ALBANY – Gov. Andrew M. Cuomo and Erie County Executive Mark Poloncarz don’t see eye to eye on whether the county, on its own, can demand fans be vaccinated for Covid-19 before attending Buffalo Bills and Buffalo Sabres games.
Their dispute boils down to an interpretation of 45 words in one section of a new state law.
As to Poloncarz's hope for packed crowds at Highmark Stadium and KeyBank Center, the county executive concedes the state – not Erie County – will decide to what capacity stadiums and arenas can be filled through the ongoing pandemic thanks to the Covid emergency powers Cuomo holds.
But the Democratic county executive, and some state lawmakers, believe the county can require the vaccinations at the two sports venues, while the Cuomo administration is adamant that a recent bill passed by lawmakers – and signed by the Democratic governor – did not weaken Cuomo’s authority to be the sole decider on an issue like vaccination for sports fans wanting to attend games in person.
The county also maintains that it can decide the vaccination issue on its own because it owns Highmark Stadium and KeyBank Center.
But the county leases the facilities to Empire State Development, a state agency, which in turn leases them to the Bills and Sabres. Would the county’s plan be a change to the terms of those leases?
“We still retain the power to set health standards," said Peter Anderson, a spokesman for Poloncarz. “Under the current lease arrangement, (New York State) has never had to approve the health standards set by Erie County. In effect, in this instance, the state is a pass-through entity and has always acted as such.”
45 words at heart of dispute
On March 5, Democrats who control the Senate and Assembly approved legislation restricting some of the emergency powers granted to the Democratic governor during the initial Covid outbreak last spring. Two days later, Cuomo signed it into law.
Democrats advanced the measure amid rising concerns about how Cuomo handled the Covid spread in nursing homes and claims, including by Attorney General Letitia James, also a Democrat, that Cuomo undercounted the number of Covid deaths of nursing home residents. Republicans said the measure did not go far enough and contend Cuomo still retains immense power to single-handedly manage the state’s Covid response.
The new law includes Section 2(e).
It reads: “No directive shall be extended or modified to the extent that such directive prohibits the adoption by any municipality of this state a local executive order within such municipality’s existing power except where such an order conflicts with any executive order issued by the state.”
That’s the section Poloncarz says gives him the vaccination order power. Counties decide local public health matters, though state and federal laws also affect health matters in localities. One belief by Poloncarz and supporters: The state can set Covid vaccination rules, but localities can make them stronger, though not weaker.
“The Assembly and Senate gave local governments the power to be more restrictive, like most other (Northeast) states. We intend on using it to protect the public," Anderson said.
Lawmakers say Section 2(e) was specifically inserted into the bill to restore local public health powers that the Legislature suspended while the Cuomo administration decided Covid responses, everything from business closures to Covid testing requirements.
“I know county executives were frustrated because of the executive orders from the state and that they didn’t have the ability to weigh in on them, and that was one of the things we wanted to rectify," said Assemblywoman Monica Wallace, a Lancaster Democrat.
The key matter is whether a locality’s action “conflicts” with existing Cuomo executive orders, and that term can be interpreted broadly. If Cuomo says capacity at a Bills game can be at 50%, the county can’t impose a 100% capacity order. On the flip side, the county could go lower – say, to one-third capacity – because it would not exceed the level set by Cuomo.
“Theoretically, I guess they could do that," said Wallace, a lawyer.
Cuomo calls Poloncarz wrong
The governor has publicly knocked down the Poloncarz plan, saying the county executive lacks the legal authority to mandate vaccinations.
The Cuomo administration maintains the March 7 law does not allow localities to create new Covid health rules. Rather, it permits them to restore local laws or orders that might have been suspended by Cuomo’s executive order last year. If Erie County had a previously existing vaccination order in place, it could do what Poloncarz is proposing. But, it didn’t, Cuomo officials say.
Importantly, Cuomo officials say, authority for dealing with communicable disease matters is an issue covered chiefly by state law.
“The county cannot cite this (new March) law as they don’t currently have the ability to mandate vaccinations only as a condition to enter a public place, and state rules continue to govern on important public health decisions like this, especially during a pandemic," said Richard Azzopardi, a senior adviser to Cuomo.
A mandatory vaccination order by Poloncarz would, no doubt, invite legal challenges by those claiming their rights are being violated to attend an event in a public setting. The state still faces a lawsuit from families who say their constitutional rights were violated by a 2019 state law that ended their right to cite religious beliefs to exempt their children from vaccination rules to attend public schools.
'Willing to work with them'
Counties have long had the legal authority to enact emergency powers to handle public health matters on a local basis, said Stephen Acquario, executive director of the New York State Association of Counties. The change came when those powers last year were suspended – until last month – during the Covid crisis.
Counties throughout the pandemic have pushed back or complained when Cuomo issued sweeping executive orders – without consulting local leaders – affecting the entire state, no matter an area’s Covid positivity rates in some cases. Acquario believes Poloncarz, as a county leader in a region that for several weeks has had the highest Covid positive rates in New York, can issue the vaccination order. Part of Poloncarz's goal is to prod – or even reward – people to get vaccinated in an area with worrisome Covid numbers and an excess supply of vaccine, he said.
“It is through mutual collaboration of the counties and the state that we achieved the best policies throughout this pandemic," Acquario said. "Every executive order issued by the governor was tested by county leaders, was pushed back on, argued over and ultimately revised to reflect the communities."
He predicted that a resolution will come because both Cuomo and Poloncarz want the same thing: more people getting vaccinated.
Since Poloncarz floated his vaccination mandate plan earlier this month, there have been no discussions between the county and state to resolve the matter.
“It is a long time before the season starts, and we’re willing to work with them on a plan that works," said Azzopardi, the Cuomo adviser.
Anderson, the Poloncarz spokesman, said the county fully intends to discuss the Covid vaccination and capacity plans with Cuomo’s office and the teams. He said if all fans are vaccinated, “full capacity is a realistic option."