Michigan lawmaker: Can county boards fire health officials over mask orders?

Craig Mauger
The Detroit News

Lansing — A Michigan lawmaker formally asked Attorney General Dana Nessel last month to weigh in on whether county commissioners can fire their local health officers over orders requiring students to wear masks.

Rep. Jim Lilly, R-Park Township, submitted his request for a legal opinion from Nessel's office on Sept. 14. It was first revealed Monday by FOIA Services Michigan, which tracks public records in the state. Nessel's office declined to answer Lilly's questions on Thursday, suggesting the topic might "become the subject of litigation."

State Rep. Jim Lilly.

The document points to the lengths opponents of K-12 mask mandates are willing to go to oppose the county-level orders. Republicans in Lansing have repeatedly contended that the decisions should be left up to families.

Their arguments come amid increasing COVID-19 infection rates among young people — those under the age of 12 currently can't be vaccinated against the virus — and recommendations from state and federal health officials that there should be universal masking in schools.

Lilly, who's chairman of the House Rules and Competitiveness Committee, also asked Nessel whether county boards of commissioners can reverse public health orders issued by county health officers and whether they can cut funding to a county health department in response to a public health order.

In a Tuesday statement, Lilly said county commissioners in his district had reached out to him requesting "clarity on public health orders issued by county health officers and their possible recourse."

"I felt there was value in this clarification, so I requested an official attorney general opinion," Lilly said.

Multiple counties across the state, including the two largest, Wayne and Oakland, have imposed mask requirements for K-12 students. Before the new state budget took effect on Friday, state officials said about 65% of Michigan's students were covered by mask mandates imposed by either local school districts or counties.

However, at least four health agencies, covering six counties, dropped their requirements in recent weeks because of provisions inserted by GOP lawmakers in the state budget that attempted to block the county-level requirements.

Democratic Gov. Gretchen Whitmer said the language was unconstitutional and wouldn't be enforced. But that wasn't enough for some county officials, who were concerned about losing funding for key health programs.

On Sept. 14, when Lilly asked for Nessel's formal opinion on his questions, he said answers would "bring some clarity to this complicated situation."

"As you may be aware many county health officers have imposed mask mandates of varying scope," Lilly wrote to Nessel on Sept. 14. "This has been controversial, and many people have called on county boards of commissioners to intervene and either countermand the order or fire the health officer."

On Thursday, the office of the Democratic attorney general said it wouldn't be appropriate to analyze Lilly's questions.

"Although we would like to be helpful in answering questions about local issues, our core responsibilities to represent the state and all its departments, officers and employees prevent us from addressing all but a few, select local issues," wrote John VanDeventer, Nessel's chief legal counsel.

"After discussing the legal complexities and implications of your questions, we have determined that issuing an opinion of the attorney general is not appropriate at this time," he added.

VanDeventer also said it's the longstanding policy of the office to decline to issue formal opinions when issues might become the subject of litigation. The practice conserves resources because the courts can render an authoritative opinion, he said.

Last week, Dr. Michael Collins, the longtime medical director for the Grand Traverse County Health Department, said he was set to lose his job after he criticized local officials for a policy that banned mandatory COVID-19 vaccinations for county employees.

Lilly represents portions of west Michigan's Ottawa County, where the Ottawa County Department of Public Health has instituted a mask requirement for students in pre-kindergarten through sixth-grade educational settings.

“Vaccinations prevent most COVID-19 infections,” Lisa Stefanovsky, administrative health officer at the Ottawa County Department of Public Health, said in August. “However, many of our students are too young to be vaccinated so our Order seeks to protect them and slow the transmission of the coronavirus in our schools and community.”

Ottawa County officials have publicly shared a legal opinion from former Attorney General Mike Cox, a Republican, that said the board of commissioners didn't have the authority to rescind the mask order or "to terminate the public health officer simply because she issued an order."