Douglas County commissioners are seeking to overturn the Tri-County Health Department’s recently-approved school mask rules by having their attorney raise objections about how the health agency approved the mandate.

Commissioners unanimously agreed on Aug. 23 to have their lawyer communicate with the health agency regarding the Aug. 17 meeting of Tri-County’s board where the vote on the COVID-safety order took place. 

County Attorney Lance Ingalls  sent a letter to Tri-County's attorney Aug. 25 detailing the commissioner's complaints and requesting that the mask mandate be voided.

Tri-County is the public health authority for Douglas, Adams and Arapahoe counties.

“The process will be initiating a complaint by communicating with Tri-County Board of Health our objection to their conduct of their meeting and then directing legal staff to be prepared to follow along with the process to invalidate the public health order issued last week,” county Commissioner George Teal said during a commissioner work session.

In the Aug. 17 meeting, Tri-County’s Board of Health approved a requirement that masks be worn inside school buildings by students ages 2 to 11 and any staff members that work with them. 

Douglas County’s commissioners then chose to opt out of that mandate Aug. 19, saying they don’t believe it is necessary and that it takes choice away from parents. 

Before commissioners voted on that, a county attorney said that according to the public health order, when a county opts out, it is then left to the school districts and individual schools to decide if they wish to follow the order.

Douglas County School District officials said Aug. 20 that because of the district’s own policies, the district would comply with the Tri-County order regardless of the county opting out. 

Executive session cited

In his letter, Ingalls alleged that the way in which Tri-County Health’s board enacted its school mask mandate was improper.

Tri-County’s meeting where the mask mandate was approved was divided between two sessions across two days. During the first meeting, on Aug. 16, the board heard about an hour and a half of comments from the public and then held an executive session, or closed-door meeting, lasting about two hours. 

In a continuation of the meeting the next day, the Board of Health deliberated for about a half hour and then voted on two versions of the mandate, the second of which was approved.

It’s the executive-session portion of the meeting to which the Douglas County commissioners objected.

Under Colorado open-meetings law, while executive sessions are permitted for specific reasons, such as when a board needs to receive advice from an attorney or discuss negotiation strategies, those closed-door sessions are supposed to be limited to only the announced topic, which must be stated before the meeting.

Teal, the commissioner who proposed that the county challenge Tri-County’s action, pointed to comments made by Board of Health members, including references to deliberations during that executive session, as proof that the board violated the open meetings law.  Several of these quotes were included in the letter sent to the health department.

The Board of Health had entered the executive session in order to hear advice from its attorney, according to a motion made before the closed-door meeting began. 

“We’ve spent the last hour and a half really deliberating, trying to take into consideration as much information as possible,” said Kaia Gallagher, the board of health’s president, after coming out of the executive session.

Gallagher then announced that the board was not yet ready to vote and would continue the meeting to the following day.

“We have talked about this extensively,” she said at the start of the second meeting. “Last opportunity for anyone to make a comment before we consider a motion.”

During that second meeting, Board of Health members discussed their reasoning for being in support or against the order for about 25 minutes before a motion was made. 

Teal said that the county commissioners have had to explain and justify their decision to opt out and that the Board of Health should “have the same obligation.”

“They conducted public policy deliberation in an executive session,” Teal said. “They had a secret meeting to formulate policy.”

Tri-County Health Department did not immediately respond to requests for comment.

In his letter, Ingalls requested that the health department provide a copy of the full executive session record and that any actions from that meeting "be voided," according to a copy of the letter obtained by Colorado Community Media through an open records request.

"There is no question that the BOH was determining its public policy with respect to any public health order and conducting public business in the executive session," according to the letter.

"There is also no question that the public was deprived of the discussions, the motivations, the policy arguments and other considerations which led to the discretion exercised by the BOH and which influenced the subsequent vote."

Difficult to prove

If a public body such as this strays from the intended purpose or topic of an executive session, it could be a violation of the state’s open meetings law, said Jeff Roberts, executive director of the Colorado Freedom of Information Coalition, an organization dedicated to promoting transparency in government.

“When they come out of the executive session, if they make comments that make it appear that they discussed topics that weren’t authorized under the open meetings law or that they didn’t announce prior to going into the executive session, that could be something that could be challenged,” Roberts said.

Often, these types of claims are difficult to prove one way or the other unless there is a recording of the executive session, Roberts said. Executive sessions are normally required to be recorded, but not when the purpose for the meeting is to receive legal advice, which is protected under attorney-client privilege.

A spokesperson for Tri-County said their executive sessions are not recorded.

Sending a complaint to Tri-County is not the same as filing a lawsuit, which is another step that could be taken to challenge a believed-violation of the open meetings law, Roberts said.

In that scenario, the county could present to a judge any evidence they have that the Board of Health acted improperly. Usually in such a case, the audio recording of an executive session is the most concrete evidence for a judge to review, Roberts said.

The county letter to the health department did not mention a potential lawsuit.

While it’s theoretically possible for a judge with enough evidence to overturn a decision made by a public body because of an open meetings violation, the board could simply come back together and re-do the vote afterwards, Roberts said.

‘A good step’

After Teal laid out his reasoning for wanting to challenge the Tri-County order, county commissioners entered into their own executive session to discuss the matter with their legal counsel. Afterwards, the other two commissioners voiced support for the complaint.

“We take accountability, transparency and open meetings very seriously,” Commissioner Abe Laydon said. “If it's the admission in our understanding that one of the members of the Board of Health admitted to deliberating during an executive session intended for legal advice, then that is a problem and we need to identify that.”

Commissioner Lora Thomas said she has been concerned about the actions of the Tri-County board for the past 15 months. 

“I’m not clear they understand what their board function is and the rules and the parameters for how they operate,” Thomas said. “And so they do represent Douglas County residents and I do think this is a good step to have legal staff reach out to them so they know people are watching them.”