In yet another twist for school mask policy in Adams, Arapahoe and Douglas counties, the local public health agency will hold another meeting about its mask order, which will include a “reconsideration of current opt out policy,” according to an agenda for the Aug. 30 special meeting.

Tri-County Health Department policy allows counties to opt out of the health agency’s public health orders. After the agency approved an order requiring masks in schools on Aug. 17, the elected leaders of Douglas and Adams counties voted to opt out of the order.

Arapahoe County’s leaders will decide whether to opt any part of the county out of the order at a meeting on Aug. 31.

The issue of whether to require masks in schools has evoked contentious responses from community members in all three counties, with residents speaking in public meetings by the dozens in recent weeks about whether local government bodies should support mask requirements to combat COVID-19. A crowd protested the Tri-County Health order outside the Adams County Government Center on Aug. 24 before the county commissioners voted 3-2 to opt out of the mask order.

The three Douglas County commissioners unanimously approved a decision to opt out of the order on Aug. 19.

Tri-County Health’s order requires masks for all children aged 2 through 11 years old — and all the individuals working or interacting with those children — in all indoor school and child-care settings in the three counties.

The health agency’s Aug. 30 special meeting comes shortly after Douglas County officials aired complaints about the process by which the Tri-County board of health approved the mask order. The county is seeking to overturn the order.

Tri-County’s board of health is the policy-making body for the agency, with nine seats on the board — three each representing Adams, Arapahoe and Douglas counties.

Even if the order were to be legally overturned due to problems with how it was approved, it appears that the board of health could come back together and re-do the vote, essentially issuing the same order again.

The special meeting will also include a “reconsideration of (the) school mask mandate,” according to the agenda.

Asked whether the board of health intends to consider re-issuing its mask order in response to the Douglas County commissioners’ complaints, Becky O’Guin, spokesperson for Tri-County Health, said it’s unclear what will occur at the special meeting.

Douglas moves to halt order

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

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. The board also considered issuing an order requiring masks for all individuals in all indoor school and childcare settings — regardless of age — but that motion failed.

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.

George Teal, the commissioner who proposed that Douglas County challenge Tri-County Health’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.

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, according to Jeff Roberts, executive director of the Colorado Freedom of Information Coalition, an organization dedicated to promoting transparency in government.

School districts require masks despite opt-outs

Asked what change to the opt-out policy Tri-County’s board will consider — such as eliminating counties’ opt-out ability in general or removing the ability of counties to opt out of the current school mask order specifically — O’Guin also did not specify.

Tri-County staff suggested holding the meeting, O’Guin said.

With two of the three counties in the jurisdiction having opted out, and more cases showing up because of the delta variant, "staff wanted to give the board the most current information and data,” O’Guin said.

See the board’s meeting schedule and agendas here.

School districts, schools and childcare facilities aren't required to follow the mask order if their county leaders opt out, but they can still choose to do so, according to Tri-County.

Douglas County School District Superintendent Corey Wise has said the district must follow the health order, regardless of whether county commissioners opt out. In a letter to the community, he cited district policy that states Douglas County Schools will follow the guidance of local and state public health agencies in responding to common communicable disease.

Douglas County School District on Aug. 17 officially announced it will begin requiring masks for students in preschool through sixth grade inside its school buildings, as well as for staff who work with that age group. 

At the time of the Adams County commissioners’ decision to opt out, several districts in Adams County already required masks for young students.