Central District Health, Board of Health
Director Russell Duke and Board
707 Armstrong Place
Boise, Idaho 83704
December 3, 2020
Dear Director Duke and Board,
I write to you today to voice my strong objection to the draft order released yesterday, December 2, 2020, entitled “RESTRICTION: Employers, Businesses, and Individuals in Ada, Boise, Elmore, and Valley Counties of Idaho.” It is my understanding that the Board of Health will be meeting tomorrow, December 4, 2020, at 5:15pm, to discuss immediate board approval of this draft. It is my hope that during that discussion you will entertain the following objections to that draft order as it is presently structured:
- This order arbitrarily and inconsistently restricts the civil liberties of Idahoans.
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.
I am not in favor or CDH either recommending or attempting to forcibly shut down 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 do the same, as it mandates that businesses follow numerous restrictions, some of which may put them out of business—even while the board has the audacity to proclaim such measures are intended to keep them open. The above-stated distinctions are arbitrary and nonsensical.
In fact, CDH members themselves have inadvertently admitted such inconsistencies at recent CDH board meetings.
For example, during the November 17, 2020 CDH board meeting, in response to an observation by board member Ted Epperly that schools were noticeably absent from having any restrictions levied on them by the advisory opinion being proposed at that meeting, Director of the Board Russel Duke responded that schools have implemented good plans already, and because of this, students are safer in the more controlled school environment than in what would otherwise be an uncontrolled non-school environment.
Conversely, during the December 1, 2020 meeting, Kimberly Link, Program Manager of Communicable Diseases at CDH commented, “As we look at where we’re sitting right now in our community, our schools, we know that Boise Schools have already switched over to remote learning just because of the challenges of managing a safe school environment in the context of having so much COVID.”
Are children safer in the controlled setting of schools, as Director Duke indicates is the case, or, as Ms. Link states, do we “know” and agree with remote learning because of the “challenges of managing a safe school environment?” Inconsistencies such as this have, and continue to be an issue for public officials with regard to coronavirus protocols.
I would submit a different course of action than the one the board seems set to take. 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. This distinction by CDH which allows schools to operate freely while leveling numerous restrictions on businesses is again arbitrary and nonsensical, and further, people see this.
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.
There seems, perhaps, to be a desire by some on this board to nonetheless institute these inconsistent restrictions on the residents of Idaho for almost no other reason than to make the point that COVID-19 should be taken seriously. I would caution you: The more of these inconsistent mandates CDH puts out, the less respect CDH will receive from the general public. These inconsistencies, of course, do little to foster a spirit of compliance and cooperation with the general public.
Instead of maintaining its present course, CHD should trust businesses and the citizenry at large, at the very least to the same degree as they are currently doing with schools, for the sake of consistency. CDH 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. Therefore, 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.
- Numerous orders are likely void for vagueness.
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. Many of the separate orders contained in this order do not afford residents this opportunity.
For example, there are no discernable standards whatsoever for enforcing the requirement that employers “Ensure that employees work from home whenever possible.” “Whenever possible” is really more of a suggestion rather than an order. It provides no standard by which Idahoans can gauge enforcement or non-enforcement. As such, this apparent quasi-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 more 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.” This requirement, the violation of which is punishable as a misdemeanor, just as is the case with the previous two orders just mentioned, also, not unsurprisingly, 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, if indeed it is passed in the first place.
- Various orders impermissibly prohibit freedom of association.
This order would prevent visits to long term care facilities, jails, and state correctional facilities—just a few examples of how this order prohibits free association. While such facilities already have it in their power to temporarily prohibit visits, and some are already doing so, such prohibitions by these facilities do not carry the force of law, as this CDH order claims the ability to do. Such being the case, even while such facilities may temporarily close themselves to the public, such requirements can be modified in haste situationally, as opposed to being constrained by a CDH order to this effect.
Additionally, such facilities are in a better place than CDH to ascertain their own status, needs, and protocols. If, therefore, any of the above-named facilities were to decide they are in a position to be able to allow loved ones to visit with one another, this CDH order would nevertheless sadly prevent that from occurring. The proposed order would additionally effectively prohibit most youth and adult sporting activities from taking place which is a further prohibition on free association. Such orders are simply not ones that CDH has in their power to decide, as explained in objection 6 below.
- It unreasonably lessens exemptions regarding masks.
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 exemptions for persons with medical and mental conditions. They both further state that residents are not required to show documentation to that effect. However, the draft order removes mental health exemptions and additionally removes language permitting persons to not have to show documentation with regard any conditions they might have.
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 currently 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 this board’s apparent overzealous attempt to close what it might otherwise view as loopholes in previous orders. To wholly disallow for these exemptions, and to then additionally require elderly or physically disabled persons to have to provide documentation proving they cannot wear a mask unquestionably puts an undue burden on already vulnerable populations of people and could have the effect of also limiting their freedom of movement.
Therefore, if a mask mandate is in place, 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.
- Issuing additional orders further exasperates an already unbalanced approach that currently exists in attempting to confront COVID-19.
CDH’s efforts in attempting to discern and advise on how best to preserve health care capacity is of course laudable. It should certainly undertake these efforts. However, this board would do well to consider, as I hope it has, the numerous downstream effects of it instituting a host of long term orders, and should balance any advisory opinion or order accordingly.
There is little doubt that COVID-19 restrictions have contributed to people losing their livelihoods, have in certain cases increased the likelihood of children not being able to attend school, and have prevented people from partaking in a host of normal daily activities—mind you I said restrictions, not COVID-19.
In doing so, such restrictions have also consequently and predictably caused anxiety, depression, job loss, an increase in suicidal thoughts by many of Idaho’s youth, and an increase in substance abuse, to name only a few.
Simply put, there are much broader considerations that must be balanced and considered when deciding whether or not to continue to perpetuate an environment of endless restrictions and in attempting to decide whether to disallow residents the ability to resume some measure of normalcy in their lives as they see fit.
- CDH’s authority to issue any of the above orders is questionable.
Idaho Code 39-414 gives the Board of Health in each district the power 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.
I believe it’s 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. In that vein, sadly, noticeably absent from any of the orders is any acknowledgement whatsoever that people have certain unalienable rights, even during times of emergency.
Does the CDH really believe the intent of the legislature in 1970, in creating health districts, was to empower them as effectively the supreme and unquestioned lawmakers in the land during times of pandemic?
Perhaps it is the case that lawmakers did not anticipate the full repercussions of their inserting such broad language into this portion of code, by inserting statutory language that was likely meant 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? I think this is much more likely, frankly, and in any effect, it appears to be a portion of code the Idaho Legislature will likely soon clarify in upcoming legislative sessions.
I do have little doubt this board believes it is doing what is in the best interest of the people of Idaho, but perhaps it should also ask itself, in the process of deciding these issues, whether it is actually following the spirit of the law in addition to their apparent understanding of the letter of the law.
For the above reasons, I would ask this board not to upgrade its November 17, 2020 advisory opinion to that of an order. If, however, if feels inclined to do so, as appears to be the case, I hope it modifies its draft order in the above respects so that Idahoans are able to follow orders that are fully comprehensible, consistent, and which uphold their civil liberties.