedience of county ‘health’ ‘orders’: 14 CA government agencies REFUSE to answer BASIC questions of 60 day limit + ‘beyond control hospitals’ authority, yet claim forever dictatorial power (12 of ?)

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“In the beginning of a change, the patriot is a scarce man, and brave, and hated and scorned. When his cause succeeds, the timid join him, for then it costs nothing to be a patriot.” ~ Mark Twain’s Notebook, 1905

Perhaps the most helpful communication is a summary of events to now, an update, and preview of coming events (articles 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12).

Summary: The California “lockdown” to “flatten the curve and keep hospitals running” has lasted since March 3, 2020, despite statutory limit for emergency powers due to “beyond control” hospitals lasting only 60 days (§ 8627.5 California Emergency Services Act). Thankfully, our local hospitals have been in full control of patient numbers at all times.

As a NorCal public school teacher, I inquired to our district’s leadership and teachers’ union how their negotiated policy to “obey” county “health” “orders” is legal given the above reasonable limits to dictatorial authority.

Three emails were met with silence, then a fourth promising legal action was met with silence. I filed three legal complaints: federal, state, and a grievance for district violation of worker safety to support apparent dictatorial and illegal policy under direct threat of $1,000 fines and one year imprisonment.

Our union responded with support to ask the district, and to communicate indirectly that they wouldn’t pursue the grievance to arbitration because the working conditions were negotiated in good faith. The grievance process finished with district and union agreement the complaint didn’t qualify as a grievance.

I appealed the district’s answer to our community school board for what the district defined as a “written complaint.” From October 2 to December 18 2020 the district was silent, despite policy promising a response within 30 days of the board’s receipt. After this December 13 reminder they were out of compliance for a response, the superintendent answered that the school board upheld the district response without comment.

I also received a “non-response” after nearly 5 months from my complaint to the US Department of Justice regarding unlimited government. My complaint to the California Department of Fair Employment and Housing complaint was fielded with a phone call response in December, with their promise to follow-up, and silence since then.

In March 2021, our NorCal public school superintendent sent all staff an email citing county deaths from COVID nearing 1,300 with 80,000 “cases.” He also asked for our professional responses to an upcoming survey. I responded with three basic questions: how many of our staff and students have died of (not with) Covid, what is the data for overall county deaths given controversy over causes of deaths, and how many staff and students have been injured by vaccines. He ignored my questions twice, which I then shared with our school’s ~100 teachers with zero support and Social Science Department cognitive dissonance when directly asked.

I followed up with 14 CA government agencies, with all ignoring the 60-day limit of “emergency” authority I provided them from § 8627.5 of the California Emergency Services Act (ESA) except finally in April with CA Senator Glazer’s office stating the 60-day limit applied only to “non-safety” related orders. I hadn’t considered an American legislature would surrender forever dictatorial powers to a governor or elected officials without a time limit, as public recourse would be limited to recall (as is happening with Governor Newsom) or electing other legislators.

In follow-up to the more complicated question requiring “beyond control” hospitals, Senator Glazer’s office refused to answer.

Their answers are therefore intentional lies of omission to claim they answered a question about ESA to “justify” dictatorial government while leaving out any consideration of crystal-clear letter and intent to prevent dictatorial government past 60 days unless hospitals are “beyond control.”

These 14 CA government agencies claim dictatorial power to close businesses, stop social gatherings, force masking, force humans to forever remain no closer than six feet from each other, and with forever power until legislators or governor say otherwise, and while ignoring the requirement for “emergency powers” by sharing transparent and independently-verifiable hospital data.

Full report from the 14 CA government agencies:

CA Governor’s Office:
On March 19 I spoke with Ramon, who told me the Governor’s office couldn’t answer how emergency authority could last beyond the Emergency Services Act (ESA) 60-day limit, and that I should contact the Department of Education for an answer. I responded that someone in the governor’s office would have an answer to a governor’s emergency authority signed by the governor, and asked to speak to a supervisor. Ramon hung up on me. I called back and left a message on the recording I received. I called back again, and was on hold for 10 minutes before I quit. The following day I called back, was on hold for 15 minutes before I quit, then sent an email requesting to which I’ve received no response. Want to try? 916-445-2841.

CA Department of Education:
This office said they couldn’t answer, and asked me to contact their legal department. I did so, and was told they couldn’t answer, and I should contact the Executive Office. I did so, left two voice messages on consecutive days, and received an email on March 22 that they would get back to me. I responded with appreciation, received nothing back, and again followed with request for an answer on April 1. I received a response that CDE Communications would respond to me. After no response, I followed-up on April 7 and April 13 with still silence from CDE.

CA Department of Public Health:
833-4CA4ALL (1-833-422-4255). On March 19 I spoke with Donna then Shane, who both told me that they couldn’t answer my question, and to email Safe Schools for All. I did so on that day, and received this non-answer:

Dear Carl,

This message is in response to your recent inquiry with the California Department of Public Health. Below please find the most current information for your inquiry. Please note that throughout COVID-19 information is rapidly updating, please check back frequently for new information.

Unfortunately, we do not have an answer available at this time. However, there are a couple of resources where you may be able to find more information. One is the California Coronavirus Response website, which is frequently updated with the most current information. The other resource is your local 2-1-1. Each county has its own 2-1-1 service, which can connect you to a wide variety of local services and information. You can reach them any time by simply dialing 2-1-1 from your phone.

The pandemic has brought with it many challenges and disruptions to “normal life”. Rest assured we are working hard during this rapidly changing environment to bring you the most up to date information available. We stand with you in these difficult times and will continue to be a resource for all questions related to COVID-19.

Thank you for contacting the California Department of Public Health to share your questions and concerns. If you have further inquiries, please contact us at 833-422-4255 or visit www.covid19.ca.gov.

DO NOT REPLY TO THIS MESSAGE

CA Senate Education Committee:
I called and was directed to email Lynn Lorber, Chief Consultant and Staff Director. I emailed on March 15, followed-up three times, and received this response of claimed ignorance on March 27, with my answer following:

As I’m sure the district’s counsel knows, they need to ask the Governor’s office. This is not within the jurisdiction of the Senate Education Committee.

**

The governor’s office refused to answer. I called: the governor’s representative (Ramon wouldn’t give his last name) told me to ask the Department of Education. I said there must be somebody at the governor’s office who can answer regarding what the governor signed as his emergency declaration and powers, and asked to speak to a supervisor. Ramon hung up on me. I called back three times; spent 25 minutes on hold and left a phone message that hasn’t been answered.

I don’t know what the district counsel knows because the district says they must follow orders, and ignore my 9-time-repeated question about the 60-day limit, and simply repeat that they are order-followers. I think district counsel knows the orders are illegal and is unwilling/unable to say.

You’re one of 12 government agencies I’ve contacted. None have an answer.

Aren’t you curious to find out?

If the answer is what it appears in the ESA, then the authority expired 10 months ago, and we’re witnessing illegal dictatorial government.

Thank you for responding; I welcome your further input for a definitive answer.

**
Ms. Lorber apparently has no further curiosity or input, as she did not respond.

CA Assembly Education Committee:
I called and was referred to Tanya Lieberman, Chief Consultant, who I emailed. On March 16 she responded (below), and five follow-up emails (one from Tanya) has not provided an answer.

Hi Carl,

I’m afraid that I don’t have the background to answer this question, but I have shared it with a colleague who is familiar with the relevant statutes and will let you know when I hear back.

If we do have any information for you I would stress that this does not constitute legal advice. We might be able to point you to Legislative intent or relevant case law, but we are cannot predict how the executive branch or courts might interpret the law.

CA Congressperson Mark DeSaulnier:
I called his office, who responded they didn’t have an answer, and suggested I call my CA Senator and Assemblyperson.

CA Assembly Rebecca Bauer-Kahan (where I live):
I left a message on March 26, 29 30, and also emailed 3-30. After leaving a message at the Sacramento office on 3-31 rather than the district office, I called back on 4-1 leaving another message. On 4-2 I received the following response, which I challenged, then escalated to Chief of Staff Jordan Curley, who finally answered in agreement for dictatorial “emergency” government while ignoring questions of limits. He also referred me to ask the County Counsel, who flatly told me they do not answer to constituents.

