A press release issued Tuesday by Lebanon County District Attorney Pier Hess Graf painted a dramatic scene around “yet another mandate” by Pennsylvania Governor Tom Wolf.
A spokeswoman for Wolf countered, noting that district attorneys have not been asked to enforce the mandate and calling Hess Graf’s letter a plot for political gain.
Hess Graf’s letter is similar to one she had circulated May 2020 in the wake of Lebanon County’s self-declared move to “yellow” status, assuring business owners that her office would not prosecute them for reopening in advance of the timeline detailed in Gov. Wolf’s executive orders.
“Over the weekend, my Office received countless inquires from parents,” said DA Hess Graf in the most recent press release (PDF). “They remain frustrated, confused, and scared of a possible criminal consequence if they refuse compliance with our Governor and his list of ever-changing rules.
“Our citizens need and deserve answers.”
The DA’s press release at once suggests a threat exists to parents who let their child disobey the order and provides a safe harbor from it: “The Office of the District Attorney will not authorize an arrest, criminal citation, or criminal consequence for a parent’s simple refusal to mask his or her child at school.”
LebTown sought to further understand under what circumstances this scenario might occur.
First, we reviewed the mandate. Signed a week prior to Hess Graf’s press release, it was issued by Acting Health Secretary Allison Bream under a 1950s-era law that has been used throughout the pandemic to shield actions from legislative and public scrutiny. The order (PDF) defines a “General Masking Requirement,” which stipulates:
Each teacher, child/student, staff, or visitor working, attending, or visiting a School Entity shall wear a face covering indoors, regardless of vaccination status, except as set forth in Section 3.
That’s the sole section of the order pertaining to public individuals, as opposed to school entities or school officials. How this would be enforced remains unclear.
Office of the Governor press secretary Lyndsay Kensinger said in email, “The Department of Health has not asked for the DA to play any role in enforcement of the Secretary of Health’s masking order in schools.”
“Any comments made by the DA are purely for political gain and should not be conflated with potential consequences for school entities that fail to comply with the order.”
Kensinger provided additional detail on the administration’s outlook regarding enforcement, but still left open the question about parents/children.
“School officials who fail to adhere to the order could lose the protection of sovereign immunity and may personally face lawsuits from those who may be affected by any official’s attempt to ignore the order. Failing to implement or follow the control measures may expose individuals to personal liability under 42 Pa.C.S § 8550 (relating to willful misconduct), as well as other remedies as provided by law. Failure to implement and follow the control measures under the Order also subjects a person to the penalty provisions of the Disease Prevention and Control Law of 1955.”
LebTown asked Kensinger for context on what a parent/child prosecution might look like in practice or how this possibility plays a role in the administration/DoH’s overall enforcement plan. No additional response had been received as of press time.
As of publication time, Hess Graf had not responded to an email sent Wednesday morning with questions about the open letter.
Although the Governor’s office is apparently maintaining legal optionality for prosecuting parents/children in the future, at present it is not clear what chain of events could lead to this scenario.
Responding to inquiries from LebTown, the departments of Health and Education both referred LebTown back to an FAQ document, which does not address what risk exists to non-compliant parents or children.
Regarding enforcement, the FAQ describes a process for individuals to escalate concerns about masking first to principals and then onto superintendents or boards. Unlike during last year’s business shutdowns, the state is not operating a public tip line for reports of non-compliant schools or parents, and the FAQ does not detail what actions would be taken against a board which chooses to disobey the masking order.
What is the complaint process?
Parents can submit complaints about non-compliance with the masking order to their child’s school principal or building administrator. If a building or districtwide issue, parents should contact the central district’s office administration/Superintendent prior to submitting to the school board.
School districts and board members now face an increasingly difficult situation. LebTown will not delve into the argument over masking itself again right now, but with heated board meetings now turning into in-person protests and the mask mandate emerging as the next major front in the GOP’s ongoing COVID conflict with the Wolf administration, board members will find themselves pressured to take stands one way or the other.
And then what? Still unclear. Perhaps the most apt antecedent is what happened following the Lebanon County Commissioners vote to move to the “yellow” phase in advance of Wolf’s timeline. Wolf responded by withholding CARES Act funding as a punitive measure, leading to a lawsuit by the county that culminated in a settlement directing $2.8 million to a program advertising universal masking in Lebanon County. Whether the Wolf administration would respond to a defiant school board with a similar budgetary counterstrike is still an open question.
School boards elsewhere in the state are going through similar turbulence right now, with Pennridge exploring options to join litigation and Central Bucks deciding not to require doctor’s notes for medical exemptions. (Not that doctor’s notes are particularly hard to find right now, with one eastern Lebanon County doctor even making a generic form available on his website.) This time at least, it seems unlikely that a Lebanon County school district will be the guinea pig.
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