On October 4, nearly 160 East Longmeadow voters filed a petition with their Town Council demanding an end to the defunct Health Board’s mask mandate. The petition is based on the “Citizen Relief Mechanisms” contained in Article 8, Section 8-2 of the East Longmeadow Home Rule Charter. According to the Charter, the Councilors must call a public meeting and vote on any petition presented to them by at least 100 members of the town’s electorate. The Councilors can and should end the mandate for several reasons.
The Health Board Likely Violated Open Meeting Laws by Failing to Give Notice of Its Mask Mandate Vote
According to Massachusetts’ Open Meeting Law (G.L. 30A, § 20(b)), public bodies such as the Health Board must post notice of every meeting at least 48 hours in advance. The notice must include ”a listing of topics that the chair reasonably anticipates will be discussed at the meeting.”
The Attorney General’s Open Meeting Law Guide states that
Although a public body may consider a topic that was not listed in the meeting notice if it was not anticipated, the Attorney General strongly encourages public bodies to postpone discussion and action on topics that are controversial or may be of particular interest to the public if the topic was not listed in the meeting notice.
On August 26 the Health Board voted to impose a local mask mandate on the town. It is very likely that the Board members anticipated discussing the measure prior to the meeting. The measure is unquestionably “of particular interest to the public” and even “controversial.” Nevertheless, the notice posted prior to the meeting contained no mention of the topic.
A formal complaint has been filed with the Town and the Attorney General’s Office.
The Board’s actions are a violation of the state’s open meeting laws and should be immediately redressed. However, the Board is vacant and it is unclear when new members will be appointed. Therefore, the Council should resolve the matter.
(It should also be noted that the Health Board failed to comply with M.G.L. c. 111, § 31, which is the statute the Board cites as its authority for imposing the mask mandate. That law clearly states that Massachusetts health boards must submit copies of “all rules, regulations and standards which have been adopted” with the Department of Environmental Protection. To date, the department has not received a copy of the order.)
The Town Council Has Legal Authority to End the Mandate
The Council’s authority is extremely board. Article 1, Section 1-3 of the Town’s Home Rule Charter states that “All legislative powers of the Town shall be exercised by the Town Council.” There is no definition of “legislative powers” in the Charter, but Black’s Law Dictionary defines the phrase as follows:
Legislative power – The power to make laws and to alter them at discretion; a legislative body’s exclusive authority to make, amend, and repeal laws.
Such authority unquestionably gives the Councilors the power to alter, amend, or repeal the current mask order—especially in the absence of a Health Board.
Article 2, Section 2-5 expands the Councilors’ authority even more by giving them all “general” and “corporate” powers. This essentially means that the Council can act on behalf of the Town however it chooses so long as it does not violate the law or act in contradiction to other provisions in the Charter.
The Mask Mandate Hurts East Longmeadow’s Small Business Owners
The mask mandate negatively affects local businesses. Many small business owners have lost clientele and income due to the mandate. Business owners are tired of imposing masks on their customers and employees. They also resent the ever-present threat of being fined by the Town’s Health Inspector. A number of East Longmeadow business owners intend to state their grievances to the Councilors either through written statements or in person at the public hearing.
For more on this topic, please read my post East Longmeadow Mask Mandate and Its Negative Impact on Local Business.
Mask Mandates Don’t Work
The Health Board justified its mask order by stating “we know that masks slow or prevent transmission of all COVID-19 variants so far.” (See the third paragraph of the order.) The statement is not supported by any sort of data or evidence.
In fact, there is no evidence that mask mandates slow the spread of COVID-19. Dr. Damian Guerra, a bio-statistician, has written a letter to the Councilors summarizing his nationally publicized study in the International Research Journal of Public Health. As stated in Dr. Guerra’s letter, his extensive study “found no association between either reported mask use or US state mandatory mask policies and COVID-19 case growth.”
Here are just a few key points from Dr. Guerra’s study:
Randomized control trials have not clearly demonstrated mask efficacy against respiratory viruses, and observational studies conflict on whether mask use predicts lower infection rates.
Case growth was not significantly different between mandate and non-mandate states at low or high transmission rates, and surges were equivocal.
Mask mandates and use are not associated with slower state-level COVID-19 spread during COVID-19 growth surges.
These finds are completely contrary to the Health Board’s stated justification for imposing masks on East Longmeadow residents.
To read Dr. Guerra’s letter in its entirety, click the link below:
Conclusion
The Council should hold a public meeting on the petition in the coming weeks—hopefully in late October or early November. If you’d like to participate by speaking at the meeting or even submitting a written statement to the Councilors, please let me know. If you’d like to assist with the “Unmask East Longmeadow Campaign” feel free to send me an email at justin@jrmccarthy.com.
Law Office of Justin R. McCarthy 