Here are those “official” avoidances of the one question topic that was the entire purpose of my communication:

On Fri, Apr 2, 2021 at 6:34 PM wrote:
Carl,

You have asked about legal questions about the Governor’s authority to issue emergency proclamations, as well as questions about what actions the counties can take under that authority. The CA Emergency Services Act is part of CA codified statutory law. It gives the Governor broad emergency authority in the event of natural, man-made or state of war emergencies, such as the Covid-19 pandemic, that imperil the lives of CA citizens. See CA Government Code section 8550. CA’s Governor has the authority under the Act to proclaim a “state of emergency.” See CA Government Code section 8625.

On March 4, 2020, Governor Newsom declared a state of emergency in CA in response to the first death in CA of a patient with Covid-19, which declaration is still in effect now. A copy of that Proclamation is attached here for your reference. You may review all of the Governor’s archived proclamations over the past 12 months, by clicking on the individual news release announcing each proclamation – each news release contains a link to the proclamation itself: https://www.gov.ca.gov/category/press-releases/emergency directives.

Thanks,

Office of Assemblymember Bauer-Kahan
**

Carl Herman

Apr 5, 2021, 6:09 AM (13 days ago)
to Matthew.Wright, cherman
pastedGraphic.png
Thank you for your response. I asked specifically where the “emergency” “ordering” authority is past the 60 days in ESA, which your response ignores:

§ 8627.5. Authority of Governor; nonsafety regulations on delivery of food products; pharmaceuticals; and other emergency necessities; form of orders and regulations; effect; duration
(b) The orders and regulations shall be in writing and take effect immediately on issuance. The temporary suspension of any statute, ordinance, regulation, or rule shall remain in effect until the order or regulation is rescinded by the Governor, the Governor proclaims the termination of the state of emergency, or for a period of 60 days, whichever occurs first. (emphasis added) ~ California Emergency Services Act

Next question to demonstrate the county’s emergency orders are lawful is the requirement under ESA 8558 (b), which is what all Californians were told almost a year ago: lockdowns and masks were to “flatten the curve” to “keep our hospitals operational.” According to unanimous testimony our teachers and community members have reported, all hospitals have remained fully “in control” (I’ve asked ~20 local doctors, nurses, and other professionals).

Q: What is the transparent hospital data demonstrating “beyond control” hospitals to justify “emergency orders”?

Please do not cite positive test results; that is not “beyond control” hospitals. Please provide comparative data that usual flu seasons cause temporary, planned, and managed spikes for hospitals.

Citing this verifiable data is required to demonstrate ordering authority. Without this data that anyone can verify, there is no ordering authority under ESA.

I write as a resident and Committee Chair at Hayward High School reporting back to district leadership, teacher union leadership, and all our school’s teachers. As you may know, our students have about twice as many failing classes compared to normal in-school classes. You may also know this:

Definitions:

The Governor is hereby empowered to proclaim a state of emergency in an area affected or likely to be affected thereby when:
(a)?He finds that circumstances described in subdivision (b) of Section 8558 exist; ?and either
(b)?He is requested to do so (1) in the case of a city by the mayor or chief executive, (2) in the case of a county by the chairman of the board of supervisors or the county administrative officer; ?or
(c)?He finds that local authority is inadequate to cope with the emergency.
~ California Code 8625

“State of emergency” means the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons and property within the state caused by conditions such as … epidemic, … which, by reason of their magnitude, are or are likely to be beyond the control of the services, personnel, equipment, and facilities of any single county, city and county, or city and require the combined forces of a mutual aid region or regions to combat … ~ California Code 8558 (b)

emergency: a sudden, urgent, usually unexpected occurrence or occasion requiring immediate action.

WHEREAS I find that conditions of Government Code section 8558 (b), relating to the declaration of a State of Emergency, have been met;…
~ Proclamation of a state of emergency, Governor Gavin Newsom, March 4, 2020

Thank you,
Carl Herman
**

Carl Herman

Apr 8, 2021, 12:57 PM (10 days ago)
to Matthew.Wright, cherman
pastedGraphic.png
I am a San Ramon resident and committee chair for HUSD getting information to report back to district leadership, teachers’ union leadership, and all the teachers at my school.

You are ignoring BASIC and OBVIOUS questions over threatening everyone in the county over “health” “orders” with $1,000 fines and a year imprisonment.

I will complain to your Chief of Staff tomorrow morning if we do not receive an intelligent response before then.

**
On Thu, Apr 8, 2021 at 4:33 PM Wright, Matthew wrote:
Carl,

In addition to the information I had provided the order has not ended and the State remains in a State of Emergency. If you have additional questions you can reach out to the Governor’s Office as I believe they will be more helpful. https://govapps.gov.ca.gov/gov40mail/

Thanks,
Matthew Wright

**
Hi Jordan,
I’m a committee chair with Hayward High School to report back to our district leadership, teachers’ union leadership, our teachers, and as a case study for our 12th Grade US Government students regarding the biggest change in education any of us have ever experienced with health orders under threats of $1,000 fines, imprisonment, and permanent removal for staff or students who disobey. As you may know, school districts are suffering with ~twice as many failing students, including ours.

I’m escalating to you because Matthew Wright has twice refused to answer our simple and obvious question about the legality of those health orders.

The California Emergency Services Act (ESA) was invoked by Governor Newsom in March 2020, with the central written and talking point to “flatten the curve” to keep hospitals operational. Testimony we’ve received from ~20 health care professionals is unanimous that all our local hospitals have been fully operational with patient numbers, with no challenges to hospitals’ normal procedures that includes some spikes in activity during flu season. Therefore, we’re contacting 12 CA government agencies for comprehensive and verifiable data, as ESA requires “beyond control” hospitals to authorize emergency orders.

So far, we’ve received stunning obfuscation, no answers, and lies of omission and commission. The governor’s office REFUSED to respond (that part of our report is below to encourage your response). So far, our US Government Seniors will find no evidence of limited government under clear and fair law, but apparent illegal dictatorial orders substituting problematic “cases” rather than the legal requirement of “beyond control” hospitals.

Q: What is the transparent hospital data demonstrating “beyond control” hospitals to justify “emergency orders”?

Please do not cite positive test results; that is not “beyond control” hospitals. Please provide comparative data that usual flu seasons cause temporary, planned, and managed spikes for hospitals.

Citing this verifiable data is required to demonstrate ordering authority. Without this data that anyone can verify, there is no ordering authority under ESA.

(concluded with the usual definitions)
**

Herman, Carl

Apr 13, 2021, 10:23 AM (5 days ago)
to Carl, Matthew, Carl, jordan.curley

Jordan, may we please have a response?

After 6 weeks of contacting 12 CA government agencies we’ve received zero hospital data. It seems to us, so far, that “flatten the curve” to “keep hospitals operational” was a lie, with problematic “cases” substituted for operational hospitals. This is also a lie of omission to fail to tell Californians about hospital data that is transparent, comprehensive, and comparing data from the last year to historical averages.

It also seems to us that the “emergency” “health” “orders” are illegal because according to unanimous professional testimony, our hospitals are fully within their operational capacities that include contingencies for periodic spikes in patients with ordinary flu. ESA requires emergency orders to be ended asap.
**
Curley, Jordan
Apr 14, 2021, 9:07 AM (4 days ago)
to me, Carl, Matthew, Carl
pastedGraphic.png
Dear Mr. Herman,

Thank you for your recent correspondence. As you had requested, our Field Representative Matthew Wright provided you with information about the state statutes which are the source of the Governor’s authority to have proclaimed a state of emergency in California on March 4, 2020. This authority is well established and has been upheld by the courts. As an Assembly office, we are unable to provide you with further legal assistance or documents regarding the interpretation of specific statutes in the California Government Code. Should you seek information as to Alameda County’s legal authority during a state of emergency, we would refer you to County Counsel’s office regarding those issues. This will conclude the services our office is able to provide at this time upon this matter.

Best Regards,
Jordan
**

Alameda County Counsel:
I left a phone message of 4-14, and followed-up on 4-19. Senior Deputy County Counsel Andrea Weddle called back to inform me that their office does not respond to constituents’ questions.

This means she does not already have an answer, and no curiosity. It also means that CA Assemblyperson Bauer-Kahan’s Chief of Staff Jordan Curley added another layer of incompetence and/or deception to his “response” to a constituent and school leader’s questions.

