May 11, 2020
According to USLegal.com, the "reasonable man theory refers to a test whereby a hypothetical person is used as a legal standard, especially to determine if someone acted with negligence. This hypothetical person referred to as the reasonable/prudent man exercises average care, skill, and judgment in conduct that society requires of its members for the protection of their own and of others' interests. This serves as a comparative standard for determining liability. For example, the decision whether an accused is guilty of a given offense might involve the application of an objective test in which the conduct of the accused is compared to that of a reasonable person under similar circumstances."
I offer this theory as a framework for your use in examining various aspects of the management of Pennsylvania during the COVID-19 outbreak. For these purposes, we will also stipulate that Governor Tom Wolf, with sweeping powers during a disaster emergency, and Dr. Rachel Levine, Secretary of the Department of Health, are wholly acting within their legitimate authority. By offering that stipulation, we are also in turn stipulating that since March 6, 2020 when Governor Wolf signed the initial COVID-related proclamation declaring a disaster emergency, he and Dr. Levine are solely responsible for the day-to-day management of Pennsylvania.
Given that, I'd like you to review some of the decisions made by these two individuals and use the reasonable man theory as a standard by which to measure them.
Faced with the threat of a novel viral outbreak, a decision was made to essentially bring Pennsylvania's economic engine to a halt. With many industry experts located within mere blocks of the Governor's office in Harrisburg, consulting with them beforehand on the best way to go about that would have been a breeze. With 253 members of the General Assembly in the same building as his office, asking them to help deliver the message to the respective unique communities they are intimately familiar with would have also been easy.
The Governor chose neither of these options. To the best of my knowledge, he consulted with no one outside his own office, and relied only on his own staff and the media to deliver his message to the general.
The Governor could have eased Pennsylvanians into an understanding of his shutdown plans by publicly announcing what the overall game plan was and preparing everyone for what might come next. Instead, he only informed the Commonwealth of his decisions to shutter certain sectors a day or two, and in some cases mere hours, before they were before they were to take effect.
As a result, citizens and the businesses that help them feed their families were left in a state of shock and panic, which in some cases led to hasty crowds gathering at soon-to-be-closed liquor stores and other shops in an to attempt to stock up to get through the shutdown, for however long it might last.
Having decided that Pennsylvania's economy needed to be shut down for the sake of public safety, the Governor then had to decide on a plan to at least allow for survival-level functional operations. After all, you can't just shut down everything. People still need food. Hospitals need to remain open. Electricity still needs to flow.
The Governor could have referred to a nationally recognized standard for essential businesses, the Cybersecurity & Infrastructure Security Agency's critical infrastructure sector list, as maintained by the US Department of Homeland Security. This resource was used by at least 45 other states to guide their actions in response to COVID-19, and Pennsylvania's critical sectors with interstate interests would have at least been able to adapt to a unified approach across state lines.
Instead, Tom Wolf and his Administration decided to invent a new rubric, separating "life sustaining" business operations from those they considered "non-life sustaining." These two terms had not been used before in the history of the Commonwealth. The two lists immediately and continuously changed over the course of a few weeks, as oversights and mistakes were corrected. For instance, while logging was "life sustaining," sawmills were not. Similar errors and glaring oversights were adjusted for other industries as well. It was almost as if no one in the Wolf Administration had any real experience in the private sector or with supply chains.
Alongside the unfairness of the new "life sustaining" rubric, the Wolf Administration proposed to offer waivers to continue operations for businesses falling under the broad "non-life sustaining" category. To apply, those businesses were offered an email address. Due to overwhelming volume, a few days later state legislators were offered a different, special email address to submit applications on behalf of their constituents, but even that didn't satisfy demand. Eventually, a web-based form was created to handle all applicants.
Applications were to be processed by the Department of Community and Economic Development. There were no pre-determined guidelines or qualifications presented so applicants could know what specifics DCED would use to determine approval or denial. Early results in my district showed that while one appliance sales and service shop was approved, another similar operation was denied. One mobile pet groomer was approved, while another was denied. Some builders were good to go; others not. On and on the list of discrepancies went, without any particular rhyme or reason.
Having received over 42,000 waiver requests, the Wolf Administration had enough. They shut the application system down, leaving those who hadn't applied yet out of luck and those who had applied waiting for an answer as to whether they could continue to feed their families or not. We lost track of the number of constituents we tried to help through that process at the 102nd District office.
Pennsylvania has a pretty robust open records law, but the Wolf Administration failed to provide any transparency at all regarding that waiver list. Despite a right to know request filed by a news organization, letters and public calls for openness from legislators such as myself, as well as editorials to the same effect, they refused. This was especially insulting because it was no secret that law enforcement had access to the list for the purpose of enforcing the Governor's shutdown orders.
Finally, on Friday, May 8 at 5:30 pm, they relented and published a list of businesses approved for waivers, despite a Senate supeona for more complete information. The general public is combing through that list as I type this. It has already been discovered that the list is confounding in its discrepancies between approved businesses of types similar to known denied operations. It is also apparently somewhat incomplete and does not include all businesses which were denied, nor their application data.
