County govt. can’t interfere with mask order for Covid

Allegan County’s legal counsel today opined that neither the county administrator nor the County Board of Commissioners has the authority to rescind the Health Department’s public health order for children in grades K-6 to wear masks in classrooms.

The Allegan County Health Department issued a public health order requiring masks be worn by students inside kindergarten through sixth grade schools. on Aug. 18. Since then there has been much pushback by parents and citizens, who have asked the county to overturn the order and even fire the health officer, Angelique Joynes.

Corporation Counsel Miller Johnson asserted that “neither the Allegan County Board of Commissioners nor the County Administrator have the authority to intervene in the health officer’s performance of statutory duties under Michigan’s Public Health Code.

The Allegan County Board of Commissioners voted 6-1 to adopt a resolution asking the health officer reconsider and rescind the emergency order.

Ms. Joynes, in response, said, “After careful consideration and in the best interest of protecting the public health of children K-6 grade; ACHD is not rescinding the order at this time. ACHD bases this decision on the recommendations from public health agencies, including the CDC and MDHHS, and Corporation Counsel.  Not unlike other neighboring county health departments that have maintained their similar orders, data was carefully reviewed and relied upon to form the basis of issuing and maintaining this order.

“ACHD is amending the order to include a more distinct data related timeline which will result in the order to be in effect until Allegan County remains in the low transmission level for seven consecutive days, or until six weeks past the date the COVID-19 vaccine is authorized and available to persons age 5 years through age 11.”

The Michigan Public Health Code was established by the Michigan State Legislature in 1978 for the protection and promotion of the public health. Specifically, the law states that health officers “may take actions and make determinations necessary or appropriate to carry out the local health department’s functions under this part or functions delegated under this part and to protect the public health and prevent disease.” [MCL333.2428(2)].

The health officer added, “When the public health order was issued on Aug. 18, all epidemiologic measures of COVID-19 in our community were trending in the wrong direction and our CDC level of community transmission continues to be high.  Additionally, regional COVID-19 hospitalizations were trending and continue to trend in the wrong direction.

“Therefore, Health Department determined a school mask order was necessary to protect access to in-person learning for those students who do not yet have access to the vaccine, to slow the rate of transmission, and to keep students and teachers healthy.”

Miller Johnson attorneys report legal review further concluded that:

• The Board does not have authority over local public health orders
• The Board may not remove a health officer for adopting a mask mandate
• The County Administration and Commissioners may face legal action if the Commissioners interfere in the public health order or remove the health director for issuing the public health order
• The Board of Commissioners may not defund the health department to change or negate a public health order
• If the Board defunds the health department, the State may take over the health department
• If a local health department fails to meet state requirements, the Michigan Department of Health and Human Services has the power to resume those functions itself, removing them from the local health department. Those requirements include:
• Prevention and control of diseases and prevention and control of health problems of particularly vulnerable population groups

Further, public health orders issued by local public health officers are not personal orders of the individual. Rather, the orders are issued in the Health Officer’s official capacity and remain in effect even after the individual leaves the office.