Central District Health, Board of Health
Director Russell Duke and Board
707 Armstrong Place
Boise, Idaho 83704
December 7, 2020
Dear Director Duke and Board,
It is a step in the right direction that this board, in response to public comment, has revised its December 2, 2020 draft order for Ada, Boise, Elmore, and Valley counties. However, its December 4, 2020 draft order is still wholly unacceptable, and in fact, unlawful.
First, the restrictions it levels on individual freedoms are constitutionally impermissible and continue to be in many cases arbitrary and inconsistent with one another. Second, many of its orders are vague and leave individuals and businesses unable to ascertain whether they are complying with orders—orders that carry a misdemeanor penalty for any violation. Lastly, Central District Health does not possess the authority under Idaho Code to issue such orders.
Before listing the above objections in more detail, however, it should be noted that the structure of the upcoming meeting under which the board will meet and consider this order likely violates Idaho’s Open Meetings Law:
To permit only five members of the general public to attend Central District Health board meetings in-person, and further, to prohibit those members from making any comment to the board, as CDH is doing, is unreasonable. Therefore under the guidance given in the Idaho Open Meeting Law Manual, is likely unlawful.
The purpose of that manual, published by the Idaho attorney general’s office and released in 2019, is “to inform government agencies of their obligations, and citizens of their rights, under Idaho’s Open Meeting Law.”
In fact, it states that a public agency “may adopt reasonable rules and regulations'' on the public’s attendance, but, for the purpose of “ensur[ing] the orderly conduct of a public meeting and to ensure orderly behavior.” However, to prohibit almost all of the public from attending meetings in person, and then to arbitrarily prohibit them from commenting, has little to do with ensuring public order. Question 18 of that manual goes on to cite Nevans v. City of Chino in this regard, noting that while such agencies do possess the ability to “enforce rules and regulations necessary to protect its public meetings,” those regulations can in fact be “too arbitrary, capricious, restrictive, and unreasonable.”
Further, The Open Meeting Law Manual cites Noble v. Kootenai County to point out that public bodies “cannot make it practically impossible for the public to be present at a meeting.” The court held, “Idaho’s open meeting laws are designed to allow the public to be present during agency hearings.” On this point, the manual concludes, “In any event, the governing standard is the reasonableness of the rules and regulations.”
CDH is in fact allowed to restrict the number of people in attendance. Further, it is not required to allow public comment during meetings. However, not only is CDH making it practically impossible for the public to attend board meetings in-person, being that only a few people can attend, but it is quite unreasonably and arbitrarily disallowing any comment from those few actually allowed to be present, with no stated purpose for their doing so. Therefore, it seems likely that under guidance given by the attorney general’s office, the rules and regulations CDH has instituted, taken as a whole, are in fact unreasonable, and therefore violative of Idaho’s Open Meetings Law.
It should be noted that this likely violation follows numerous other Open Meetings violations by CDH in the last 6 months, and in keeping with Idaho Code 74-208(1), if found to be a violation will nullify any actions taken at this meeting and further open members up to sanction.
That said, please consider the following OBJECTIONS to the the December 4, 2020 draft order:
Perhaps most illustrative of CDH’s inconsistently applied restrictions, while this order modifies the December 2, 2020 draft order in this regard, is while it would allow most athletic events to proceed once again, it would simultaneously require the closure of all dance floors at bars and nightclubs. Is dancing really more dangerous than a contact sport such as football? While the board may personally believe that athletic activities such as football are more essential to the public good than dancing is, it is not within their power to make such arbitrary decisions for the general public.
Also, while the draft order prohibits gatherings of 10 people or more, both public and private, it expressly excludes all educational activities from the definition of gatherings. Effectively, then, this order allows all school functions to proceed in-person, irrespective of gathering size, while limiting all other gatherings to 10 persons, with the exception of religious activities and political expression.
While well intended, such arbitrary and nonsensical distinctions regarding which gatherings are permissible and which are not permissible are indicative of the destructive inconsistencies throughout this order that do little to keep Idahoans safe.
CDH is in no position to and should not forcibly shut down any schools. That said, it makes little sense that schools are able to manage their affairs and remain open, as they follow current social distancing protocols, while at the same time, this board simultaneously declares that businesses are unable to similarly manage their affairs freely. In doing so, the board is treating educational and business interests inconsistently, and doing so quite arbitrarily.
In fact, inconsistent standards and the inconsistent reasoning behind those standards have been amply demonstrated during recent CDH board meetings.