CA Senator Steven Glazer (where I live):
On March 26, I spoke with George, who assured me that he’d get an answer to my question, and that certainly nobody at that office would do anything illegal. He called back and left a phone message affirming that the governor’s emergency powers derive from ESA, and cited the passages he claims gives authority: 8558 (“beyond control” hospitals), 8626 (emergency proclamation in writing and immediately effective), 8629 (terminate emergency at earliest possible date) He ignored 8627.5 (see below) which limits powers to 60 days. Because I just missed his call, I called back with the question of 60 day limitation, and was promised an answer either over the phone or in an email. After two more business days of my follow-up phone messages, I did not have an answer. My second voice message concluded something like this, “George, if you choose not to answer the 60-day power limit, I’ll report back to our district the information you gave that ignores that limit. Because I specifically cited that limit, I think people will conclude the Senator’s office issued a lie of omission by ignoring it.”

I called the Sacramento office on 3-31 rather than the district office, and left a message. On 4-1 I left another message with an email. If I receive no answer, I’ll request to speak with the Chief of Staff because the local office lied in omission to me, and are ignoring phone messages despite my representing a 20,000 student school district.

§ 8627.5. Authority of Governor; nonsafety regulations on delivery of food products; pharmaceuticals; and other emergency necessities; form of orders and regulations; effect; duration (emphasis added)

(b) The orders and regulations shall be in writing and take effect
immediately on issuance. The temporary suspension of any statute, ordinance, regulation, or rule shall remain in effect until the order or regulation is rescinded by the Governor, the Governor proclaims the termination of the state of emergency, or for a period of 60 days, whichever occurs first.

George followed with the interpretation that the 60-day limit applies to “non-safety” orders only, and “safety” orders are unlimited in duration until stopped by governor or legislature.

I followed with this:

“Thank you, George; yes, that clarification is what we are looking for. Our mistake was assuming legislative intent would limit all emergency powers.

Next question to demonstrate the county’s emergency orders are lawful is the requirement under ESA 8558 (b), which is what all Californians were told almost a year ago: lockdowns and masks were to “flatten the curve” to “keep our hospitals operational.” According to unanimous testimony our teachers and community members have reported, all hospitals have remained fully “in control” (I’ve asked ~20 local doctors, nurses, and other professionals).

Q: What is the transparent hospital data demonstrating “beyond control” hospitals to justify “emergency orders”?

Please do not cite positive test results; that is not “beyond control” hospitals. Please provide comparative data that usual flu seasons cause temporary, planned, and managed spikes for hospitals.

Citing this verifiable data is required to demonstrate ordering authority. Without this data that anyone can verify, there is no ordering authority under ESA.

As you may know, our students have about twice as many failing classes compared to normal in-school classes. You may also know this:

pastedGraphic_1.png

Definitions:

The Governor is hereby empowered to proclaim a state of emergency in an area affected or likely to be affected thereby when:
(a)?He finds that circumstances described in subdivision (b) of Section 8558 exist; ?and either
(b)?He is requested to do so (1) in the case of a city by the mayor or chief executive, (2) in the case of a county by the chairman of the board of supervisors or the county administrative officer; ?or
(c)?He finds that local authority is inadequate to cope with the emergency.
~ California Code 8625

“State of emergency” means the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons and property within the state caused by conditions such as … epidemic, … which, by reason of their magnitude, are or are likely to be beyond the control of the services, personnel, equipment, and facilities of any single county, city and county, or city and require the combined forces of a mutual aid region or regions to combat … ~ California Code 8558 (b)

emergency: a sudden, urgent, usually unexpected occurrence or occasion requiring immediate action.

WHEREAS I find that conditions of Government Code section 8558 (b), relating to the declaration of a State of Emergency, have been met;…
~ Proclamation of a state of emergency, Governor Gavin Newsom, March 4, 2020”

**
George:

Mr. Herman,

At this point I’m going to share your comments with Senator Glazer and forward them to the administration.

I recognize your desire to challenge the administration so that the orders can be lifted – orders that include provisions meant to speed the delivery of aid, resources, and monies to communities in order to combat the COVID-19 challenge.

I would encourage you to seek legal counsel so that the courts can remedy the issue in your favor. Legal counsel would also have the resources to request the information you desire from the administration.

George A. Escutia, Jr.
District Director
Office of California State Senator Steven M. Glazer
7th Senate District
**
me:

Among the “whereas” section that further obfuscates, “beyond control” issues are only for PPE requirements ordered by the state, right?

So hospitals are universally or at least in our local counties within their control to treat patient numbers, as unanimous medical testimony tells us, right?

We don’t need legal counsel. We’re asking for verifiable objective proof of lawful orders when our county health departments threaten us with fines, imprisonment, and that our school districts will remove staff, students, and community who defy “health” “orders.” We don’t want a “back and forth;” we have reasonable and simple questions you should be glad and proud to answer for the biggest change in public school conditions in California history. You should be thanking us to help resolve understandable confusion.

You have a choice: either demonstrate reasonable proof of “beyond control” local resources that I will report back to our district’s leadership, teachers union leadership, school staff, and our interested students, or I’ll report back whatever reason you want to evade the above two questions.

Please forgive my directness. Our committee has been trying to get clear answers since September. I appreciate your clear response to our first concern about 60 days of authority.

**
George:

Mr. Herman,

I have answered your questions to the best of my ability and they have only lead to more questions. I do not believe that I have been evasive, but I am sorry that you are not satisfied with the answers I have provided.

Once again I would direct you to find legal counsel or reach out directly to the administration.

**
me:

The governor’s office refused to answer, as have 11 other CA government agencies except your providing the answer regarding 60 days of authority (see below for the governor’s part of my report back to our 20,000 student district; the Dept. of Ed also refused to answer).

You are claiming to have answered the following question with the following responses, that you also claim is the “best of your ability” and without being evasive. You conclude that answering one out of just three questions is the best you are willing to do. Our high school Senior US Government students shall consider your claimed “best answer.”

If you’d like one more try before I complain to your Chief of Staff, Dan Weintraub, please do. I will complain because I do not consider what I received an answer nor public service.

Q: What is the transparent hospital data demonstrating “beyond control” hospitals to justify “emergency orders”?

A: At this point I’m going to share your comments with Senator Glazer and forward them to the administration.

I recognize your desire to challenge the administration so that the orders can be lifted – orders that include provisions meant to speed the delivery of aid, resources, and monies to communities in order to combat the COVID-19 challenge.

I would encourage you to seek legal counsel so that the courts can remedy the issue in your favor. Legal counsel would also have the resources to request the information you desire from the administration.

Q: To be clear then at this point, your office is unaware of the facts to substantiate “beyond control” hospitals required by ESA, which is exactly the reason we were told an emergency declaration was necessary.

A: No. That is not what I am saying. I also want to refer you back to our first conversation where I told you I did not want to get into a back and forth with you about the Governor’s authority. The Senator firmly believes the Governor is within his authority.

In the proclamation of the state of emergency dated March 4, 2020, the Governor outlines his reasoning for declaring a state of emergency with about 18 “Whereas’s.” Appropriate CA codes granting the governor this authority are referenced. I think here again you assume that the only reason why the state of emergency was issued was to flatten the curve of hospitalizations, but that is one of several reasons and a reason not specifically outlined in the proclamation except in the 12th “whereas” where it states “the number of persons requiring medical care may exceed locally available resources”. I’ll remind you that locally available resources for medical care go beyond the ability to keep hospitals operational.

One such whereas goes into the ability of local governments to address the emergency. Local governments have continuously appealed to this office about their inability to respond without state or federal assistance. I would say that those appeals for assistance from this office demonstrate local authorities inability to address the emergency and substantiate the Governors reason for declaring one. This office is in fact, aware of the facts. We get numerous updates throughout the week about cases, emergency room capacity, medical employee workload, and the vaccination effort. All of which can be found on county and the state’s dashboards. I would say that those appeals for assistance from this office demonstrate local authorities inability to address

Senator Glazer has numerous times disagreed with the administration’s approach to the crisis. He has, on the record, questioned the easing of the restrictions that have kept our case load rates lower than other states.

Again, I urge you to seek legal counsel if you believe the Governor is outside his legal authority.

Q: Among the “whereas” section that further obfuscates, “beyond control” issues are only for PPE requirements ordered by the state, right?

So hospitals are universally or at least in our local counties within their control to treat patient numbers, as unanimous medical testimony tells us, right?

A: I have answered your questions to the best of my ability and they have only lead to more questions. I do not believe that I have been evasive, but I am sorry that you are not satisfied with the answers I have provided.

