BRATTLEBORO — It's OK for the Selectboard to suggest that people wear facial coverings in indoor public spaces to reduce the spread of COVID-19, but it is not OK for the Selectboard to require it.
That was the verdict rendered last week by the Scott administration, which explicitly told the town that it cannot impose an indoor masking mandate and that only the governor has that power.
While saying that the virus in Brattleboro doesn't warrant such a response, Brittney Wilson, deputy chief of staff to Gov. Phil Scott, did leave the door open for revisiting the policy should the risk escalate.
But for now, said Selectboard Chair Elizabeth McLoughlin, a resolution to “encourage” both vaccines and masks, unanimously approved at the Aug. 17 meeting, is still operative.
“This needs no state approval,” she said.
Subject to DOH approval
On Aug. 17, the Selectboard, acting in the legal role as the town's health commissioners, voted 4–1 to reinstate the masking rule that the town had dropped in June.
However, Town Manager Peter Elwell said at the time that the decision would be subject to the approval of the Vermont Department of Health.
State law allows a local board of health to “make and enforce rules” in its municipality “relating to the prevention, removal, or destruction of public health hazards and the mitigation of public health risks,” with the approval of the commissioner of health.
In an Aug. 24 email to Elwell, Wilson wrote that while the administration recognized the town's “desire to exercise some measure of local control,” state officials advised that the town “consider withdrawing [its] request” to Health Commissioner Dr. Mark Levine.
Wilson urged the town to “instead review the general statutory or charter powers which may be available to [its] jurisdiction at this time for this purpose.”
The town currently requires the wearing of face masks in all municipal buildings, which Wilson affirmed was within the town's legal right.
Montpelier adopted a similar policy, backed by state law “regarding the charge and supervision of public town buildings,” she wrote. “We have no objection to Montpelier's more narrow jurisdictional approach.”
Wilson wrote that the state's current policy position “is that mask use is recommended for people who are unvaccinated in indoor settings.”
She said the administration is “following the data closely and should the data demonstrate it is warranted, we would consider additional mitigation recommendations with the reimposition of a statewide state of emergency, but only if mandates were to be demonstrably necessary.”
In a follow-up email to Elwell from Wilson sent on Aug. 26, she wrote that the town would need Scott's approval for policies involving COVID-19 response or recovery, based on a June 21 executive order.
“You have asked the commissioner of health to approve Brattleboro's proposal to exercise an extraordinary regulatory power while there is no state of emergency. Mandatory masking has only been exercised or permitted by the governor during a declared state of emergency,” Wilson wrote.
She wrote that Scott would not approve Brattleboro's request, citing low test-positivity rates, high levels of vaccination, and zero COVID-19 patients admitted to Brattleboro Memorial Hospital and the Brattleboro Retreat as of that date.
“Though variants have required continued monitoring and management, at this time the data does not justify a state of emergency,” Wilson wrote.
“We are following the data closely and, should the data demonstrate it is warranted, we would consider additional mitigation recommendations with the reimposition of a statewide state of emergency,” she added.
In response to Wilson, Elwell said that “I do not have the authority to withdraw the Selectboard's request” and that “until and unless the Selectboard decides to withdraw that request, it is my responsibility on their behalf to ask the state to act on this matter, rather than simply urging Brattleboro to withdraw.”
Elwell said that, “on behalf of the Selectboard, I respectfully request that you refer this matter back to the Commissioner of the Department of Public Health so that this matter can be addressed as intended in Vermont Statutes.”
“Mandatory masking has only been exercised or permitted by the Governor during a declared state of emergency,” Wilson responded. “That said, your request is not being granted at this time.”
“However, should the data and hospitalization data change for Brattleboro, we could revisit this issue,” she acknowledged.
There are no plans for the town to appeal the decision.
Playing politics?
At his weekly news briefing on Aug. 24, Gov. Phil Scott said his administration will stick with current state COVID-19 guidance and has no plans to reinstate mask or other emergency restrictions in the wake of this month's surge of new cases linked to the Delta variant.
Scott said that based on current data, returning to a state of emergency is unnecessary and doing so would “abuse” that power.
With schools in Vermont reopening for in-person education for the 2021–22 school year, some top lawmakers say the state needs to provide clearer guidance to schools. For now, the state is recommending, not requiring, that students and staff start the school year masked.
In an Aug. 24 news release, Senate President Becca Balint, D-Brattleboro, said many parents, including herself, remain anxious about sending their unvaccinated children back to school.
“It is unclear and confusing to thousands of parents across Vermont why students, faculty, and staff are not being required to wear masks in schools at a time when we have community spread of the virus and our youngest children don't have the protection that adults have available to them,” she said.
State data show that case growth is starting to slow down in Vermont, that breakthrough cases are rare, and that the state's high vaccination rate - now at 85.6 percent of those eligible - is protecting residents from the worst effects of the virus.
Children under age 12 have not yet been authorized to receive vaccines, but that restriction could change soon, as the federal government is expected to authorize the Pfizer vaccine for emergency use for this age group by the end of September.
However, the Selectboard was a bit surprised that the rejection of their mask mandate came from the governor's office, not from the Department of Health, to which it was addressed.
In Wilson's email, she wrote that the request was passed to the governor's office “as part of the State's larger process of data modeling and policy development.”
Board member Tim Wessel, who cast the only dissenting vote on the mask mandate, said he thought that the governor's office statement “is clear and appropriate.”
“But I'm trying to remind everyone that, at the same meeting, we also passed a strong statement supporting indoor masking and vaccinations that was added upon my urging,” Wessel said. “That resolution was unanimously passed, and was the correct thing to do.”