By James Hanlon
Leader Staff Writer
Oakland County Health Division and the governor’s office both responded to Oxford School Board’s request to reconcile a conflict over the OCHD’s school mask mandate, but their responses were unsatisfactory to Board President Tom Donnelly.
“We are awaiting something declarative (legal/constitutional) on this issue,” Donnelly wrote in a letter addressed to OCHD. “Thus, in the absence of an AG opinion or court ruling, we are still in conflict as a school board.”
A vote on whether to disregard the mask mandate had been expected at last night’s board meeting, after The Leader’s publication deadline. However, in the school district’s weekly COVID-19 update Nov. 5, Supt. Tim Throne said he we would recommend the board against the vote, in light of correspondence he received from several state representatives.

“Oxford Community Schools is committed to law and order and to serving our community,” he wrote. “In the absence of an Attorney General opinion, but with the legal opinions available to us, it is my recommendation that Oxford Community Schools Board of Education not take a vote to suspend the mask mandate.”
The conflict is over the state budget bill, SB 82 (Public Act 87), Gov. Gretchen Whitmer signed on Sept. 29. The bill contains language prohibiting local health departments from requiring individuals under 18 to wear a mask. This seems to contradict, or limit, the Michigan Public Health Code, which authorizes health departments to make emergency health orders in response to an epidemic.
Oxford School Board passed two resolutions, Oct. 12 and Oct. 19, requesting a legal opinion (via Oxford’s state representatives) from the Michigan Attorney General, and a reconciliation to the conflict from the OCHD and the governor’s office.
“If the reconciliation of the conflict is unobtainable, please rescind the order,” the Oct. 19 resolution stated. “Therefore, if there is no resolution by October 29, 2021, our board will put forth a motion to allow Oxford Community Schools to transition back to the planned processes and procedures developed prior to the mask mandate being implemented. The Oxford Community School District will strongly recommend the wearing of masks, but will allow each family to determine what is right for them. If the motion is passed, this change will be effective the day after the board’s affirmative vote.”
The district received responses prior to the Oct. 29 deadline set by the resolution, but those fell short of what the board was looking for, according to Donnelly.
On Oct. 27, State Sen. Rosemary Bayer forwarded to Supt. Throne a letter from Whitmer, explaining why the budget language is unenforceable. However, this was the same publically available cover letter Whitmer wrote Sept. 29, attached to the bill and addressed to the state legislature.
It states in part, “The Public Health Code gives health officials the tools they need to protect people from epidemic diseases like COVID-19. 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. 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. Consistent with my duty to uphold the constitution, I will not allow unconstitutional budget language to take effect.”
Leigh-Ann Stafford, director of Oakland County Health and Human Services, wrote in an Oct. 28 letter to Throne, “…the County does not believe that a conflict exists. It is our opinion that the sections of SB82 that reference local public health departments are not constitutional.”
In reply to Stafford, Donnelly wrote: “We are aware of Oakland County Health Division’s opinion on this matter and similarly heard this opinion stated by our governor as she signed the bill into law. However, we are seeking the opinion of a higher legal authority and have worked through our state representative to request the Attorney General provide guidance regarding this legal conflict. Our board and our community are concerned that we are being made to choose between two authorities: a local health department and the State of Michigan. It is surprising to us that a local decision would not automatically be subservient to an executive bill signed into state law.
“We know we are meant to follow laws: you obey a law unless it is changed or a third branch of government, in this case, determines it is unenforceable. Every lawyer we have engaged agrees that SB82 is, in fact, a law. And that law directly addresses and conflicts with your county mask mandate. We noted that upon the passage of the law, multiple health departments across the state promptly dropped their mask mandates, just as we would have expected. It is the opinion of many of our constituents, that quite possibly, the OCHD is breaking the law by upholding the mandate. Hence, our adherence to the OCHD mandate causes us to break the law.
“Your message was received, and we are grateful for open communication with OCHD at this time. That being said, neither you nor the governor sharing your “opinion” that law is unconstitutional, removes the conflict we are seeking to resolve.”
On Nov. 4, the attorney general’s chief legal counsel, John VanDeventer, sent a letter to Rep. John Reilly, explaining the office’s decision to decline the request for an opinion. “This office generally does not issue opinions on matters that could be impacted by pending legislation that may never become law. Further, it is a longstanding policy of this office to decline to provide an opinion with respect to issues that may become the subject of litigation in which a court can render an authoritative opinion. These policies protect the Department from utilizing resources to prepare an Attorney General opinion that could be moot or otherwise unnecessary.”
When asked about the status of an opinion from the attorney general’s office during a virtual community conversation Oct. 29, Sen. Rosemary Bayer said the AG cannot issue a formal opinion for two separate reasons: Mask mandates are the subject of both ongoing litigation and legislation.
Specifically, a judge has requested a legal briefing on the subject from the attorney general. “As part of that legal case, they added the request to review SB 82,” Bayer said. “Once there’s a formal request from a judge on an open case, they’re not allowed to do an opinion outside of that. So, basically that case will get that opinion, and then that will become the attorney general’s position on this issue.”
Furthermore, the State Senate recently passed a series of bills that would limit mask mandates (SB 602 and SB 603). The bills have yet to pass the House.
Bayer emphasized that schools are at no risk of losing funding if they follow the mask mandate. “Schools can’t decide to close down and violate a mask mandate from the county while waiting for an AG opinion, which may take a year,” she said. “The notion that you could ask for something by Friday is absurd in the legal world. It just doesn’t happen that way. The case where there is this open request from a judge to issue a legal briefing/opinion started over a year ago. So, it just takes time for this stuff to happen.”