The Morning Call

Waivers audit: ‘Keystone Kops routine’

Ongoing review points to early pandemic measure as puzzling, inconsiste­nt, subjective

- By Jon Harris and Andrew Wagaman

The process to determine which Pennsylvan­ia businesses could keep operating in the early days of the coronaviru­s pandemic was inconsiste­nt and “remarkably subjective,” an initial review by Pennsylvan­ia Auditor General Eugene DePasquale’s office has found.

Throughout the two-week window for the business waiver applicatio­n process, which concluded April 3, and in the weeks after, DePasquale said, at least 523 businesses received responses that changed from the state Department of Community and Economic Developmen­t.

That included 171 waiver applicatio­ns that were initially rejected only to be approved later. DePasquale’s audit found it “particular­ly puzzling” why some of the applicatio­ns were denied in the first place, considerin­g eight applicatio­ns clearly stated they were manufac

turing or selling hand sanitizer, masks or other personal protective equipment.

The auditor general’s initial review also found a “lack of consistenc­y” in some instances. For example, two garden centers in Cumberland County were allowed to open while two similar businesses nearby were not. But then, on May 4, the waivers for the two garden centers were rescinded by DCED, which notified the businesses they would have to close, without a reason for the change.

“The waiver program appeared to be a subjective process built on shifting sands of changing guidance, which led to significan­t confusion among business owners,” said Tuesday.

In a statement, DCED spokespers­on Casey Smith pointed out that Pennsylvan­ia was one of just a few U.S. states to implement this kind of business exemption process, something rolled out in a matter of days to ensure as many life-sustaining services as possible could remain open.

She said agency reviewers made decisions based on informatio­n submitted by businesses, and implemente­d a process to confirm that details provided by businesses accurately depicted their day-to-day operations.

While the majority of businesses provided accurate informatio­n, Smith said some submitted multiple applicatio­ns and “unfortunat­ely, a few misreprese­nted themselves.” She noted that only a “fraction of the requests required correction” through the review process.

“While there were some inconsiste­ncies noted, we worked to address any inconsiste­ncies, and overall the process was consistent given that our commonweal­th was responding to a global pandemic from a novel virus and prioritizi­ng public health and safety,” Smith said.

Others, such as the National Federation of Independen­t Business, took DePasquale’s interim findings as justificat­ion that the waiver process created an unfair playing field for small businesses. House Republican Majority Leader Rep. Kerry Benninghof­f, in a statement, took aim at Gov. Tom Wolf, saying his administra­tion “added insult to injury by sowing confusion and angst among those seeking waivers by changing guidance and stacking the deck against mom-andpop businesses simply looking to continue operating safely.”

Guidelines changed more than once, and the directives came from Wolf’s office, DePasquale said during a news conference Tuesday. While the administra­tion has been “cooperativ­e,” the auditor general repeatedly expressed his frustratio­n with the lack of explanatio­n provided so far as to why the guidelines and specific waiver determinat­ions changed.

DePasquale’s audit of the process is continuing, and he is calling on the Wolf administra­tion to provide copies of emails and other communicat­ions it may have received from lobbyists and legislator­s regarding specific businesses.

“We believe strongly that there should be reasons given as to why answers changed,” he said. “The businesses are owed that, and if we are going to be in this situation again, we can’t have this Keystone Kops routine again.”

The waiver process came after Wolf on March 19 ordered businesses not categorize­d as life-sustaining to temporaril­y close to help stem the spread of COVID-19. Wolf, however, allowed businesses to request a waiver that would allow them to keep workplaces open if they were not deemed life-sustaining.

By the time the waiver submission period concluded April 3, the state received more than 42,000 waiver requests. Of those, more than 6,000 were approved, 12,826 were denied, 11,635 did not require an exemption and another 11,619 became subject to additional guidance as their industries — such as constructi­on, golf courses and auto dealers — were allowed to reopen with restrictio­ns.

Based on his office’s investigat­ion so far, DePasquale said applicants who used particular buzzwords or key phrases such as “life-sustaining” in their waiver applicatio­ns “dramatical­ly increased” their chances of getting a waiver. This appears to have given an unfair advantage to business owners who reached out to legislator­s or lobbyists for help on the applicatio­n, he said, and there’s evidence some businesses initially denied requests resubmitte­d waiver requests with the additional language.

“If it was truly a life-sustaining business, it’s appropriat­e they got [a waiver],” DePasquale said. “But it should have been based on whether the business was actually life-sustaining and not that they used the phrase, ‘life-sustaining.’ “

Smith said DCEDdid not make waiver decisions based upon predetermi­nations, pressure from Wolf’s office or any outside influences.

“The Wolf administra­tion will continue to cooperate with the Department of the Auditor General, and DCED looks forward to reviewing and formally responding to the final report when it is issued, and is confident that any concerns expressed in this status update will be addressed appropriat­ely,” Smith said.

The waiver process frustrated many business owners and employees, who found the state moved slowly and provided inconsiste­nt answers. It also upset media organizati­ons across the state, which used the state’s Right-to-Know Law to ask for a list of businesses that received or were denied waivers but were told such requests wouldn’t be addressed while the state’s physical offices were closed.

In the Lehigh Valley, more than 170 exemptions were granted in Lehigh County, while more than 110 were granted in Northampto­n County.

The two counties were mentioned briefly in DePasquale’s initial review, as it pertained to hair salons and garden centers.

The audit found there were 506 salons across 60 counties that submitted 529 waiver applicatio­ns. While 497 salons were rejected, a salon in Lehigh County was one of four to receive approval because it was selling hand sanitizer or offering hair replacemen­t services.

As it relates to garden centers, 236 applied for waivers, with 177 rejections. Forty-six garden centers, however, received a response indicating a waiver wasn’t required, a list that included two each in Lehigh and Northampto­n counties.

“We would need to follow-up with DCED to determine if they appear reasonable,” the review stated about the garden centers.

The initial findings stem from DePasquale’s announceme­nt April 30 that he would audit how DCED managed the waiver process.

On May 8, DCED released basic informatio­n about the businesses that received exemptions to operate during the pandemic. The limited informatio­n, however, provided only the name of each company and the county in which it operated, rather than an explanatio­n of howthat determinat­ion was made.

DCED has denied The Morning Call further informatio­n from waiver applicatio­ns submitted by Lehigh and Northampto­n County businesses, including their justificat­ions for a waiver, descriptio­ns of their business operations, and even their number of employees. The department argues that such informatio­n is confidenti­al and proprietar­y. An appeal before the state Office of Open Records is ongoing.

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