Once again I would direct you to find legal counsel or reach out directly to the administration.
**
George didn’t respond, so I emailed Chief of Staff, Daniel Weintraub:

Dear Daniel,
I’m escalating because George Escutia gave our school district the below non-answer to our questions about the governor’s and county’s ordering authority under the Emergency Services Act (ESA).

I’m a committee chair reporting back to district leadership, teachers’ union leadership, and all our high school’s teachers. George helped us with an interpretation of 60-day limit to dictatorial ordering authority, but refused to answer the following obvious questions that he should have been thankful to help our school district clear-up understandable confusion.

The below one email of yesterday provides the questions in bold, and George’s “answers” in blue. I’ll first provide some definitions to see what we see, and why we ask about the biggest changes to school operations in my 36 year teaching career:

(I followed with definitions and the above email)
**

Daniel:

Mr. Herman,
Thanks for reaching out.
Can you clarify something for me?
You seem to be upset with the governor because many schools are still closed. But the governor is not the one keeping them closed. That is a local decision made by each school board. He even signed legislation (which Sen. Glazer supported) offering schools financial incentives to re-open.
I guess I am not clear that the school issue has anything to do with a dispute over his emergency powers.
Having said that, the definitions you provide in your email show that the governor may proclaim a state of emergency if he finds that there is “extreme peril to the safety of persons and property within the state caused by conditions such as … epidemic, … which, by reason of their magnitude, are or are likely to be beyond the control of the services, personnel, equipment, and facilities of any single county, city and county, or city and require the combined forces of a mutual aid region or regions to combat.”
One can reasonably disagree with his judgment about the extent of the peril and the ability of various jurisdictions to deal with it, but he does seem to be within his powers.
Not sure if you are a baseball fan, but it seems like the debate over an umpire’s call. You can argue over the application of a rule, which is usually an objective issue, or you can debate the umpire’s judgment, which is subjective and typically can’t be overturned. This seems more like a judgment call to me.
Best,
Dan

**

me:

Thanks, Dan, for your response. I am a big baseball fan, and had Brandan Crawford in my 12th grade Economics class (SS for the Giants).

We are not upset; we have questions whether orders about our work conditions are lawful. School districts are required to follow county health orders. County health orders cite the governor’s emergency declaration. Our district leadership asked me to see what I can find out about this, with our teachers’ union leadership and teachers also very curious. This has taken me a month contacting a total of 12 CA government agencies, with George being the first to provide an actual answer that we can understand regarding 60 days of authority.

So the initial “flatten the curve to keep hospitals operational” was a lie (or silently rescinded and replaced with “cases”)? Sorry if that sounds harsh, but that’s what you wrote, yes?

And to confirm our committee’s understanding from ~20 health professionals and that George declined to answer: all or nearly all hospitals have remained operational, yes?

Thank you,
Carl (who became a Red Sox fan with Carl Yastrzemski my favorite player after he won the Triple Crown 54 years ago)
**

After no response from Dan, I followed the next day on April 7. Dan responded:

Carl,
Your questions about the State of Emergency are best directed to the governor, since he issued it.
But in the interest of speeding your inquiry, I will say that it is my understanding that the governor issued the declaration and the actions that followed in an attempt to slow the spread of Covid-19 and reduce all of the potential effects of a once-in-a-century pandemic on California. This included the potential effects on health systems and hospitals, as well as the loss of life and the degradation in people’s health.
Those policies appear to be working. The trend over the past year has shown that when Californians have limited their social interaction and worn face coverings, our case counts, hospitalizations and deaths have gone down. When we have not down those things, case counts, hospitalizations and deaths have gone up.
Even with these measures, there have been isolated incidences of hospitals being overwhelmed, and of hospitals redirecting ambulances because of a lack of capacity. Without the interventions ordered by the governor and county public health officers, these incidences undoubtedly would have been more frequent and widespread.
Suggesting that the Declaration of Emergency was either unnecessary or should have been cancelled earlier is a little like saying, during a wildfire, that the fire crews were unnecessary because the damage feared without their presence never occurred, or that they should go home before the fire is extinguished because the level of peril that existed before they began their work no longer exists.
Sen. Glazer has been critical of some of the governor’s actions, and especially of the lack of data that his Administration has shared with the public to justify his decisions. The senator has authored SB 744 to try to deal with this data gap, and he has written and published several commentaries on the topic, which you can find on his web site.
I hope this information adds to your understanding of the situation.
Sincerely,
Daniel Weintraub

**
My response the next day:

Thank you for your answer, Daniel.

We asked about data for “beyond control” hospitals to demonstrate legal requirements for a state of emergency. You responded with several important factual claims, including one that should be very helpful to address our district’s confusion.

Please know that we education professionals take factual claims as seriously as political professionals, are equally committed to comprehensive factual accuracy, so please provide the data informing your factual claims:
“when Californians have limited their social interaction and worn face coverings, our case counts, hospitalizations and deaths have gone down. When we have not down those things, case counts, hospitalizations and deaths have gone up.” Our committee has seen some data suggesting the opposite, so we’re very interested to see your data.
“there have been isolated incidences of hospitals being overwhelmed, and of hospitals redirecting ambulances because of a lack of capacity.” In your documentation, please include pre-Covid data for “isolated incidences of overwhelmed hospitals” because that data is required to come to your conclusion for “beyond control” hospitals with Covid causality. This is our question to determine the actual evidence for “beyond control” hospitals we were told is the primary cause for emergency powers.
“Without the interventions ordered by the governor and county public health officers, these incidences undoubtedly would have been more frequent and widespread.” “Undoubtedly” means you have comprehensive comparative data of states and/or nations that did not take those interventions, yes? Please include that in your documentation.
“Suggesting that the Declaration of Emergency was either unnecessary or should have been cancelled earlier is a little like saying, during a wildfire, that the fire crews were unnecessary because the damage feared without their presence never occurred, or that they should go home before the fire is extinguished because the level of peril that existed before they began their work no longer exists.” You argue that emergency orders under threats of fine and imprisonment with declared “non-essentials” are necessary because Covid is an unextinguished “wildfire.” I believe the hospital data should address this, unless you have further data.
Our committee was only interested in the hospital data, but your factual claims, of course, provide a broader and more important understanding of why our school district is ordered to obey under ongoing threats of fines and imprisonment.

Dan, with all respect, you claim to have important data to share with our school district. If so, please share it. If you are making unsubstantiated factual claims, I give you this one opportunity to amend your response.

In closing, after more than a month’s work including the governor’s office, we still have no answers except George’s contribution that 60 days’ limit applies only to “non-safety” orders. This is the part of my report back to district leadership, teacher union leadership, and all our school’s teachers regarding your suggestion to contact the governor:

(I included the governor and Department of Education’s responses you read in this report)
**
Dan:

