Friday the 13th is known as a day of bad luck – and it certainly proved to be for an ill-fated first attempt to force county citizens to mask up while indoors in public places.
A Friday, Aug. 13 letter from Guilford County Attorney Mark Payne to the Guilford County Board of Commissioners states, “I am writing to let you know of a problem with the adoption of the Board of Health rule adopted this week – and to let you know of [a] staff recommended plan of action to resolve it.”
The “Board of Health” rule was actually implemented by the Board of Commissioners since in Guilford County the two boards are one in the same.
After the mask mandate was announced last week, one county commissioner told the Rhino Times that there had been threats of legal action against the county’s plan. Though the legislation angered many in the county, Payne stated on Tuesday, Aug. 17 that no one had actually brought suit against the county.
“Guilford County has not had any legal challenges to this point,” Payne wrote in an email to the Rhino Times. “We have had a number of citizens asking questions and some of those citizens had concerns over [the] rule but no legal challenges.”
In Payne’s Friday morning email to the Guilford County commissioners and other county staff, Payne stated that the problem was that the county should have provided a 10-day notice for the adoption of the new rules.
The county attorney took responsibility for the error, apologized for it and explained the circumstances that led to the mistake.
Payne also wrote to the board: “I have tried to find a way to find some legal grounds to uphold the current rule but those arguments fail.”
He added, “Please understand that this does not void the rule. A rule or ordinance that is not properly noticed is voidable, not void. Any enforcement action taken prior to the enactment of a new rule is subject to challenge and therefore suspect, so we will only educate and not issue any sanctions until the new rule is in place.”
The Guilford County commissioners are meeting next week to discuss how to resolve the problem. County staff is proposing that the Board of Commissioners also take this opportunity to make improvements to the rule based on feedback from commissioners and the public.
“I do think there are a number of revisions that will improve the rule and promote the accomplishment of its goals,” Payne stated in his Friday email to the board.
Among other things, Payne suggests removing criminal sanctions from the ordinance.
“I feel we will reduce the push-back by making it plain we do not intend to make not wearing a mask a crime,” he wrote. “I think this is a concern that was artfully expressed by Commissioner [Justin] Conrad. I personally feel that civil sanctions are much more effective, as it is a sanction better fitting the situations. (In addition, I am confident that a Judge would be very reluctant to uphold a criminal charge anyway.)”
Payne also wrote that county officials could be more detailed with the public in explaining the scientific basis behind the need for the masking rule.
“A lot of the comments we have received was ‘what is the science,’” the county attorney wrote, “and, frankly there is a lot more out there than we included in the rule. I do not argue that it will change anyone’s stance but it may make them understand there was a reasoned basis for the board’s action.”
Payne’s email to the commissioners also states that the next mandate should explicitly say that both public and private schools and universities are included in the mandate.
“This was the source a great many inquiries,” Payne wrote.