For example, during its November 17, 2020 meeting, CDH Director Russell Duke noted that the advisory opinion being proposed at that meeting did not include restrictions on schools because they had implemented satisfactory plans and that students were safer in schools than in non-controlled environments. Conversely, just two weeks later at the board’s December 1, 2020 meeting, Kimberly Link, Program Manager of Communicable Diseases at CDH commented, “We know that Boise Schools have already switched over to remote learning just because of the challenges of managing a safe school environment.” As most people know by now, inconsistencies such as these have and continue to plague coronavirus protocols. This order only furthers that dilemma.
Rather, businesses, as well as private citizens, are just as able to create protocols which keep themselves and others safe, just as schools are able to do. Many of the restrictions levied on businesses are simply nonsensical. People see and fully understand, for example, that it does not make sense to require that masks be worn at restaurants while standing, and to not require them while sitting. People see and understand that it does not make sense to limit gatherings to 10 people, while allowing big box stores to effectively have gatherings of hundreds of people.
Instead of maintaining its present course, CHD should trust businesses and the citizenry at large and should therefore allow businesses to conduct their affairs without needless, arbitrary one-size-fits-all orders, some of which will bankrupt them, again, ironically under the guise of assisting them. Accordingly, CDH should remove all restrictions levied on businesses in this order, for the sake of consistency, fairness, and in matching its willingness to do so with respect to schools.
This order would limit gyms and other fitness exercise facilities to 50% capacity. It would additionally limit bars and nightclubs, depending on their occupancy permits, to anywhere from 50% all the way down to 20% of capacity. In an economy already reeling from previous restrictions and shutdowns, it is not reasonable to think establishments such as they can economically survive such capacity limits. This order requires clear physical barriers be placed between patrons and servers at bars and restaurants. The order even requires bars and nightclubs to “utilize security personnel to enforce COVID-19 safety protocols, including physical distancing.”
In other words, regarding personnel, the order mandates that if such personnel do not already exist, that bar and nightclubs hire employees during a time many are already finding it difficult to survive financially, and then further have them take the place of city enforcement officials. It’s curious that similar enforcement requirements do not exist with regard to restaurants, or, for example, schools. Requirements such as these are not only flatly inconsistent with one another, but financially onerous, and must immediately be removed from the order.
Section 1 of the revised order disallows gatherings of 10 or more people, both private and public, with the exception of political expression and religious activities. However, the order removes “educational activities” from the definition of gatherings, exempting them and defining educational activities as “activities involving students taught by an educator in a school or equivalent setting.” While it does appear this exemption includes traditional school settings, more clarity is needed to discern what constitutes an “equivalent setting,” and further, what lawfully constitutes an “educator.”
As this board is no doubt aware, thousands of Idahoans, especially given recent school closures in various areas across the state, participate in non-traditional educational activities from home and otherwise, for example, educational pods and educational co-ops. The present order needs to expressly clarify that these activities properly qualify as an “equivalent setting.” Also, being non-traditional education settings, such systems often employ learning coaches, tutors, and parents, who take the place of more traditional educators. Unless the order is revised to include more definite definitions in both of these regards, it will cause unnecessary hardship regarding whether or not those involved in these very prevalent and non-traditional educational settings are in compliance with the order or not.
This order would allegedly carry the force and effect of law. Therefore, it is incumbent upon the board that all orders contained therein be fully discernable in order to afford both proper notice as well as the opportunity for all Idahoans to be fully compliant, else such orders are effectively void for vagueness. Despite previous comments to that effect, many of the separate orders contained in this order still do not afford residents such opportunity.
Again, for example, there are no discernable standards whatsoever for enforcing the requirement that employers “Ensure that employees work from home whenever possible.” “Whenever possible” provides no standard by which Idahoans can gauge enforcement or non-enforcement. As such, this order leaves business owners speculating whether they are being compliant or not, as they attempt to gauge how and whether to change their entire business model to conform with such an order. In doing so, it permits a standard of enforcement that is unintelligible to business owners.
The same can be said for the orders requirement that “Businesses must implement delivery/curb-side services when possible.” What if this is a financial impossibility, considering the hardships most service industry providers are currently experiencing? Is curbside nevertheless a requirement for such businesses, irrespective of financial considerations? Will businesses be prosecuted for claiming such financial exceptions exist? In other words, what precisely constitutes, “when possible?” Leaving business owners having to simply guess what the standard is so that they can only hope they are not either cited or shut down, that is, if they subjectively determine that doing so is not possible should not be a choice with which they have to contend—especially during such trying times.
