Public health officials argue over mask requirements

By 
Casey S. Elliott
Wednesday, July 22, 2020

EDITOR’S NOTE: Profanity is used in this story.

Public health officials sparred over board authority and face covering mandates, in a filled-to-capacity public health board meeting Friday.

A divided board approved plans for some of the usual Labor Day events – the county fair, the animal sale and auction, and the Jaycees rodeo. The concert plans were not approved (see related story).

The ongoing coronavirus pandemic and recent spike in cases statewide prompted Gov. Steve Bullock to require counties with four or more active COVID-19 cases to wear masks or face coverings in most situations beginning July 15. The county had five active cases Tuesday, public health said.

The meeting, held in Fifth Judicial District Court, had a maximum seating capacity of 30 individuals, to provide six feet of space between each. All but three people in attendance wore masks; county sheriff’s deputies offered masks to those who did not have them. Two people declined to wear them, and the third told the board he had a medical condition preventing its use.

Public Health Director Sue Hansen asked board members how they would like to proceed regarding the mask rule, also pointing out board member Mike Klakken was wearing his mask incorrectly.

Bullock’s mask order states: “businesses, other persons responsible for indoor spaces open to the public, and sponsors of organized outdoor activities may deny entry, refuse service, or ask to leave any person...who refuse to wear a face covering. If such a person refuses to wear a face covering and refuses to leave the premises, a peace officer may enforce the state’s trespassing laws and any other laws the person may violate.”

Criminal trespassing is a misdemeanor under Montana law, punishable by a fine up to $500 and up to six months in jail, or both.

Exceptions are for medical reasons; for children under age five (though children between ages 2 and 4 are recommended to wear a face covering), persons engaged in strenuous physical activity that makes wearing a face covering impractical or unsafe; those consuming food and drink in an establishment that serves either; persons giving a speech or engaging in an artistic, cultural, musical or theatrical performance (audience must be at least six feet away); those undergoing a medical evaluation, diagnosis or treatment; or those removing the mask temporarily for identification purposes.

Klakken said he believed he was wearing his mask correctly, moving it down when speaking. Hansen fired back that he was not covering his face when not speaking, which is in violation of the order.

“...It is on the business owner or the sponsor of the event or activity – in this case it is on the board of health – to enforce the mask rule in its presence,” County Attorney Jed C. Fitch said. “If a person refuses to comply, you can ask them to leave. If the person refuses to leave, that is trespassing in a private business and a person can be ticketed individually, That is the mandate.

“Yes, the board of health should be enforcing the mask mandate inside. It doesn’t matter if it’s 50 people or not. If you are inside a place, masks are mandatory regardless of the number,” he added.

The board did not ask the unmasked individuals to leave, or direct deputies to issue tickets.

Dillon Police Chief Don Guiberson, attending the meeting by telephone, said the mask requirement puts law enforcement in a difficult position and asks everyone to comply.

“I think all of us, everybody involved here, is doing their best in what we feel is right for the safety of the public,” he said. “I’m going to be frank here. I hate to use language like this but this is a really shitty position for everyone. Nobody signed up for this COVID thing. I just ask that we try to follow the mandate as the leaders of our community.”

Klakken and members of the public asked what the board intends to do when the county’s active case count drops below four. At that point, masks are strongly recommended in Bullock’s order but not required.

Hansen said the board of health must decide if it will continue to require masks in those instances.

“We can’t keep going back and forth – that’s crazy, nobody’s going to be able to keep up with it,” she said.

“For me the simple answer is to wear a mask all the time,” Health Officer Dr. Megan Evans said.

The board did not make decisions regarding the mask mandate Friday.

Klakken and Dillon resident George Warner continued to question the board of health’s authority to interfere with any events or develop restrictions related to the pandemic.

Warner has raised those points at every meeting of the board since Bullock issued the stay-at-home order in March. At the last meeting, Fitch suggested Warner file an injunction in Fifth Judicial District Court if he disagreed with the board’s authority.

“I still stand by my conviction that (the public health board) does not have the authority that is granted under the statutes,” he said, referring to Montana law. Warner argues the board of health, a combination city/county entity, must abide by the bylaws that created it, and those bylaws do not include provisions for closing or limiting events such as the fair, rodeo and concert.

Montana law authorizes local health officers to take steps to limit contact between people in order to protect public health from imminent threats, including but not limited to ordering the closure of the buildings or facilities where people congregate and canceling events. Montana law also states local boards of health cannot create regulations more strict than state ones, but Bullock’s emergency orders allow them to do so during the coronavirus pandemic.

Fitch told Warner previously to file an injunction with the District Court if he wished to contest the board’s decisions. Warner filed an administrative appeal and variances form with the county Monday afternoon.

The state of Montana updates case counts and active cases daily, and posts that information at covid19.mt.gov.