Page 10 — Thursday, October 28, 2021 — The Hastings Banner
Law precludes board action against
mandates, commissioners decide
Rebecca Pierce
Editor
In an unprecedented departure from past
practice, Barry County commissioners on
Tuesday disclosed attorneys’ opinions they
had considered in closed session about pro-
posed action to oppose mask mandates by
their health officer.
Those opinions advised that a county
board does not have the “statutory authority
to overrule or rescind a mask mandate or any
other emergency orders issued by a Health
Officer.”
On Oct. 5, in a 5-1 vote, the commission-
ers had tentatively agreed on a proposal to
withhold the county’s half of the Barry-
Eaton District Health Department’s budget if
any mask mandate should be enacted in
future.
Commissioner Jon Smelker had proposed
that idea, based on the state GOP strategy for
the state’s 2021-22 budget which had pre-
vented local health departments from issuing
or enforcing mask mandates for those under
the age of 18.
According to the terms of the state’s bud-
get bill, any health department with a mask
mandate in place Oct. 1 would have lost
state funding – unless the order was support-
ed by its respective county board of commis-
sioners.
BEDHD rescinded its mandates at 11:
p.m. Sept. 30 to protect against a possible
loss of state funding.
The success of that state Republican Party
strategy spurred five commissioners to rec-
ommend Smelker’s proposal during a com-
mittee of the whole meeting the following
week; Commissioner Dave Jackson was
absent and Commissioner Catherine Getty
cast a “no” vote.
But, during the formal board meeting the
week after, commissioners were silent on the
proposal and no action was taken. The issue
was not specifically addressed again by the
board until Tuesday, when commissioners
handed out the legal opinions they had con-sidered during an Oct. 12 executive session
with David Stoker, a Lansing attorney who
specializes in municipal law.
They also considered the analysis from
the law firm of Mike Cox.
Cox had offered similar advice to Ottawa
County commissioners, who were asking the
same questions about their health officer’s
actions.
After each commissioner read a key pas-
sage from Stoker’s letter aloud, Geiger asked
the board how it wanted to proceed. There
was silence.
Finally, Smelker said he wanted to make a
resolution opposing a universal mask man-
date.
His problem, he said, is not with mask
wearing; it’s the fact that these mandates
don’t allow for individual choice. His motion
was supported by Commissioner Vivian
Conner.
On Oct. 19, Jackson County had approved
a resolution opposing mandatory masking –
as well as a variety of other mandates for
vaccinations, passports, COVID testing –
and in support of a citizen’s right for self-de-
termination and parental rights to decide
what is best for their children.
This was suggested as a possible template.
So the board took a short break to make and
share copies of the document with everyone
in the room so it could be reviewed for pos-
sible adoption in Barry County.
When the commissioners reconvened,
they discussed it, but there were concerns
with it, particularly with regard to the impact
of the language on private business and
industry, which had not been taken into
account in the Jackson County resolution.
Smelker said he believes that private busi-
ness should be exempt from any such action
by local government.
The commissioners struggled to find an
answer.At one point, Geiger was heckled and
booed by some people in the audience when
he referred to mandating vaccinations for
children before they go to school.
He apologized and thanked them for set-
ting him straight.
Commissioner Dave Jackson, who – like
Geiger and Smelker, represent Barry County
on the health board – finally said, “So the
thing that bothers me about the entire mask-
ing debate, and I’ve had this discussion with
(Health Officer) Colette (Scrimger) as well,
that I never agree with a one-size-fits-all.
“For every district and every building, I
think there was a much better way to address
it. When you look at the schools and go,
‘OK, let’s fight fires where there’s a fire.
Let’s not just spray water on everything, you
know?
“So we took the wrong approach, in my
opinion, in this whole debate on how we
went forward with it. The other thing is
we’re singling out schools and saying, ‘OK,
we have kids in schools for six hours a day.
They’re home with their parents. Their par-
ents are going to work. If you’ve seen
Michigan Stadium or any stadium around
the country, there’s hundreds of thousands of
people that are unmasked in every segment
of society everywhere all the time.“The only place that we have targeted our
kids is in school.”
“So when they go home, there’s no mask,”
Jackson continued. “When they’re with their
siblings, there’s no mask. When they go with
their parents out, whatever they do all week-
end long, and all evening, there’s no mask.
So the transmission may be particularly in
schools. But I think, far away, it’s outside of
schools, and it’s being brought in through
there.”
Jackson noted the unlimited amount of
email from people on both sides – not just
from people who are against masking, but
people who are for protecting our kids.
“And that is the debate: What is the best
way to protect our kids?”
The dilemma that the commissioners face
is that the law allows them no authority in
this case. A resolution by the board would be
“toothless,” he said.
So what purpose would any resolution
serve, he asked. Would they be taking an
action in an attempt to make parents happy?
After their deliberations, Conner said she
wanted to remove her support for Smelker’s
motion, which then died for lack of support.
After the meeting, Smelker told the
Banner he was not disappointed, nor sur-
prised, that his proposed resolution didn’t
make it to a vote. “I didn’t think it would
pass when I made it,” he said. “But I made
my position known.”
The meeting became unruly, as Geiger
noted, during final public comment when a
woman in the audience who identified her-
self as “Cindy Twichell, a U.S. citizen,”
stood at the podium and said she opposed the
board’s policy of limiting public comment
by individuals to three minutes.
When her three minutes was up, Geiger
asked her to conclude her remarks, but she
refused.
He asked for assistance and sheriff’s
posse member Ginger Helmus approached
the podium.
Then Geiger wielded the gavel and abrupt-
ly concluded the session.
“The meeting’s over,” he announced and
walked out of the chambers.
In other action, commissioners approved
the county budget plan for 2022, with Conner
casting the lone “no” vote.
Conner told The Banner during a break
that she had promised she would not approve
an increase in any general fund appropria-
tions until the county had resolved the situa-
tion with the jail.A woman who identified herself as
Cindy Twichell, U.S. citizen, challenges
the board’s 3-minute rule for individual
citizens making public comment during
their meetings. (Photo by Rebecca Pierce)
Commissioner Bruce Campbell listens
to his fellow commissioners debate the
issue. (Photo by Rebecca Pierce)After board Chairman Ben Geiger says the meeting is getting unruly and asks for
help to control it, posse member Ginger Helmus steps forward to assist. (Photo by
Rebecca Pierce)Commissioner Jon Smelker files attor-
ney opinions that the board considered
as part of its deliberations. (Photo by
Rebecca Pierce)Commissioner Dave Jackson argues
against adopting a “toothless” resolution.
(Photo by Rebecca Pierce)
Chairman Ben Geiger listens to citizen
comment. (Photo by Rebecca Pierce)