One further example of some of these orders likely being void for vagueness is the proposed requirement that employers “Provide adequate sanitation and personal hygiene for employees, vendors, and patrons.” The violation of this requirement, just as is the case with the previous two orders, is punishable as a misdemeanor and also has no discernable standards for compliance. What is “adequate sanitation” or “personal hygiene” exactly? This being the case, these, and other similarly situated requirements must be removed from the order.
The amended draft order still prohibits gatherings, public or private, or 10 or more people, despite only slight revisions. However, the First Amendment prohibits the government from limiting the ability of the people to peaceably assemble. This basic constitutional guarantee does not pertain to only gatherings of fewer than 10 people. It is also far more expansive in application than as to only apply to political expression and religious activities. Therefore, all blanket prohibitions of gatherings of 10 or more people, as this order would institute, is an unconstitutional order on its face.
While this order would lift the prohibition on visits to long term care facilities, as instituted in its December 2, 2020 draft, it still specifically prevents loved ones from visiting one another at jails and state correctional facilities. Additionally, it levels such stringent conditions on such visits so as to bring into question the possibility that visitations will be able to effectively occur. For facilities without such restrictions, such as jails and correctional facilities, they already have it in their power to temporarily prohibit visits, and some are already doing so, such self-imposed prohibitions do not carry the force of law, and can therefore be modified in haste, situationally if need be, dissimilar to the proposed order. In any event, all of these facilities are in a better place than CDH to ascertain their own status, needs, and protocols.
Both the statewide Stage 2 order presently in operation, as well as CDH’s own order for Ada County from October 20, 2020, allow for broad exemptions for both persons with medical as well as mental conditions that might prevent them from being able to wear a mask. The present draft order still effectively narrows medical exemptions by listing only a few select permissible medical exemptions for mask-wearing while further entirely removing exemptions for all mental health conditions that might prevent an individual from wearing a mask.
Completely irrespective of whether mask mandates are prudent or even lawful, it is unreasonable to not allow for the existence of various mental conditions to serve as exemptions to mask wearing, as this draft order does. PTSD, anxiety, and various intellectual disabilities are just a few such conditions, the reality of which this order wholly and quite unreasonably ignores in its attempt to close what it might otherwise view as loopholes in previous orders.
Further, both the statewide stage order presently in operation, as well as CDH’s own order for Ada County from October 20, 2020, state that residents are not required to show documentation to prove any mental or medical disability. However, this draft order removes language affording such persons the ability to not have to show documentation with regard to their condition.
To wholly disallow for these mental health exemptions, and to then additionally require elderly or persons with a medical to have to provide documentation proving they cannot wear a mask unquestionably puts an undue burden on already vulnerable populations of people and could additionally have the effect of also limiting their freedom of movement.
The revised order only adds narrow exemptions for deaf persons, persons for whom wearing a face covering might present a risk in their work, and those eating and drinking at restaurants. It’s curious that these exemptions were included in previous orders, removed, and now again reinserted. This cognitive dissonance on the part of the board is again exemplary of the numerous logical inconsistencies throughout this and previous orders.
Therefore, mental health exemptions must be re-inserted in the proposed order. Additionally, documentation proving either mental or medical conditions should not be required, as has been the case in all previous advisory opinions and orders. CDH does not have the authority to mandate that residents wear face coverings. However, if it does attempt to do so, it is unreasonable to not reinsert the above exemptions to that mandate.
Idaho Code 39-414 gives the Board of Health in each district the “powers and duties” to “do all things required for the preservation and protection of the public health and preventative health.” This appears to be a broad grant of power. In fact, it is such a broad grant of power, one really ought to question the likely intent behind such language.
It is unfortunate that this board, and other boards of health in Idaho, have interpreted this provision of Idaho Code to effectively mean that they can write and enforce any lawful order having to do with public health, and in so doing, effectively bypass all levels of government, as well as all personal civil liberties.
Rather than a limitless grant of authority, the portion of Idaho Code quoted above contextually appears intended to simply fully empower boards of health across the state to carry out all of the different and varied daily responsibilities for which they were created. In fact, the portions of code immediately following the above-quoted code attempt to more fully enumerate those responsibilities with great specificity.
Does the CDH really believe the intent of the legislature in 1970, in creating health districts, was to empower them effectively as the supreme and unquestioned lawmakers in the land during times of pandemic? Even now, this board would be well advised to not attempt to stretch the limits of our constitutional norms, as so many public officials have done of late. As United States Supreme Court Justice Neil Gorsuch stated just two weeks ago, “Even in a pandemic, the Constitution cannot be put away and forgotten.”
The proposed order is inconsistent, incomprehensible, violative of individual liberty, destructive to the economy, and not within the board’s authority to grant. As such, it should not be approved.