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Kent County Statement on Pre-K-6 School Mask Public Health Order

Kent County has come out with a statement regarding their relationship to the Kent County Health Officer Adam London, and whether they have any authority over him or his public health orders.

From Kent County:

On Aug. 20, 2021, the Kent County Health Department issued a public health order requiring masks be worn by students inside pre-kindergarten through sixth grade schools. We have subsequently heard from thousands of concerned residents, both pro and con, regarding the topic of masks in schools. At a recent Board of Commissioners work session, more than 150 community members provided comment on COVID-19, the value and concerns of facial coverings, the rights of parents, and the role of government.

Since this meeting, the Kent County Board of Commissioners has been working to further understand the authority of the Kent County Health Officer. Our in-house legal team engaged in exhaustive research into this question and provided a comprehensive opinion to the administration. Next, we took the extraordinary step of seeking a second opinion from outside counsel, Warner Norcross & Judd. Both opinions concluded that neither the Kent County Board of Commissioners nor the County Administrator/Controller have the authority to intervene in the health officer’s performance of his statutory duties under Michigan’s Public Health Code.

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.” [MCL 333.2428(2)].

Under his statutory duties and authority established by this law, Dr. Adam London issued a local public health order requiring masks be worn in pre-kindergarten through sixth grade educational settings. When the public health order was issued on Aug. 20, all epidemiologic measures of COVID-19 in our community were trending in the wrong direction and continue to do so.

Additionally, local COVID-19 hospitalizations were trending and continue to trend in the wrong direction.

The surge in positivity rates, new cases, and hospitalizations closely matched the early days of the Delta variant-related surge in other states. Therefore, Dr. London 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.

Some members of the community have since called on the Kent County Board of Commissioners to rescind the public health order, remove our local health officer, or defund the health department. However, the Board of Commissioners is prohibited by State law from taking any of these actions. Our legal opinions 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:

o Prevention and control of diseases

o 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.

In conclusion, the local public health order requiring masks be worn in pre-K – 6th grade schools has the full force of law and the Kent County Board of Commissioners have no legal authority to intervene in this action. Residents are encouraged to voice their concerns over the authorities granted to local public health officers under the Michigan Public Health Code to state lawmakers.

We appreciate all the comments we have received on this topic, and we trust this statement clarifies the role of the Kent County Board of Commissioners. We encourage everyone to remain steadfast in helping to keep our community healthy and in supporting the dedicated Kent County Health Department team that has worked diligently over the past 20 months to do the same.

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