Carl,
As I said, I don’t speak for the governor. Sen. Glazer has been very vocal about the need for more and better data that policymakers, researchers and the public could use to understand and critique the governor’s decisions and to make good decisions themselves. He shares your frustration with the lack of good data on how the virus has spread, which activities pose the most risk, and which mitigations have worked best to slow the spread of the disease.
My impressions do not have anything to do with the legal justification for a state of emergency. And as I said before, I believe the state of emergency rests on the governor’s judgment that Covid-19 poses a peril to the state that requires extraordinary measures. That’s his judgment. Yours may differ. But ultimately it is up to the Legislature to decide whether to overrule his judgment with their own judgment via a resolution ending the declaration of emergency. So far the Legislature has not done so. But even if the Legislature did pass such a resolution, it would be based on the collective judgment of those lawmakers. There is no data point — hospital capacity, for example – that serves as a legal “switch” to turn the emergency on or turn it off. The emergency is based on an opinion – the governor’s, and by default, the Legislature’s – that a peril exists.
While we have a shortage of good data, one of the most reliable indicators I have seen is the positive-test rate. While it’s not perfect, it has generally been a leading indicator. When the rate goes up, it indicates the virus is spreading further, after which case numbers rise. This is followed by an increase in hospitalizations and then deaths. When the positive-test rate declines, the opposite occurs.
If you look at the trends over the past year, you can see the positive test rate declining after the original stay-at-home order was implemented. In the second week in May, it bottomed out at 5.5%, just before the governor began loosening restrictions on gatherings and social interaction. The positive test rate, and case numbers, then began to climb again. In mid-July, the governor rolled back the reopening, closing indoor dining, gyms, churches, personal care services and other activities in much of the state. The statewide mask mandate, which took effect June 18, also began to affect people’s behavior. The positive test rate declined from 9.6% on July 10 to 3.1 % on Oct. 12.
As the positive test rate and case numbers declined, the governor’s blueprint allowed more and more activities to resume. Once again, the numbers began to rise. Interaction over Thanksgiving (confirmed by an increase in air travel) likely added to that spread. The positive test rate reached 10.9 percent on Dec. 3, and the governor issued another stay-at-home order. Much of the spread triggered by the holiday gatherings was already baked in, and the positive test rate climbed through the Christmas holidays until peaking on Jan. 4, before declining again.
These trends show a correlation. We don’t have sufficient data to show causation. But until I see another, more compelling explanation for the correlation, I think it’s reasonable to conclude that the spread was driven by increases in human interaction and the slowing in the spread was caused by a reduction in human interaction. Since we know that Covid-19 is spread by human interaction, it does seem logical that this would be the case.
I don’t offer this information in hopes of persuading you. If you believe the state of emergency is unwarranted, I respect that. Reasonable people can reach different judgments on that. But they are judgments, based on how each person views the world around them. Your judgment and the governor’s judgment are based on how you view the facts available. But there is no formula that you can plug numbers into and then ask it to spit out The Answer to whether a state of emergency is warranted. And there never will be.
In all respect, I suggest you report back to your committee that your school district is being asked to follow certain public health guidelines because the governor and/or the county public health officer believe that following those guidelines will save lives and allow us to engage in more social interaction and economic activity while limiting the spread of a deadly disease.
Sincerely,

**

Me the next day:

Dan,
YOU made four factual claims that I quoted that should answer our questions, and then I allowed one opportunity for you to document, which you willfully dodged.

ESA requires “beyond control” hospitals, which YOU know is what Californians were all told was the primary concern for the lockdown: to keep hospitals from being overrun, to “flatten the curve.” I’m not speaking to the governor, who refused to provide answers, I’m asking my state senator’s Chief of Staff the primary question of hospital response that Californians were told is the central reason for ongoing threats of fine and imprisonment for violations.

YOU lie by omission to ignore that question, and then lie by commission to provide “cases” as a substitute for hospital capacity. The “cases” are rife with false-positives as admitted by WHO (and here, here), medical Nobel Prize Winners, and even Dr. Fauci, so this is another lie of omission.

YOU pretend that hospital patient numbers is some complex data point, and that the power of California political leadership suffers from a “shortage of good data” or need “more and better data” when we’re asking THE CENTRAL QUESTION ANY HOSPITAL LEADER KNOWS: hospital capacity.

YOU pretend that California political leadership is somehow too stupid to answer this central question for the central reason claimed for an emergency, and treat Californians as if they’re too stupid to recognize zero data reporting and tragic-comic obfuscation when we ask the simple, obvious, and required question of hospital capacity to justify emergency “health” “orders.”

YOU pretend that limited government that all California teachers teach, and all California students learn doesn’t exist, and that dictatorial governor and legislative “judgement” like a baseball umpire is what we have, while depriving Californians from hospital capacity data. You say we have to accept an umpire’s call of “out” while refusing to disclose the video data to demonstrate that call as rational to what anyone can see.

I will report back to my 20,000-student district that George from Senator Glazer’s office helped us understand ESA claims constitutional authority without expiration in time, and that George and you provided unsubstantiated claims and evasion regarding ESA’s legal requirement of “beyond control” hospitals.

I promise that our 12th Grade US Government students will consider your responses as a case study to consider how much objective data was used, and how much political propaganda pushing an agenda was given under ongoing threats to fine and imprison all of us.

YOU have an Oath to “support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic,” and have chosen to defend ongoing dictatorial government rather than transparent and verifiable hospital data to constituents and schools for the public to have informed political views.

You will have what you work for.
**

Dan:

Carl,
It is my understanding that the state of emergency rests on the authority in the ESA that references the section below. I don’t see anything there about hospital capacity. I do see that the governor has the authority to declare and maintain a state of emergency when an epidemic poses extreme peril to the safety of Californians and will likely be beyond the control of the services of any single city or county. In his judgment, such a peril existed and still exists. You may disagree. But in all respect, I think your time would be better spent simply arguing that the peril has sufficiently subsided such that emergency powers are no longer needed, rather than arguing that no such peril ever existed because the worst of the conditions that the governor thought were likely to occur without his exercise of emergency powers did not occur after he exercised those powers.
Sincerely,
Dan

Government Code
8558 (b) “State of emergency” means the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons and property within the state caused by conditions such as air pollution, fire, flood, storm, epidemic, riot, drought, cyberterrorism, sudden and severe energy shortage, plant or animal infestation or disease, the Governor’s warning of an earthquake or volcanic prediction, or an earthquake, or other conditions, other than conditions resulting from a labor controversy or conditions causing a “state of war emergency,” which, by reason of their magnitude, are or are likely to be beyond the control of the services, personnel, equipment, and facilities of any single county, city and county, or city and require the combined forces of a mutual aid region or regions to combat, or with respect to regulated energy utilities, a sudden and severe energy shortage requires extraordinary measures beyond the authority vested in the California Public Utilities Commission.
**

Me:

Dan, you see and quote what our committee saw and I quoted: “beyond control.” Therefore, a natural and obvious question that you intentionally evade 9 TIMES and I will give you ONE LAST OFFER to supply data:

Q: What is the transparent hospital data demonstrating “beyond control” hospitals to justify “emergency orders”?

Please do not cite positive test results; that is not “beyond control” hospitals. Please provide comparative data that usual flu seasons cause temporary, planned, and managed spikes for hospitals.

Citing this verifiable data is required to demonstrate ordering authority. Without this data that anyone can verify, there is no ordering authority under ESA.

Dan, you then LIE by commission that I wrote anything about “arguing that no such peril ever existed” and continuously lie by omission that Newsom’s declaration explicitly states the central concern to keep hospitals from patient numbers “beyond control” (which matches the public talking points). You further intentionally lie by commission to substitute problematic “cases” for hospitals being within their control.

If you choose to actually answer our question in this the 10th time I have asked Senator Glazer’s office, then thank you.

If you choose to ignore our question a 10th time with further rhetoric made famous by Princeton Professor Emeritus Harry Frankfurt in his Bestsellers, then thank you for providing our 12th Grade Seniors in US Government with such rich material to consider in a case study of real-world political “answers.”

**
Dan, to whom I will no longer respond for his A+ bullshit obfuscations that are the premier case study of political evasion to shield illegal policies while claiming to be of help:

Carl,
Thanks for your reply.
I believe the governor’s declaration said that the pandemic “may exceed locally available resources” (including hospitals) without the interventions that the state of emergency allowed.
You may disagree with his assessment about the level of the threat a year ago. But his contention is not something that can be proven or disproven, since the governor did take those actions and, in most cases, the resources the state and federal governments provided were sufficient.
We will never know what might have happened without those interventions.
At any rate, hospital capacity was only one of the issues the governor cited in his declaration. His overall concern for the health and safety of Californians was also in play. Even if we had infinite capacity in our hospitals and ICU capacity, he might still have been justified in not being satisfied that we had enough beds for people to die in if he let the virus run rampant.
But again, our office does not speak for the governor.
I am just trying to help you, as a constituent, understand what we know about this rationale.

CA Assembly Bill Quirk (where I work):
I left a phone message on 3/19, received no response, so called and spoke with his Sacramento office (Monica) on 3-29, receiving a promise to research and get back to me. I followed with a 3-30 email to Chief of Staff Tomasa Duenas and phone call back to Monica who informed me the Chief of Staff would get back to me. Tomasa passed responsibility to Deborah Cox, who has yet to respond despite two follow-up emails reminding everyone that I represent a 20,000 student school district awaiting answers to apparent illegal “health” “orders.” My last attempt was 4-13.

CA Senator Bob Wieckowsi (where I work):
I spoke with Legislative Director Chris Clemons on 3-29, and delivered emailed details that he promised to look into and respond. After 5 of my follow-up emails, Chris answered on 4-13, and to which I responded with the complete report you have in this article. I asked for an update on 4-20, but will not wait to submit my report.

