"It became clear that the expectation of Lora Thomas was that I vote on various issues the way she wanted me to. That is not how an appointment to the board of health by the commissioners works....I tried to explain that a couple of times to [Thomas], to no avail.”

Paulette Joswick, a registered nurse who has represented Douglas County on the Tri-County Health board for close to 25 years.

The morning of July 8, Lora Thomas cleared her schedule to listen to the virtual meeting of the Tri-County Health Department’s board of health. The topic had become a point of controversy despite its purpose in slowing the spread of COVID-19: whether to mandate face coverings in Adams, Arapahoe and Douglas counties — the three jurisdictions that make up the 72-year-old health agency.

The evening before, Thomas, the District III commissioner in Douglas County, emailed the county’s three representatives to the nine-member board of health. She argued that elected officials should be responsible for instituting mask mandates, not "unelected bureaucrats" — the term she said constituents use derisively about the board.

"It became clear that the expectation of Lora Thomas was that I vote on various issues the way she wanted me to," said Paulette Joswick, a registered nurse who has represented Douglas County on the board for close to 25 years. "That is not how an appointment to the board of health by the commissioners works....I tried to explain that a couple of times to [Thomas], to no avail."

The vote was 5-4 in favor of a mask order, with a generous ability for localities to opt out. Within a day, the Douglas County commissioners agreed on two things: they would absolutely avail themselves of the opt out. And further, they knew that Tri-County no longer represented their jurisdiction’s interests.

Since the announcement that Douglas County intends to withdraw from Tri-County and work to set up its own health department, Thomas received a deluge of critical comments. One week later, she was still livid that Joswick voted in favor of the mask order. Thomas heavily implied that she was to blame for the toxic atmosphere in the wake of the vote.

“If she had voted the way we asked her, our community would not be suffering the way they are right now,” Thomas said on Wednesday.

By midday on the Friday after the announcement, Douglas County had received over 400 calls and emails, mostly about the mask order and the decision to exit. While all three commissioners opposed the mandate, each voiced slightly different motivations for severing ties. In speaking with more than a dozen people familiar with Tri-County, three themes emerged for why the board’s July 8 vote was, in a phrase several individuals used, “the last straw.”

First, some Douglas County commissioners view the role of their board appointees slightly differently from how the other two jurisdictions think of their own members. Second, the COVID-19 pandemic reinforced the differences between Douglas County and its more populous, more liberal counterparts.

Finally, and more ominously, there was a fear of what could happen if the Douglas County commissioners were on the losing end of future votes; a worry that the largest local health agency in Colorado, whose mission is to “promote, protect and improve the lifelong health of individuals,” might actually harm the 370,000 people in one of the wealthiest jurisdictions in the state.

Delegate or representative?

In 2008, the General Assembly passed the Colorado Public Health Reauthorization Act, which directed counties to establish their own health agencies or become part of a combined district. State law lists more than a dozen powers of local departments, including implementing quarantines, closing schools or public places, and enforcing air and water quality regulations.

While the law details the qualifications and duties of the appointed board members who oversee local health departments, it is silent about the nature of their appointment.

“They make their own decisions,” said Commissioner Kathleen Conti of Arapahoe County. “I haven’t talked to any of the board of health members independently since last December.”

That point of view aligns with the understandings of two board members who spoke to Colorado Politics about their roles.

“We certainly have made it clear to [the county commissioners] that they should reach out to us if there’s a question,” said Kaia Gallagher, an Arapahoe County appointee since 2005. “But I don’t believe in any way that they are dictating to me how I should vote.”

Marsha Jaroch, a nurse practitioner who has spent six years as a board member from Douglas County, said that after Tri-County’s executive director testified in favor of a 2019 bill about sex education, concern arose about the department endorsing views contrary to those of the localities it represents.

“There was some misunderstanding by the commissioners, probably in each county, that we were looked at as a department of theirs in the county,” said Jaroch. “There was an attorney that came in and looked at it and said, no, no. By statute, the health department as well as the board of health are independent actors. They’re not, in a sense, beholden to the county commissioners.”

