ALLEGAN, Mich. (WOOD) — The Allegan County Health Department and the Barry-Eaton District Health Department have rescinded their school mask mandates, while Ottawa County, Kent County and Kalamazoo County will uphold their orders as language in the new state budget causes confusion over whether or not such mandates threaten local funding.
The Allegan County rescission will go into effect at 5 p.m. Thursday. The Barry-Eaton rescission will go into effect at 11:59 p.m. Thursday.
BUDGET LANGUAGE THREATENS FUNDING
“The Allegan County Health Department (ACHD) regretfully rescinds the public health order requiring the use of masks for individuals in kindergarten through grade 6 educational settings – or face a loss of over $1 million in our total budget,” ACHD said in a release.
The rescission comes after Gov. Gretchen Whitmer signed the state’s 2022 budget on Wednesday. Some language in the budget could mean health departments will lose funding if they have COVID-19 emergency orders in place on Oct. 1, 2021.
The language threatens funding for essential local public health services like immunizations, infectious disease control, public water supply and on-site sewage management, ACHD says.
“The decision to rescind the K-6 Mask Requirement was not made lightly and has challenged us ethically, professionally, and personally,” Allegan County Health Officer Angelique Joynes said in the release. “However, we cannot risk our essential local public health services funding, which is around $1 million of our total budget and provides the ability for us to continue to offer those services.”
The mask mandate would not threaten funding if the Allegan County Board of Commissioners passed a resolution to support the emergency orders, ACHD says. The health department asked the board to pass such a resolution, but the board chose not to do so.
“The Allegan County Board of Commissioners did not act on the county health officer’s request to support the department’s order requiring students in grades kindergarten through grade 6 to wear masks during the current Covid 19 contagion,” it said in a release.
The Kalamazoo County Board of Commissioners, however, did pass a resolution Thursday in support of the mask order, the Kalamazoo County Health & Community Services Department said in a Friday release.
Whitmer has said the language in the budget, or Senate Bill 82, is unconstitutional.
“The Public Health code gives health officials the tools they need to protect people from epidemic diseases like COVID-19,” Whitmer wrote in a letter to lawmakers. “The legislature cannot unwind the Public Health Code in the budget bill or un-appropriate funds because they take issue with the actions of local health departments.”
She said the budget boilerplate violates the Michigan Constitution.
“Consistent with my duty to uphold the constitution, I will not allow unconstitutional budget language to take effect,” she wrote.
In a Thursday release, Ottawa County said because the Legislature did not amend the Public Health Code, the language “has no effect on Ottawa County, its budget, its Public Health Department, or existing public health orders.”
“A representative of the Governor confirmed that the Governor’s Office reviewed this matter with the Attorney General’s Office, and the Attorney General’s Office concurred in the conclusion that the boilerplate was unconstitutional and unenforceable,” it said in the release.
Kent County also said it would have no effect on it and said whether it is constitutional or not needs to be resolved between Whitmer and the Legislature.
“Any disagreement on the constitutionality and/or enforceability of the boilerplate language should be resolved between the Governor and the Legislature,” a spokesperson for Kent County said in a statement.
Michael McDaniel, a professor of constitutional and homeland security at Western Michigan University Cooley Law School, says the language in the budget is a way for the Legislature to show its disapproval of certain public health orders.
He adds that changes could only be made if the public health code is amended.
“The Legislature understands they have to give money for actions to protect public health and safety, including COVID-19, but what they’re saying it is our intent, recommendation, we don’t want it to be spent this way,” McDaniel said. “It’s a way of communicating perhaps the Legislature is unhappy with certain actions taken either by local or state health departments. But it’s not enforceable as a matter of law, not enforceable, they can’t withhold funds based on this language.”
Allegan County put forth the rescission on the advice of legal counsel, the health department said.
The Barry-Eaton District Health Department will continue to evaluate the situation, it said.
“We will continue to evaluate the situation and will consider issuing orders in the future as the question of the constitutionality of Senate Bill 82 and House Bill 4400 becomes clearer and if community conditions necessitate such orders,” Health Officer Colette Scrimger said in a release.
Berrien County on Wednesday announced it was rescinding its mask order. Ionia County has also rescinded a quarantine emergency order.
SCHOOL DISTRICTS CAN STILL MANDATE
The Barry-Eaton District Health Department stressed that school districts can still mandate the use of masks.
“We urge our local school districts and other educational settings to continue to implement universal masking policies and follow quarantine best practices. It’s critical to reducing the spread of COVID-19 within schools and our communities,” Scrimger said.
The Centers for Disease Control and Prevention recommends masking for all students and staff at K-12 schools.
— News 8’s Ruben Juarez contributed to this report.