On Tue, Apr 13, 2021 at 10:50 AM Clemons, Chris wrote:

Thank you again for reaching out. I don’t have an answer at this point. I am having other staff look into this as well. Unfortunately, this is an very busy time in the Capitol office with strict deadlines to get bills through. I wanted to let you know the office is working on finding an answer if possible.

A couple of questions, who else are you working with this and whom did you received an interpretation from? Are you consulting with attorneys? I would appreciate seeing what the document of their interpretation if possible.
**

Herman, Carl
6:36 AM (0 minutes ago)
to Chris
pastedGraphic.png
Chris, after 7 weeks of trying to get our question answered from now 14 CA government agencies, I’m going to submit my report to our district, union, and teachers (Alameda County Counsel said they don’t respond to constituents, and my jury duty court answer was they just follow orders, ignoring my request for written explanation how “health” “orders” are lawful given my citations of law).

If you do get any answers, I’ll amend my report.

I hope you’re at least strongly questioning this case study of dictatorial government with no evidence of lawful authority because of no evidence of “beyond control” hospitals.

Best wishes,
**

Alameda County Office of Public Health:
I left two phone messages beginning on March 16, finally spoke with Kimberly Wesley (Public Health Nurse), who said she couldn’t answer my question, but would forward to someone who can. I said I’d follow with an email with details; she responded on March 18 to forward my email to two others. On March 27, I followed up because I’ve received no responses. My and her emails, with an answer from Dr. Moss, the county’s Health Officer:

§ 8627.5. Authority of Governor; nonsafety regulations on delivery of food products; pharmaceuticals; and other emergency necessities; form of orders and regulations; effect; duration
(b) The orders and regulations shall be in writing and take effect immediately on issuance. The temporary suspension of any statute, ordinance, regulation, or rule shall remain in effect until the order or regulation is rescinded by the Governor, the Governor proclaims the termination of the state of emergency, or for a period of 60 days, whichever occurs first. (emphasis added) ~ California Emergency Services Act (ESA)
Our main question is given this hard limit of 60 days for emergency authority, where is authority for “health orders” under threat of fine and a year in jail when that authority is 10 months expired?

HUSD and ACOE don’t have an answer other than what they know of their requirement to follow the health orders. Nobody so far can answer how those orders are lawful past 60 days.

Some further definitions to help:

The Governor is hereby empowered to proclaim a state of emergency in an area affected or likely to be affected thereby when:
(a)?He finds that circumstances described in subdivision (b) of Section 8558 exist; ?and either
(b)?He is requested to do so (1) in the case of a city by the mayor or chief executive, (2) in the case of a county by the chairman of the board of supervisors or the county administrative officer; ?or
(c)?He finds that local authority is inadequate to cope with the emergency.
~ California Code 8625

“State of emergency” means the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons and property within the state caused by conditions such as … epidemic, … which, by reason of their magnitude, are or are likely to be beyond the control of the services, personnel, equipment, and facilities of any single county, city and county, or city and require the combined forces of a mutual aid region or regions to combat … ~ California Code 8558 (b)

emergency: a sudden, urgent, usually unexpected occurrence or occasion requiring immediate action.

WHEREAS I find that conditions of Government Code section 8558 (b), relating to the declaration of a State of Emergency, have been met;…
~ Proclamation of a state of emergency, Governor Gavin Newsom, March 4, 2020

Thank you,
Carl

**

Thank You. I will forward this to Lisa Erickson she’s the COVID school lead and I will send a copy to the Health Officer, Dr.Moss.

Kimberly Wesley RN,PHN,MSN
Public Health Nurse/Clinical Nurse iii

**
On Mon, Mar 29, 2021 at 12:30 PM Moss, Nicholas, Public Health, DCDCP wrote:
Hi Carl,

I suggest you contact an attorney if you would like a legal interpretation of the Act. I can’t provide that. If I understand your concern correctly, it may be that the 60-day language you are pointing to does not apply to the overall authority conferred by the Governor’s declaration of emergency. There is language in the Act about how the state of emergency is terminated:

8629.
The Governor shall proclaim the termination of a state of emergency at the earliest possible date that conditions warrant. All of the powers granted the Governor by this chapter with respect to a state of emergency shall terminate when the state of emergency has been terminated by proclamation of the Governor or by concurrent resolution of the Legislature declaring it at an end.

Thanks!

Nick

Nicholas J. Moss, MD, MPH
Alameda County Health Officer
Public Health Department
Alameda County Health Care Services Agency
1000 Broadway, Suite 500, Oakland, CA 94607
[email protected]
Preferred pronouns: he, him, his
pastedGraphic_2.png

**

Herman, Carl
pastedGraphic.pngto Nicholas, Carl
pastedGraphic.png
Thank you for your response, Nick.

I’m disappointed because despite Alameda County Health Department issuing health orders under threats of fine and imprisonment, your official response ignores the 60-day limit. Emergency powers must be limited, as US/CA limited government does not allow dictatorial and unlimited power.

§ 8627.5. Authority of Governor; nonsafety regulations on delivery of food products; pharmaceuticals; and other emergency necessities; form of orders and regulations; effect; duration
(b) The orders and regulations shall be in writing and take effect immediately on issuance. The temporary suspension of any statute, ordinance, regulation, or rule shall remain in effect until the order or regulation is rescinded by the Governor, the Governor proclaims the termination of the state of emergency, or for a period of 60 days, whichever occurs first. (emphasis added) ~ California Emergency Services Act (ESA)

I’ll report back to our district that you failed to address how authority exists given the 60-day duration of power, and provide the text of your response claiming unlimited power. If my understanding is incorrect, please advise. I know this may sound harsh, but that’s the answer I’m getting: ignore the 60-day language and assert power until a leader says the power has ended.

Accepting unlimited government authority is in violation of our mutual Oath to support and defend the US and CA Constitutions. If you’d like to discuss anything further, please let me know.

**

Moss, Nicholas, Public Health, DCDCP

1:33 PM (5 minutes ago)
to Carl, Carl

Noted and I appreciate your input.

Thanks

Nick

Alameda County Office of Education:
On March 16, I called and was directed to Director of Communications, Michelle Smith McDonald. She was cordial and promised an answer. Here is the email chain of her failure to address a 60-day limit, and questioning my motives to ask:

On Tue, Mar 16, 2021 at 2:51 PM Michelle Smith McDonald wrote:

Carl
This is the information that I found in response to your question from earlier today.

The requirement to obey local health orders comes from the county health officer who is granted the authority here:
https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCo…

While in this case, the county health officer is aligning our county’s guidance and health orders with those coming from the state, the power to enforce them lies here:
(California Health and Safety Code § 120295, et seq.; Cal. Penal Code §§ 69, 148(a)(1))
https://codes.findlaw.com/ca/penal-code/pen-sect-148.html#:~:text=(a)(1)%20Every%20person,office%20or%20employment%2C%20when%20no

This information sits at the top of every health order issued by the county public health officer including the latest one issued on January 25, 2021
https://covid-19.acgov.org/covid19-assets/docs/shelter-in-place/21-01-…

Thank you.
Michelle Smith McDonald
Director of Communications
510-670-4163

**

On Mar 16, 2021, at 8:32 PM, Herman, Carl:

Thanks, Michelle; this is also what we found, and HUSD is currently following. The question we need answered is whether any “ordering” authority is still valid given the 60-day hard-limit.

Here’s the key section:

§ 8627.5. Authority of Governor; nonsafety regulations on delivery of food products; pharmaceuticals; and other emergency necessities; form of orders and regulations; effect; duration
(b) The orders and regulations shall be in writing and take effect immediately on issuance. The temporary suspension of any statute, ordinance, regulation, or rule shall remain in effect until the order or regulation is rescinded by the Governor, the Governor proclaims the termination of the state of emergency, or for a period of 60 days, whichever occurs first. (emphasis added) ~ California Emergency Services Act (ESA)

So what we need to know is if the governor has any additional authority outside of ESA we don’t know about. This is the difference between the county giving advice or lawful orders. Everybody I’ve talked with who has looked can’t find any additional authority, and don’t think it exists outside ESA.

Interesting, yes?

So can you still help with our question of ordering authority?

**

On Tue, Mar 16, 2021 at 9:14 PM Michelle Smith McDonald wrote:

Carl -
You keep referencing a “we”. Please be clear the group that you’re representing. I know that you’re a teacher at HHS, I know that you’ve been asking these questions of the district and that they referred you to us.