By contrast, Thomas, the Douglas County commissioner, endorsed the idea that the jurisdiction’s board members are in fact delegates of their appointing officials. At a commissioners’ meeting on July 14, she went so far as to mention the importance of a health department that is “in lock step with us.”

The impression that board members were acting independently of their commissions intensified during the mask vote, as the board of health's president cut off multiple elected officials from making comment, while ordering anonymous attendees ejected for shouting "tyranny" and "bunch of commies" during the meeting.

Jack Hillbert, who was elected as the District I commissioner in 2006 and served until 2014, echoed the "lock step" sentiment.

“I read that a board member for Douglas County chose to vote against the commissioners,” he said. “That’s the first time I’ve ever heard of that.”

If a board appointee had voted in a way that differed from his views, he explained, “we would’ve had a conversation about the appointment.”

Getting too big

When Douglas County joined the health department in 1966 following the department’s response to flooding and water-borne disease, the county had fewer than 8,400 residents. Now, as the approximately seventh-most populous county in the state, it is demonstrably more conservative and less racially diverse than Arapahoe and Adams.

Moreover, COVID-19 has drawn a clear line between the jurisdictions, with a case rate in Douglas County that is less than half that of its counterparts, according to the state's health department.

At the July 8 board of health meeting, John M. Douglas, Jr., Tri-County’s executive director, recommended against a mandate for Douglas County given its COVID-19 caseload. He explained that his staff monitored mask usage from parking lots and found that Douglas County consistently had approximately 75% compliance with face coverings. (Commenters at a subsequent Douglas County commissioners meeting would deem that figure unrealistically high.) Adams County had decreased to about 60% and Arapahoe County had fluctuated, with 80% usage lately.

“I believe that is your choice as an individual to make that choice however you see fit,” said Roger Partridge, the District II commissioner, at the commissioners' July 14 meeting. He added that while it is important to look at the scientific evidence of preventive COVID-19 measures, “We do not have that with masks. We’ve heard it with both sides.”

An increasing number of studies has shown that face coverings decrease the risk of coronavirus transmission.

What stung all three Douglas County commissioners was the board of health’s decision to approve a different recommendation from the one the executive director made to them. Douglas originally suggested a mandate for Adams County and Aurora, with Douglas County and its localities being able to opt in. Instead, the board passed a motion for a universal mandate with the ability of local governments to opt out after openly discussing their position.

To Partridge, the two policies were not the same, despite the likelihood of the same outcome. The board’s vote showed a “lack of respect for two medical doctors,” he said, referencing Douglas and a plastic surgeon representing Arapahoe County who voted against the mandate.

Douglas, who remarked prior to the board’s vote that “I do believe, honestly, that we would do better ... if we were following similar prevention efforts in all our counties,” said on Wednesday that commissioners’ use of his official recommendation as justification for leaving Tri-County overlooked the lack of serious difference between the two proposals.

“More is being made of my distinction between those things,” he said.

District I Commissioner Abe Laydon complimented Douglas and Tri-County repeatedly, pointing out that his jurisdiction will also soon separate from Arapahoe County in the 18th Judicial District, following a law that passed this legislative session to break up the most populous such district in the state. He said that when six Republican state lawmakers from the county asked the commissioners to withdraw from the department after the March stay-at-home order, he dismissed the notion.

“Because of the pandemic, I was more inclined to say, you know, it’s so important that we maintain this relationship and avoid a traumatic separation when we don't understand where things are at,” he said. But ultimately, “we’re just too big of a county to be tethered to Adams County and Arapahoe County for our local public health decisions.”

Of the executive director, Laydon said that Douglas “knows that the relationship is tenuous, so this is not a surprise to him at all.”

Douglas, in response, said he was unaware of that, instead deeming the decision to withdraw “surprising, disappointing and precipitous.”

Douglas County had done a review of its participation in Tri-County in 2004. The conclusion was that the programs, such as restaurant inspections and disease control, were more cost effective as part of a larger organization than if the county had its own department. Currently, the county pays $2.5 million to Tri-County, representing 23% of the three jurisdictions' combined population-based contributions.

“It was lukewarm — warm, just warm — as far as the relationship went,” said Hillbert, the former commissioner. He rattled off his past grievances with the department, citing a seemingly-arbitrary shutdown of a pizza restaurant and “programs that are totally against Douglas County values.”

