When health officers in Jefferson and Mobile counties authorized a shutdown of restaurants and bars last week, the move caught mayors and public officials off guard.

“I think it was surprising for everyone,” said Mobile Mayor Sandy Stimpson,

Even Dr. Bernard Eichold, who has spent three decades as the health officer in Mobile County, was a bit surprised over the authority he had.

The orders from Eichold and Dr. Mark Wilson, health officer in Jefferson County, were the first to request that all bars, restaurants and breweries close their indoor dining. Mobile acted before the state did, and Jefferson County acted early and was more restrictive than the state.

Dr. Scott Harris, the state health officer, on Tuesday said that Jefferson and Mobile counties are the only two of Alabama’s 67 counties in which the health officer has authority to issue wide-ranging orders.

“Those are the only two independent metro health departments in the state,” said Harris.

The rest of the counties fall under the state department and can’t act independently in this pandemic.

‘Proactive’ order

Wilson’s order in Jefferson County came on March 17 when, at the time, 17 confirmed cases of coronavirus were reported in the county.

Eichold’s directive in Mobile came one day later, on March 18. At the time, there were no confirmed COVID-19 cases in Mobile County, prompting Stimpson to say he would not have made a similar decision.

Eichold, during a news conference Wednesday, said he felt he did the right thing. In Mobile County as of Thursday morning, there were 18 confirmed cases. Jefferson County was at 144, according to statistics published by the Alabama Department of Public Health.

“People ask why did we take the action we did before we had the first case,” said Eichold. “It’s easier to keep the cow in the barn than it is to chase the cow. We were trying to be proactive. The goal of public health is to prevent illness and the spread of disease.”

Independent departments

The health orders in Mobile and Jefferson counties came before a similar order was made statewide by Dr. Scott Harris, the state’s health officer since 2018.

- Wilson, with Jefferson County, issued the first order on March 16, requesting restaurant and bars to no longer permit on-site dining.

- Harris, the State Health Officer, followed up on March 17 with a similar order for St. Clair, Blount, Shelby, Tuscaloosa and Walker counties.

- Eichold, in Mobile County, submitted his health order on March 18.

- Harris and Alabama Gov. Kay Ivey then made their statewide directive on March 19.

Harris compared the authority granted to Wilson and Eichold to the authority granted to health officers in larger metropolitan cities around the U.S., including city health agencies in Atlanta and Nashville.

“Many times, the largest cities in those states have independent metro health departments,” said Harris.

Separate jurisdictions

Local health authorities and county health officers were first established in Alabama’s 113-year-old State Constitution. The county health officers, according to the constitution, are requested to report cases of diseases “in imminent danger of spreading” to the chairman of the county board of health and to the State Health Officer.

Jefferson and Mobile counties, however, function differently than the other county health boards, according to information provided by the Mobile County Health Department.

The two receive direct federal funding and are classified as separate jurisdictions within the Alabama Department of Public Health.

Lori Lein, general counsel with the Alabama League of Municipalities said that Jefferson and Mobile counties, long the state’s two most populous counties, had their health departments structured “decades ago” through local legislative acts.

She said the health officers in both counties “have the authority of the state and can exercise it.”

Wilson, since the March 16 order, has issued more widespread restrictions as COVID-19 cases continue to soar in Jefferson County. Hair salons, barbershops and retail stores have since been ordered closed.

Home rule

The Birmingham City Council, on Tuesday, then voted unanimously to support a “shelter in place” ordinance that prohibits residents from leaving home unless they have an essential job to the public good, they need to pick up groceries or medicine, or wish to exercise.

The Birmingham ordinance, effective only within city limits, was approved the same day that Harris and Ivey said there were no plans for a statewide “shelter in place” directive.

Eichold, on Wednesday, said he wasn’t looking at doing something similar in Mobile County – where 10 COVID-19 cases have been confirmed – but indicated that such authority for him was another “tool in the toolbox.”

The Birmingham ordinance drew the attention of Alabama Attorney General Steve Marshall, who determined Wednesday that it was OK for a town or city to act with a “shelter in place” order in a time of an emergency, but that a “recommendation from the county board of health, where applicable, is advisable and strongly preferred.”

From minimum wage to Confederate monuments, Birmingham has long butted heads with state leaders over policy matters, bringing Alabama’s lack of home rule authority to the forefront.

Under states with expansive home rule authority, cities and other units of local government have more authority to handle local affairs and pass ordinances without state interference.

But Alabama is considered a “Dillon’s Rule” state, which means local governments are limited to the powers granted to them by the Legislature.

Jess Brown, a retired political science professor at Athens State University and a longtime observer of state politics, said the unique authority that Jefferson and Mobile county health officers have does come with a bit of budgetary oversight from Montgomery.

“In Alabama, the Legislature, through the appropriations process, is ultimately in the driver seat on everything,” said Brown. “They rule the roost because they can shut off the dollars.”

But Brown said that county health officers and fire marshals – not just in Jefferson and Mobile counties – carry a bit of authority during emergencies. For instance, if a business is viewed as “out of sync” with county health regulations, a county health officer “can get your doors padlocked,” Brown said.

“They are given a lot of authority in this state,” said Brown. “A lot of discretionary authority. The business of protecting public health, at least at some point in our history, was viewed as very important.”

Brown added, “But if they abuse it, they have to answer up the food chain.”

Eichold said he never anticipated having to issue a health order to shutter Mobile’s restaurants and bars. And according to Jefferson County Health Department, there has been no “recent history” of a health officer issuing a countywide health order.

“It’s reserved for very important and grave situations that negatively impact the health and well-being,” said Eichold. “It’s rarely used. But these are the extenuating circumstances where public health has legal authority to take certain actions.”