I don’t understand the context of these questions however. Are you looking for a way to refuse to comply with the health order?

As a county office of education, we are, like the school district, following the health orders that have been provided by the county by their legal authority. We have no independent authority over health orders for schools. We have no reason to question that legal authority.

If you want to know the basis of the county’s legal authority, then you should call the county health office.

But it’s clear to me that the county health officer has legal authority in this instance and whether the governor has issued orders or not is not relevant if the health or officer chooses to implement them. Because the health officer in the county has the force of law behind its orders.

**

On Wed, Mar 17, 2021 at 6:03 AM Herman, Carl:

Answers:
I’m chair of HHS Solutions and Beyond! Professional Learning Committee (PLC) at HHS that considers broader education issues with direct impact on our school’s teaching and learning.
We want to know the truth of any authority for lawful orders to our teaching conditions. We know that everyone in our community would appreciate having choice between “orders” and “advice”. We’re perfectly willing to comply with lawful orders.
Employers have legal responsibility to explain how workplace demands are lawful. It is also our understanding that the county received authority from a declaration of emergency from the governor with up to 60 days’ authority. Some further definitions to help:

The Governor is hereby empowered to proclaim a state of emergency in an area affected or likely to be affected thereby when:
(a)?He finds that circumstances described in subdivision (b) of Section 8558 exist; ?and either
(b)?He is requested to do so (1) in the case of a city by the mayor or chief executive, (2) in the case of a county by the chairman of the board of supervisors or the county administrative officer; ?or
(c)?He finds that local authority is inadequate to cope with the emergency.
~ California Code 8625

“State of emergency” means the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons and property within the state caused by conditions such as … epidemic, … which, by reason of their magnitude, are or are likely to be beyond the control of the services, personnel, equipment, and facilities of any single county, city and county, or city and require the combined forces of a mutual aid region or regions to combat … ~ California Code 8558 (b)

emergency: a sudden, urgent, usually unexpected occurrence or occasion requiring immediate action.

WHEREAS I find that conditions of Government Code section 8558 (b), relating to the declaration of a State of Emergency, have been met;…
~ Proclamation of a state of emergency, Governor Gavin Newsom, March 4, 2020

Michelle, we are all under Oath to question the legality of orders, especially when they declare our community “non-essentials.” Your statement, “We have no reason to question that legal authority.” must conform to our Oath to “support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic.”

Given the above information, you now have reason to question the legal authority because limited government is what we teach every student in every classroom of the county and state. Agreed?

I’m also attempting to get this answer from:
Governor’s office: called and was told their office can’t answer how the governor has authority on his own declaration of emergency!!! I was told to ask the department of education. When I told Ramon (the person on the phone) that there must be an answer, and asked to speak to a supervisor, he hung up on me! I called back despite total time on hold of ~20 minutes only to leave a voice message.
CA dept. of health: called and was told they won’t answer! I was told to call the governor’s office or send an email to “safe schools for all.”
CA dept. education: I left a voice message with their legal department.
Alameda county health dept.: left phone voice message.
CA Assembly Education Committee: sent email.
CA Senate Education Committee: sent email.
All of us are under Oath to ensure orders are lawful. So far, HUSD has refused to answer the specific question how orders are lawful when their authority is 10 months expired. (Superintendent) claims he answered by providing information similar to you, but when I asked to cite the part answering my question because I don’t find that answer, he cut off communication saying he will no longer respond.

Michelle, please help answer this question, especially for our community members forced into poverty by being told their non-essential status prevents them from earning income for their families. As you know, we have about twice the numbers of student failures compared to before the lockdowns.

If I receive any answers, I’ll let everyone know.

It seems all of us are important given the governor’s office refusal to answer, as well as the CA department of health. You have reason to question their legal authority when they refuse to cite it.

In all respect and support for our communities’ optimal learning,
Carl

**

I followed this with:

And maybe this will help: the US and CA Constitutions never have legislative intent nor authority for ongoing government dictatorial power (to dictate/say the law for as long as they say so). ESA is a model that almost all Americans would accept: 60 days of dictatorial authority, then the legislative branch would consider any ongoing emergency response.

Btw, as I shared, a precondition of the legislative definition of emergency is “beyond control” hospitals in this case. All medical professionals I know who have answered (~20) all say hospitals are well within their control. As you may know, hundreds of medical professionals challenge COVID statistics, but this is outside any expertise I have so I won’t address this particular issue.

The US Supreme Court also made clear:

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

So there seems to be two basic professional responses we have regarding ongoing “orders” of the state/county under threat of fine, imprisonment, lockout poverty in the most devastating economic attack in US history, firing employees, jailing parents,and expulsion for students:
Stand for dictatorial government if they say compelling propagandistic words for as long as they say them (“for your safety,” etc.).
Limited government under our constitutions.
I predict your research into legal authority will verify that our current employment conditions are under option 1.

The question I have is if that is our informed choice.

Whichever way you choose to answer, I will communicate to our community. Make good choices :)

If I can be of service, please let me know. And I’ll communicate any responses from other agencies I receive. Btw, my background includes briefing Members of Congress ~300 times for US domestic and foreign policy for ending poverty over 18 years that led to two UN Summits for heads of state. I’m absolutely confident about the information I provide.

Carl

**

On Thu, Mar 18, 2021 at 7:52 AM Michelle Smith McDonald wrote:

Carl -
I have provided you with information about the county’s authority to issue public health orders.

I looked into the latest state public health orders and this is what I found.

10.This order is issued pursuant to Health and Safety Code sections 120125, 120130(c), 120135, 120140, 120145, 120175,120195 and 131080; EO N-60-20, N-25-20, and other authority provided for under the Emergency Services Act; and other applicable law.

This is the extent of the research on your behalf that I am able to provide.

Thank you.

**

From: Herman, Carl
Date: Thu, Mar 18, 2021 at 8:49 AM
Subject: Re: Answer to your question.
To: Michelle Smith McDonald

Michelle,
How do you reconcile an “order” under ESA without any authority past 60 days?

I strongly recommend consulting ACOE’s attorney on this question, but that’s up to you. I request you ask the county this question, and that’s also up to you.

If you choose to join HUSD to ignore this fundamental and required limit to dictatorial government, so be it. I’m just confirming your choice. Whatever you choose, I’ll report it to HUSD and HEA leadership, as well as HHS teachers in our PLC report.

I’ll let you know if I receive any answers that address this question.

**

From: Michelle Smith McDonald
Date: Thu, Mar 18, 2021 at 9:46 AM
Subject: Re: Answer to your question.
To: Herman, Carl

Carl,
I have answered your questions. If you would like to confirm my choice to be responsive to you more than once and to provide information from both the county and state agencies regarding their legal authority to institute public health orders, then absolutely.
Thank you.

Michelle Smith McDonald
Director of Communications
510-670-4163
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Bonus! Jury duty:
I hope you appreciate the following email exchange from a court system claiming to be expert on the law. Summary: I emailed for written explanation of how “health” “orders” are lawful, that they ignored. My call resulted in being told the court is following orders, they do not respond to questions about our constitutions, and to write their media department. Their media department repeated they are order-followers, and didn’t respond to my follow-up questions.

On 4-13 I received another postcard threatening “legal action and sanctions being brought against you by this Court,” to which I again tentatively agreed for jury service upon consideration of their answers.

Mar 19, 2021, 1:48 PM (8 days ago)
to jurywebexcuse
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I assume you require masks and “social distancing,” correct?

If so, how are any “health orders” valid given the governor’s authority (including EOs) is only 60 days, and now 10 months expired?

§ 8627.5. Authority of Governor; nonsafety regulations on delivery of food products; pharmaceuticals; and other emergency necessities; form of orders and regulations; effect; duration
(b) The orders and regulations shall be in writing and take effect immediately on issuance. The temporary suspension of any statute, ordinance, regulation, or rule shall remain in effect until the order or regulation is rescinded by the Governor, the Governor proclaims the termination of the state of emergency, or for a period of 60 days, whichever occurs first. (emphasis added) ~ California Emergency Services Act

Without satisfactory explanation “health orders” are lawful given this 60-day limit of “emergency necessities” that must also limit all connected EOs, I conclude a prudent person would have to rule that court conditions are unconstitutional to our 1st Amendment-guaranteed rights. In addition, no county can have unlimited dictatorial power when the spirit and letter of ESA has a 60-day limit. A foundation of US and CA government is limited government under law.