“Our philosophy is free choice,” he added, pausing to catch his breath from behind his face mask. “I wear one to protect myself….I’ve got my choice.”

The commissioners set a deadline of July 11, 2021, to work to set up a county health department under the statute that authorizes every other local agency. In Laydon’s mind, the different trajectory of Douglas County was more akin to an “empty nest” scenario than a divorce, in which the county simply reached the point in its development where it had to move on.

“Your kids grow up. They get big. And you allow them to transition to that next point in their lives," he said. “It doesn't mean you don’t love them to death. You do. But you’ve got to let them grow up.”

When it was pointed out that the parents — Tri-County in Laydon’s metaphor — may know better than children, who sometimes rebel irrationally, Laydon laughed and acknowledged the parallel.

The growling dog

Jaroch, one of the health board members for Douglas County, voted against the mask order because she realized that unhappy constituents had no recourse at the ballot box for board members like they did with their elected officials. She and another member emailed the commissioners beforehand to explain their feelings on the matter.

After the vote, she says she received text messages from Thomas, who was upset that Joswick went against the wishes of the commissioners and voted in favor.

“I think they were hoping maybe that she would resign and I just thought it would be very petty and not right to pursue anything,” Jaroch said. “They feel that their health department, which they can’t control, is right now causing them a lot of heartburn and headaches.”

She mused that perhaps the commissioners believed that with their own health department, “they can direct people to do what they want to do. People in public health tend to be liberal people. That’s just the nature of their work. They look out for the disadvantaged.”

Thomas, when asked about what action she would like the board to take on Joswick’s appointment, responded, “there’s nothing that the board can do.” She was disappointed to see an email from Joswick after the vote in which the appointee wrote she had a “revelation during the meeting that said we are the health authorities and we need to take on the burden of making the decision. I would love to have passed the buck but in my medical opinion this is the right thing to do."

Thomas wondered what — or who — prompted the change of heart. (Joswick said the arguments in the meeting and her desire to avoid another stay-at-home order from soaring infections solidified her opinion.) Before changing the privacy settings on her personal Facebook page over the weekend, Thomas engaged with commenters maligning Joswick for her decision.

Because of the vote, Thomas said she lost confidence in the board of health’s decision-making. She likened the relationship to a growling dog and a child.

“When the dog growls at your child the first time you’re like, ‘Oh, wow. This isn’t good. But maybe it’s an anomaly.’ But when the dog growls a second time at your child, then you know you need to do something,” she said.

When the board of health voted for the stay-at-home order in March, “that was the first growl. And now when they totally disregarded what Dr. Douglas recommended, that’s the second growl.”

What was she worried would happen next?

“Limit the number of people we can have at a dining room table? Limit the number of people who can ride in a car? Are they going to shut down our businesses again?” she wondered.

While all three Douglas County officials have expressed varying degrees of support for mask wearing, Laydon explained that he drew the line on an order that results in his residents being “jailed or fined.”

He did not immediately know the extent to which such consequences were actually occurring elsewhere. In Denver, the largest jurisdiction with a local mask order, there had been 894 enforcement contacts for face coverings as of Tuesday. Only three businesses and one individual received citations.

With Gov. Jared Polis’s announcement on Thursday that he will issue a statewide mask mandate, the issue that prompted the breakup is moot. Even so, some people did not understand why Douglas County’s commissioners had staked so much on the losing side of the issue to begin with.

“A mask is a simple thing we can do to inspire freedom of movement, to allow us to open the economy, to allow people to go back to work, to keep businesses open,” said Adams County Board of Commissioners Chair Emma Pinter. “For a county that purports to be pro-business, I’m a little mystified.”

However, the perceived "freedom" that masks bring is not a universal sentiment. In a July 10 email to the board, a county employee wrote to the commissioners praising them for being "not afraid to take a stand against the onslaught of leftist ideals seeking to swallow our Country and destroy our system and heritage."

Thomas responded that the message brought tears to her eyes. "We believe God is directing our actions," she said, "and people like you are the wind beneath our wings."

This story is from Colorado Politics, a statewide political and public policy news journal. Used by permission. For more, visit coloradopolitics.com.