Is It Legal For Bethel To Mandate COVID-19 Testing At Airport? YKHC And Sen. Hoffman Think So

Aug 28, 2020

People leave the Alaska Airlines airport terminal in Bethel on April 29, 2020. YKHC CEO and President Dan Winkelman says that less than 50% of inbound passengers volunteer for testing at the airport.
Credit Katie Basile / KYUK

The Yukon-Kuskokwim Health Corporation is putting pressure on the Bethel City Council to mandate COVID-19 testing at the airport. YKHC is arguing that the city has the legal authority to pass such a law, and now they’re bringing in the region’s state senator and the Alaska Department of Law to weigh in. Those arguments appear to be gaining some traction with the city. 

YKHC has announced over 80 cases of COVID-19 since the pandemic began, with over half of those coming in the past month. Still, the health organization says that there is no community spread in the region. That’s because so far, all cases have been traced back to people who traveled into the region.

But once contact tracers lose track of how COVID-19 is moving through the region, there will be community spread, and the battle against the pandemic will shift dramatically in the virus’s favor. YKHC CEO and President Dan Winkelman says that this is a crucial moment for Bethel and the region.

“We have an opportunity now to manage this disease, and to actually prevent community spread from happening. This is a rare opportunity,” Winkelman said. “Once community spread is in a large area, like 6,500 people here in Bethel, it's going to be very difficult.”

To prevent community spread, Winkelman went before the Bethel City Council, imploring members to mandate that people get tested when they arrive at the airport. He said that less than 50% of inbound passengers volunteer for testing.

“The airport is, as you know, the gateway to the Y-K Delta,” Winkelman said. “If everyone would just go there and get tested when they came in, we would be able to actively manage this from turning into community spread here in Bethel and in other villages.”

Council members, advised by Bethel City Attorney Elizabeth "Libby" Bakalar, said that they didn’t have that power. They said that since Bethel is a second class city, it doesn’t have health powers to enforce testing at the airport. Winkelman, a former attorney himself, disagrees.

He points to the Alaska Department of Law’s guidance to municipalities on what powers they have during the pandemic. That guidance says that even a second class city like Bethel, when it declares a local disaster emergency, may “institute measures necessary to respond to the current declared disaster,” as long as Bethel doesn’t contradict any of the state’s laws.  

“The governor has essentially delegated his authority to communities throughout Alaska,” Winkelman said.

He’s turned to state Sen. Lyman Hoffman for his interpretation on what the law says. Hoffman has communicated with state officials, who he says agree with YKHC’s analysis.

“The state of Alaska is not prohibiting us, in talking with the governor's office on several occasions, not prohibiting second class cities from doing this,” Hoffman said. “I think that we’re completely within our legal rights to do so if we’re protecting the health, life, and safety of the residents of the Y-K Delta.”

Sen. Hoffman and YKHC held a meeting with City of Bethel officials to share their legal opinions, which have, in part, won over Bakalar.

“I think they make a good argument for that,” Bakalar said.

But Balakar says that the opinion held by YKHC and Sen. Hoffman is just one argument. Another, she says, is that a disaster declaration does not grant the city so much authority as to infringe upon an individual’s constitutional rights.

“This is government action against somebody's freedom and freedom of movement, freedom of travel, and health stuff,” Bakalar said. "There's an argument that we don't have the authority to do this. There's an argument that we do. There isn't really case law on it, and whenever you have an unsettled area of law you have potential liability." 

By liability, Bakalar means a lawsuit against the city.  For example, someone could object to being ordered to take a test, and a confrontation could end up in court.

YKHC and Sen. Hoffman argue that the state is backing up the cities’ authority during this time. Asked whether she agrees that the Department of Law is saying that Bethel can mandate testing, she said yes.

“Yes, that's what they're saying,” Bakalar said. “But they're not a judge. So I don't know if a judge would agree with the Department of Law.”

In response to the possibility of the city being sued, some Bethel residents are saying, ‘so what?’ Susan Taylor was one of three residents who called into the last council meeting, urging the city to mandate testing at the airport.

“The attorney says we might get sued. Well, she can defend us then. She's our attorney,” Taylor said.

As a lawmaker, Sen. Hoffman says that some risks are worth taking.

“Whenever the legislature passes legislation, every single piece of legislation, we could potentially be sued upon. And if we were of that mind, we would never pass any legislation,” Hoffman said. “And I would say in this case it comes down to 'are they as public officials going to do what they feel is necessary to save lives?' You know, it's as simple as that. I would proceed to go forward to save people's lives.”

Bakalar said that if the city council votes to mandate testing at the airport, she could and would defend that position in court. At the last council meeting, Mayor Perry Barr said that with all the new arguments they had heard, the council would take another hard look at whether the city would mandate testing at the airport.