The wearing of masks by healthy individuals has been one of the most hotly debated topics among the general public. Official sources are not unified on this topic to this day. The CDC has flip-flopped on the issue, but now supports it. The US Surgeon General is on record as being against it. The WHO states that healthy individuals should not wear a mask unless caring for a sick person, and further infers that reusable masks are likely not the best idea.
The Wolf Administration has not helped matters, due to confusing and difficult to find information. On April 3 the Governor publicly recommended universal masking across Pennsylvania. On April 15, the Secretary of Health announced that masks would be required for all employees and customers of businesses, with some odd exceptions and a curbside pickup provision for those with medical conditions, which is the functional equivalent of removing wheelchair access ramps. Yet even today, the Department of Health's website still states that masks are merely encouraged.
Setting policy for 12.8 million people can be a difficult proposition. But once that policy is in place, it needs to be easy to find and simple to decipher. To learn of the Wolf Administration's policy on masks, one needs to visit multiple websites, if one even knows where to look. The mask issue was made even more confusing by the Governor himself, who when asked at a press conference whether voters would need to be masked when showing up at the polls to cast a ballot on June 2, his first response was that he was not a lawyer. (He has used this response several times in response to questions about his policies. One would think he would at least understand his own policies. He is the Governor, after all.)
Almost 1.8 million Pennsylvanians have lost their jobs due to Governor Wolf's shutdown, yet there were apparently few or no provisions made for the Department of Labor & Industry to handle that many new claims. As a result, despite nearly $6 billion in benefits already paid out, there are still Pennsylvanians who haven't received a dime, after nearly seven weeks of being jobless. It is even worse for self-employed individuals.
One would think that the Administration would have foreseen the damage its shutdown would inflict upon our workforce and would have done some advance planning to make sure Pennsylvanians would not be left waiting so long.
To make matters worse, as we began to anticipate reopening businesses in the state, the Governor was asked about the inevitable prospect of employees who are still afraid of the virus being called back to work. In a stunning response, Tom Wolf stated that they could just keep collecting unemployment. This would be fraud, as it is distinctly illegal in Pennsylvania to continue collecting unemployment benefits when work is available.
The story of Pennsylvania's nursing homes will likely be the most remembered aspect of this shutdown, as well as its most tragic. The Department of Health, under the leadership of Secretary Dr. Rachel Levine, is responsible for oversight of nursing home and similar facilities in Pennsylvania. Dr. Levine serves at the pleasure of Governor Tom Wolf.
Upon the Governor declaring a disaster emergency on March 6, 2020, Dr. Levine issued a separate order halting routine inspections of Pennsylvania nursing homes. This order was issued despite news reports a week earlier of troubles experienced at Life Care Center nursing home in Kirkland WA where dozens of residents and first responders were quarantined and fell ill due to COVID-19 exposure. On March 18, Dr. Levine issued another order requiring Pennsylvania nursing homes to admit or re-admit COVID patients, where even well-known conventional infectious diseases are difficult to contain.
During a disaster emergency, Pennsylvania's governor has the authority to commandeer private property for the purpose of protecting public safety. He could have taken over entire hospitals and hotels to create COVID recovery and social distancing wards for our most vulnerable citizens. He could have called up the Pennsylvania National Guard to assist in staffing and caring for these frail and elderly individuals.
Governor Tom Wolf did none of these things. As a result, at last count 69 percent of all COVID-19 deaths (2355 of 3416) in the Commonwealth occurred in nursing homes. Families are prohibited from visiting relatives in nursing homes. Nursing home employees are nervous and fearful as the virus sweeps through their halls and afflicts their charges.
There are a few more links for your reference regarding this very disturbing aspect of the COVID shutdown. Please read this article from Spotlight PA regarding a quick strike plan, this article in the Bucks County Courier-Times which first alerted me to the nursing home issue, and then take a few minutes to listen to this testimony from a recent Senate hearing on the Department of Health's response to nursing homes during the disaster emergency.
Let us again recall the reasonable man theory from USLegal.com: The "reasonable man theory refers to a test whereby a hypothetical person is used as a legal standard, especially to determine if someone acted with negligence. This hypothetical person referred to as the reasonable/prudent man exercises average care, skill, and judgment in conduct that society requires of its members for the protection of their own and of others' interests."
I am not an unreasonable man. You are likely not an unreasonable person, either. Perhaps one or two of the above actions might be overlooked during one of the most confusing and hectic episodes of our time. Time will tell if these actions remain as they appear today, or if they will be clarified or complicated at some future date.
However, when strung together in the present as the predominant themes of crisis management for all of Pennsylvania over the course of the last two months, this reasonable man is hard-pressed to view the preponderance of the above evidence as grounds for anything but a claim of negligence on the part of Governor Tom Wolf and Secretary Dr. Rachel Levine.