‘We are in a constitutional crisis’

By James Hanlon
Leader Staff Writer
The Oxford School Board heard more comments opposing masks Oct. 12, echoing last month’s meeting when nearly 30 members of the public spoke out until midnight.

This time some folks brought up the state budget signed into law Sept. 29 which includes language prohibiting health departments from issuing or enforcing any order that would require an individual under the age of 18 to wear a mask or face covering.

Although some local health departments dropped their mask mandates in response, Oakland County Health Division has not. That puts the school board in the impossible situation of interpreting which rule to follow. They want Attorney General Dana Nessel to weigh in.

“I speak before you today uncertain as to whether I, or my fellow board members, can fulfill our oaths of office at this point,” said School Board President Tom Donnelly during board comments after public comment. “We face a temporary mandate that says one thing and a signed law that says another thing. If we find ourselves compliant with the mandate, then we’re not following the law. If we comply with the law, we’re not following the mandate. Each and every one of us [board members] said that we would abide by the Constitution of the United States and the Constitution of the State of Michigan.”

Donnelly explained that a school district is a “compliance entity” that must follow orders from higher up. “We get told how we have to use our funds, we get told what testing we have to use, everything is regulated. When Covid started, we did everything we could do to comply with all the rules, whether we agreed with them or not. This is not about pro-mask or anti-mask, it is about trying to follow the law – or this mandate.”

When Gov. Gretchen Whitmer signed the budget bill, she stated that the provisions prohibiting mask mandates are unconstitutional and therefore unenforceable. “The legislature cannot unwind the Public Health Code in a budget bill or un-appropriate funds because they take issue with the actions of local health departments,” she wrote in a cover letter attached to the signed bill. “Budget boilerplate that purports to prohibit state or local health officials from issuing mask and quarantine orders or to penalize local health departments for using their powers under the Public Health Code violates the Michigan Constitution. I will not allow unconstitutional budget language to take effect.”

Nevertheless, Whitmer still signed the bill and the board wants clarification. “This is not a conflict we created,” Donnelly said. “This is not a conflict that we imposed upon ourselves. I’m looking for a way for the creators of the conflict to find a resolution, forcing them. If necessary let the judicial branch decide the constitutionality between the two requirements.”

Donnelly proposed asking Oxford’s state representatives to ask Michigan’s attorney general for a formal legal opinion on the matter. He said the attorney general is required to give an opinion when it is asked for by those individuals. The board approved the resolution 7-0.

Aides from the offices of Rep. John Reilly (R-Oakland Township) and Sen. Rosemary Bayer (D-Beverly Hills) said last week they had received the request and passed it along to the Attorney General’s office. The Attorney General’s office confirmed on Thursday that it had received the request and is “currently evaluating.”

Donnelly further proposed drafting another resolution “demanding that the Oakland County health department and the governor’s office seek from our judicial branch a constitutional resolution to this matter.” The board was expected to vote on this resolution at a special board meeting Oct. 19, after The Leader’s press deadline.

Several members of the public called on the board to take a vote against the mandate the night of Oct. 12. “I know that you want a vote,” Donnelly told the audience in the high school auditorium. “I think I’ve explained why we hesitate to make a vote. I’m asking you to give us a week, to put these potential things into play.”

Donnelly reiterated the risks of losing governmental immunity. If the district defies the mandate, they could be separated from insurance policies that would pay for the very attorneys that would protect them if they got sued for violating the mandate. “I think sometimes you think that we fear being fined $1,000 or something,” he said. “We do not. We fear the district crumbling because we made a mistake, because we did it a different way.”

Board Member Dan D’Alessandro made a similar point. “I respect every single person that spoke tonight,” he said, “and I respect everybody’s opinion. But we also have a duty that we make sure this district is solvent. And if something happens and we get sued, who’s going to pay the bill? It’s going to be the taxpayers. And I’m sure there would be more than 75-100 people in this room if that happens.”

As a reminder, School Board Member Korey Bailey recited the oath he and his fellow board members took when they assumed office: “‘I accept and solemnly swear that I will support the Constitution of the United States and the constitution of this state, and that I will faithfully discharge the duties of the office of board member of the Board of Education for Oxford Community Schools, Oakland and Lapeer County, Michigan, according to the best of my abilities.’”

“We need to send that resolution to get an answer because we’re not,” Bailey added. “We as board members, we’re left with, do we sit up here as hypocrites and say that we are going to follow a mandate and break the law? I mean the only other alternative is resign.”