BAKERSFIELD, Calif. (KGET) — Last month the Kern County Board of Supervisors voted to step back from a negotiated but unsigned contract with a local nonprofit organization that had agreed to reach out into dozens of potentially high risk communities with information about COVID-19 testing.
Now the responsibility falls directly to the Kern County Department of Public Health, which is scrambling to organize that outreach itself — and the Board of Supervisors is facing a possible lawsuit over an alleged violation of the First Amendment based on its reason for walking away from that contract.
The State of California has identified 35 communities, or census tracts, spread across Kern County’s vast landscape that need urgent attention in the fight against COVID-19. And the state delivered millions of dollars for Kern County to provide that attention.
But then the Board of Supervisors caught wind of something it didn’t like about the nonprofit it was about to formally hire to carry out that potentially life-saving work: Building Healthy Communities Kern had posted several messages on social media supporting police reform.
That prompted the Board to yank its $1 million outreach contract with the nonprofit group, part of an $8 million award from the state specifically for such purposes.
So now, the question: Does the nonprofit, which is funded in part by the California Endowment, have a right to express opinions on social or political issues? And does the county have a right to terminate a potential contractual relationship for reasons not related to the performance of that contract? Has the county made itself more vulnerable to litigation for having done so?
And most important, how will the residents of these 35 vulnerable census tracts get the information and testing programs they will need to stay safe and healthy amid this pandemic — and contribute to the county’s efforts to reopen its economy — as it moves backward in the state’s tier structure?
The work that the Kern County Department of Public Health had intended to delegate — freeing it up to take on other aspects of this public health challenge — will now be taken on by the Kern County Department of Public Health itself.
That will require the health department to hire dozens of temporary employees — presumably including some that are familiar with the language and culture of small or unique demographic groups that building healthy communities kern was already well established within.
Reyna Olaguez of Building Healthy Communities Kern said her organization was ready to go — and in fact had already started doing some of the contract work.
“I wish the board would have given us the opportunity to discuss the plan,” she said. “I think that this is about the plan not about the political issue that they brought up.”
The health department doesn’t have the time or inclination to debate any of this — not now, not when lives, health care infrastructure and economic recovery all hang in the balance.
Public Health Director Matt Constantine says it’s all about responding to the urgent need.
“Clearly our numbers are continuing to increase, so that’s a concern,” he said. “We didn’t want to waste any time. We didn’t want to miss a beat, so we’ve immediately started to try to develop our own internal program.”
This all plays out against a backdrop of legal questions and potential liabilities.
Was the Board of Supervisors within its rights to walk away from a verbal agreement with the nonprofit? The contract was on the board’s consent calendar, making it all but a formality.
A government entity penalizing a person or organization for expressing an opinion, would, in the view of some, constitute an open-and-shut First Amendment violation.
Some like Jordan Wells of the American Civil Liberties Union, which he says is prepared to file a legal complaint against the county.
” I can’t think of a more clear violation of the First Amendment,” he said, “than denying a government benefit, a government contract, what have you — retaliating against somebody for speaking out on a matter of political concern.
“Whatever your concern is, COVID and businesses reopening or your concern is for the First Amendment, what the Board of Supervisors did here makes no sense, and it elevates politics over badly needed COVID-19 outreach in the county.”
Three members of the Board of Supervisors declined to speak to KGET on the record about the situation — Zack Scrivner, who recommended that the board reject the proposed contract, David Couch, who had been working with the nonprofit developing a plan of action but was then absent for last month’s vote, and Leticia Perez, who was the one dissenting vote.
Lawsuits aside, Kern County appears to be moving backward in its fight to corral the coronavirus. It was in the red tier — or second-to-most restrictive classification — at the time it rejected the contract.
Three weeks and one contract rejection later, kern county — because of worsening COVID-19 numbers — appears likely to move back into the most restrictive tier, the purple tier.
The question now is, could it have been avoided?