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Prosecutor’s office: ARPA OK to spend

by ANNISA KEITH
Staff Writer | February 11, 2022 1:00 AM

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From concerns over vaccines to debt, there is growing debate among the region’s citizens and governments on the impact of spending coronavirus relief funds.

Some don’t trust the federal government; others do. The more the rules and legal requirements that accompany the American Rescue Plan Act are discussed, the more that all sides appear to disagree on what it means for Bonner County.

Proposed by the Biden Administration and passed by Congress in March 2021, ARPA approved $1.9 trillion of federal spending in response to the COVID-19 pandemic and the recession which followed. Idaho’s share is $1.89 billion, with only $85 million of that sum allocated as of Thursday.

Despite concerns about the stimulus’ impact on the national debt, Governor Brad Little said rejecting the money would be “unacceptable.”

“Rejecting the funds would mean California, New York, Illinois, and other big states get to spend Idahoans’ tax dollars. Rejecting the funds would mean Idaho gives up our say in how our allocated share gets spent. That is unacceptable. Therefore, Idaho will accept the allocation for our state,” Little said one week after Congress passed the relief package.

“We should not hastily spend the funds we receive. We should wait for guidance from the U.S. Treasury, so we responsibly allocate these resources. We must be thoughtful and deliberative in our approach,” Little said.

On Jan. 6, the U.S. Treasury shared their final rule on how the funds need to be spent in order to qualify for relief money. The ruling functions as the final word on what the guidelines are for spending ARPA money in the U.S.

Going into effect on April 1, 2022, the rule will replace the more restrictive interim rules that have been in place since the act passed in March 2021. However, all spending from 2022 will be analyzed through the legal perspective of the final ruling.

According to the final ruling, “[ARPA] recipients can choose to take advantage of the final rule’s flexibilities and simplifications now, even ahead of the effective date. Treasury will not take action to enforce the interim final rule to the extent that a use of funds is consistent with the terms of the final rule, regardless of when the [funds] were used.”

This sentiment has been echoed by local agencies. On Jan. 24, the Bonner County Prosecutor’s Office released a nine-page document outlining the office’s legal interpretation regarding the spending of ARPA money.

Citing two different Supreme Court rulings, the prosecutor’s office maintains that the federal government cannot impose future spending conditions on federal funds. In 1981’s Pennhurst State School and Hospital v. Halderman, “if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation.”

In 2012’s NFIB v. Sebilius, “though Congress’ power to legislate under the spending power is broad, it does not include surprising participating States with post-acceptance or retroactive conditions. Congress may not simply conscript state agencies into the national bureaucratic army.”

The Prosecutor’s Office report speculated on federal pressure to enact a vaccine mandate in the county.

“Even assuming [for the sake of argument] that Congress intended to delegate authority to the Executive Branch to enact a vaccine mandate, Bonner County would not be obligated to comply via its acceptance of ARPA funds because that condition was not stated unambiguously when the funds were accepted,” the report read.

Commissioner Chairman Dan McDonald maintains that if the federal government imposes legal requirements surrounding ARPA funds, the county will hold back from spending the money to avoid the requirements.

“The three commissioners here passed a resolution that we would obviously stand against the Biden Administration,” McDonald said on Nov. 2. “If [accepting the money] ties our hands to a degree, we will certainly give it all back, that’s a non-issue for us. But if it does not, then we are going to want to use it because it is your money, and our money.”

Despite legal opinions from local and federal levels, not all Bonner County citizens are convinced that county officials will be able to resist federal pressures.

“[The Prosecutor’s Office’s] memo was drafted from the perspective of spending ARPA money and the justifications needed to do so,” said Asia Williams. “The final treasurer rule states that ‘state, local, and Tribal governments face continued needs to respond at scale to public health emergency. This includes continued public health efforts to slow the spread of the disease, to increase vaccination rates and provide vaccinations [to new populations as they become eligible.]’”

Williams emphasized the increase in vaccination rates as a reason why the Treasury’s legal opinion regarding ARPA spending should not be followed. Many citizens publicly stand with Williams in opposition to any mandate or federal spending related to the pandemic.

Williams drafted a resolution that was revised and passed by county commissioners on Jan. 11, halting the spending of ARPA funds in the county. Williams has spoken out at commissioner’s meetings for many weeks against spending ARPA funds. Many citizens, like Williams, have been taking opportunities to speak at public meetings urging commissioners to return ARPA money to the federal government.

“ARPA funding comes with strings attached that I, as a Bonner County resident, do not want to be held accountable to in return for accepting the funding,” said Karen Getty on Jan. 26 at a Bonner County commissioners meeting. “The pattern has been shown that as we accept funding, the more we are held to the federal government requirements that are consequently more detrimental to preserving our American freedoms as we once knew.”

County officials in more than one branch of government mirror sentiments posed by Williams and Getty of the perceived legal strings attached to ARPA funding.

“For me, it’s not about the money, it’s about being under the control of the federal government,” Commissioner Steven Bradshaw said on Nov. 2. “It was written for them, by them. And it leaves an open door as wide as the equator for them to come in and take over the county.”

Sheriff Daryl Wheeler returned $18,486 of ARPA funding back to the county’s holdings on Nov. 2 upon learning of the possible legal ambiguity associated with the money.

“In light of the discovery of the strings attached to the ARPA fund’s monies, I will not follow applicable federal statutes, regulations, and executive orders of President Joe Biden or his administration,” Wheeler said on Nov. 2.

Other county agencies returned ARPA funding to the county including the Treasurer’s office and Emergency Medical Services.

However, not all were happy about returning the money to the county, insisting that opposition to the relief funding is a roadblock to the county’s financial well being.

Emergency Medical Services has spent a total of $800,300 in ARPA money since October. Since the passing of the anti-spending resolution on Jan. 11, EMS has since been returning the money to the county’s holdings. The most recent reimbursement on Feb. 9 was for $88,000 of laryngoscopes. An automatic CPR machine, ultraviolet disinfection equipment, and other devices were purchased using ARPA funding — all equipment that EMS Director Jeff Lindsey deems necessary for the services they provide in medical flights and ambulances.

“EMS is more frustrated right now than anything,” Lindsey said. “We’re frustrated because we see [ARPA funds] as such a public benefit. And when we see folks that are constantly trying to roadblock this and constantly throwing in all these conspiracies and all this stuff, we’re seeing the potential harm that it’s doing to our community.”

“It wasn’t stopping at ARPA, it was all federal dollars. These folks didn’t want any ties to anything federal. And a majority of what we do is federal. Tax dollars that the [federal government] has we’re getting back, and it’s the same for fire departments. Our levels of service would just go down tremendously.”

According to a 2022 study by Money Geek, a financial and economic outlet, Idaho receives $1.75 for every dollar paid in federal taxes — ranking 18th among states most dependent on the federal government.

Even though public discourse has been taking place for months, Bonner County commissioners intend to hold a public workshop in the coming weeks to discuss the Prosecutor's Office’s legal opinion, and what the next steps will be for ARPA funding in the county.

“We’re going to have a workshop. We’re going to talk about what it says and what the concerns are. Especially after reading it, I myself support spending the money — cautiously obviously,” said Commissioner Jeff Connolly on Thursday.

Although a date has yet to be publicly announced, the commission desires to hold the meeting sometime in February.

Citizens have weekly opportunities to express their views to the county commissioners at their weekly meetings on Tuesdays at 9 a.m.