Please provide answers.

Thank you,
Carl Herman
Juror Badge: (omitted)
Group: (omitted)

**

Mar 26, 2021, 10:07 AM
to mediainfo, Carl, jurywebexcuse
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Dear citizen,
As I did not receive any response to the above emailed concerns with our Natural Rights guaranteed by the US and CA Constitutions, and to which we all have an Oath to support and defend as CA public servants, I called 925-608-1000 today and spoke to a Paula. She refused to provide answers, told me her supervisor was “busy,” said that she refused to discuss our Oath as a legitimate concern, and directed me to contact you at mediainfo for an answer to my question.

Because the prima facie evidence is that “health orders” are unlawful because beyond its 60-day limit, and as I’ve exercised all responsible effort to get my concern addressed that my participation in “health orders” would be against our Oath, please answer this question by 5PM on March 28 for my instruction call for March 29 jury duty or I will have to use my own best judgement to our mutual Oath and not participate in apparent illegal “health orders.”

I will further complain if I receive the non-response to “just follow orders.”

I am a National Board Certified Teacher in US Government, History, and Economics. We all teach and learn limited government under law, and to reject “orders” of unlimited and therefore dictatorial government.

**

Media Information

Mar 26, 2021, 4:31 PM
to me, Contra, Media, Carl

Good afternoon,

Thank you for your email. The Contra Costa Superior Court complies with all state and local health orders, as well as the guidelines of the Centers for Disease Control & Prevention, concerning masking and social distancing. While we appreciate you have a contrary view of the law, the Court will enforce these requirements as a matter of public health and safety, and your position is not an excuse from jury service. If you have a particular medical condition which prohibits you from wearing a mask, you may provide supporting documentation to Jury Services.

Thank you,

Public Information Office
Superior Court of California, Contra Costa County
[email protected]
925.608.2607

**

Mar 26, 2021, 5:13 PM
pastedGraphic.pngto Media, Contra, Carl

§ 8627.5. Authority of Governor; nonsafety regulations on delivery of food products; pharmaceuticals; and other emergency necessities; form of orders and regulations; effect; duration
(b) The orders and regulations shall be in writing and take effect immediately on issuance. The temporary suspension of any statute, ordinance, regulation, or rule shall remain in effect until the order or regulation is rescinded by the Governor, the Governor proclaims the termination of the state of emergency, or for a period of 60 days, whichever occurs first. (emphasis added) ~ California Emergency Services Act

Anonymous “Public Information Office” respondent,
You ignored my question, and asserted the court “just follows orders.” You also claimed I have a “contrary view of the law” while providing no legal view of your own how 60 days of authority didn’t expire 10 months ago. You also lie about my having any view of the law; I asked a question.

I have provided the applicable law and remind you that all California public servants have an Oath to “support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic,” with a foundation of US and California government of limited authority under law that nobody is above.

Without explanation of how a limit of 60 days has authority for over 365 days, I must honor my Oath to go with the best evidence to uphold our rule of law. If you can provide a reasonable explanation of ordering authority past those 60 days, please document by 5PM on March 28 for my instruction call for March 29 jury duty.

As a public school teacher, I look forward to sharing the court’s answer to all my students, Social Science Department teaching colleagues, and our entire high school faculty in my regular reports how broader educational issues directly impact our school’s teaching and learning. If motivated, I might leverage other outlets of communication.

So far, I had my initial email ignored, was denied speaking with a supervisor at the jury phone number I was given to call, and now have a non-answer from you that all my classroom students will certainly see as ignoring one simple and obvious question, while failing to provide the law I question (not have a contrary view). You also ignore our mutual Oath. Because I’ve taken all reasonable actions to validate an authority you claim under threat of $1,000 fines and one-year imprisonment for failure to comply, and because you’ve failed to respond three times to demonstrate valid authority (high school history students would mock your “just following orders” defense and lie that I stated a legal position), our best evidence is that emergency powers ended after 60 days, and I am honoring our mutual Oath to inform you of those facts and reject your apparent illegal “health orders” until you provide reasonable evidence that ordering power exists.

I am willing to reschedule if you can provide such evidence, but fail to meet the 5PM March 28 reasonable deadline for jury service the following day.

**
Carl Herman
Apr 14, 2021, 10:20 AM (6 days ago)
to Media, Contra, Carl

I received a postcard with the lie that I “failed to appear for jury service” when the truth is that I requested proof from the court that “health” “orders” are lawful before I comply. I cited the Emergency Services Act (ESA) with apparent 60-day limit to authority that is now 11 months expired. I now add the below prudent, rational, and necessary question below that without objective and verifiable “beyond control” hospital data, we now have two prima facie points of evidence that “health” “orders” violate our mutual Oath to support and defend our Constitutions.

Upon receipt of the lying postcard, I called the number provided. The person answering said she couldn’t respond, transferred to a supervisor who reported she couldn’t respond, and requested I write back to you.

I teach our public school children as a National Board Certified Teacher and Certified Coach of Teacher Candidates. This is the highest national recognition for teacher excellence. California curricula require our teachers to teach, and our children to learn, that “just following orders” is a crime, anti-American, and the basis for Nuremberg Trial prosecutions. Therefore, in honor of our mutual Oath, I request proof in writing how “health” “orders” are lawful as fulfillment of my SUPERIOR obligation to our Oath.

Provide the proof in writing, and I will consider and report back. If the proof is reasonable, I will reschedule jury service. Until then, I conditionally accept jury service pending reasonable proof of legal health orders.

I’m using our conversation as a case study for our students to see how government works. So far, they are shocked by what they’ve learned of lack of response, lack of service, and direct refusal to discuss our mutual Oath. I will also include your response in my report back to our school district leadership, teachers’ union leadership, and all our school’s teachers at the advice and request of our superintendent, school board, and teacher’s union Vice President to see what answers I can find from 12 other CA government agencies. So far, all have answered as this court: to ignore the questions.

So far, your court and all 12 CA government agencies are acting in Orwellian-opposite to what we teach our children about government.

Be proud of your choices, for you will have what you choose.

Next question to demonstrate the county’s emergency orders are lawful is the requirement under ESA 8558 (b), which is what all Californians were told almost a year ago: lockdowns and masks were to “flatten the curve” to “keep our hospitals operational.” According to unanimous testimony our teachers and community members have reported, all hospitals have remained fully “in control” (I’ve asked ~20 local doctors, nurses, and other professionals).

Q: What is the transparent hospital data demonstrating “beyond control” hospitals to justify “emergency orders”?

Please do not cite positive test results; that is not “beyond control” hospitals. Please provide comparative data that usual flu seasons cause temporary, planned, and managed spikes for hospitals.

Citing this verifiable data is required to demonstrate ordering authority. Without this data that anyone can verify, there is no ordering authority under ESA.

I write as a resident and Committee Chair at Hayward High School reporting back to district leadership, teacher union leadership, and all our school’s teachers. As you may know, our students have about twice as many failing classes compared to normal in-school classes.

**

Up next! I’ll compose one last (?) essay and report back to my school district leadership, school board, teachers’ union leadership, and school teachers of my findings that no CA government agency can explain how ongoing year+ “health” “orders” are legal under ESA.

**
I make all factual assertions as a National Board Certified Teacher of US Government, Economics, and History (also credentialed in Mathematics), with all economic factual claims receiving zero refutation since I began writing in 2008 among Advanced Placement Macroeconomics teachers on our discussion board, public audiences of these articles, and international conferences (and here). I invite readers to empower their civic voices with the strongest comprehensive facts most important to building a brighter future. I challenge professionals, academics, and citizens to add their voices for the benefit of all Earth’s inhabitants.
**
Carl Herman worked with both US political parties over 18 years and two UN Summits with the citizen’s lobby, RESULTS, for US domestic and foreign policy to end poverty. He can be reached at [email protected]

Note: My work from 2011 to October 2017 is on Washington’s Blog, which the owner closed from Internet censorship in 2019, and here since. Work back to 2009 is censored by Examiner.com (blocked author pages: here, here). This means that some links in essays are inactive. If you’d like to see those articles, go to http://archive.org/web/, paste the expired link into the search box, click “Browse history,” then click onto the screenshots of that page for each time it was screen-shot and uploaded to webarchive.



Source: https://carlbherman.blogspot.com/2021/04/challenging-our-public-school-districts.html


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