‘Emotionally frustrating.’ Tri-Cities health board looks at fighting COVID mask mandates

The Benton Franklin Health District Board is legally obligated to follow the Washington state governor and state Department of Health mandates on masking, its attorneys said this week.

They also cautioned against the health board filing a lawsuit to overturn mandates, saying it would be expensive and the likelihood of winning would be small.

The report was issued after two members of the six-person board — Benton County Commissioner Will McKay and Franklin County Commissioner Clint Didier — said in December that they wanted to look at challenging mask mandates.

The legal briefing covered Washington state mask mandates and the requirement for masks in schools.

The health board discussion came as the Richland School District is surveying its staff and the parents of students on COVID-19 policies.

Among the questions it asked is whether the Benton Franklin Health District should be setting COVID protection policies, not Washington state government in conjunction with the state Department of Health.

It also asked whether staff and students should be wearing masks at all times in schools.

“To me it is extremely emotionally frustrating to see kids wearing masks at school when the death rate is not 1% (among children),” and the children who have died were likely not healthy, McKay said at the December meeting of the board.

The health board is made up of the six county commissioners in Benton and Franklin counties.

As of Wednesday, the Centers for Disease Control reported 862 people under 19 have died of COVID-19, McKay said.

“I can guarantee you 80 to 90 percent of Franklin County and Benton County are pretty much done with this crap,” he said after also discussing the current effectiveness of COVID vaccines.

McKay said he’d be willing to challenge mandates, even if the board loses.

But the legal opinion the district requested in response to the commissioners’ interest in fighting the mandate said there have already been multiple cases filed challenging mandates.

The board could simply follow the progress of other cases already in progress for decisions that might affect the validity of mask mandates, advised Kennewick attorneys Christopher Mertens and LeeAnn Holt in a written briefing given to the board at its monthly meeting this week.

One Washington state case that found that the governor and secretary of health have the legal authority to issue a mask mandate is being appealed.

In several other cases, the courts upheld the Washington governor’s declaration of a state of emergency during the COVID-19 pandemic.

In federal court, challenges to mask mandates on constitutional grounds have largely been unsuccessful, the briefing said.

The U.S. Supreme Court also has upheld local and state vaccine mandates.

“Attempting to challenge the mandates would be expensive from a legal standpoint as the state of Washington would clearly oppose any challenge and based on the current status of similar cases it is not likely there would be much chance of success,” the briefing for the health board said.

It also said that even if the health board challenges the state mask mandates, schools would likely continue to follow the mandates.

“The superintendent of public instruction has issued regulations that state Washington schools who willfully violate state COVID-19 health mandates risk losing state funding,” the briefing said.

Masks in schools

Schools without mask requirements are 3.5 times more likely to have COVID outbreaks as schools with mandates, Dr. Amy Person said at the Wednesday health board meeting, citing a September report of the Centers for Disease Control.

At the December board meeting Didier said he needed to see proof from scientific studies to convince him that mask mandates work, and the board requested a presentation in response at the January meeting.

She referenced more than a dozen studies that found benefits of wearing masks in schools or in public. Among the findings was that wearing masks reduced the risk of infection by 70% to 77%.

No public health measures are 100% effective, she said, comparing masks to seat belts that don’t prevent all deaths in car crashes.

Among medical groups that have backed wearing masks in schools are the American Academy of Pediatrics and the American Academy of Family Physicians, she said.

COVID vaccination studies

She also addressed the value of COVID-19 vaccinations with another list of studies, citing the Commonwealth Fund as determining that without the COVID vaccine, there would have been 3.2 times more deaths from the disease in the United States.

States with low rates of vaccination had four times the number of hospitalizations of children and adolescents as states with high rates of vaccination, she said, citing Centers for Disease Control information compiled for August.

Vaccinating adolescents protected against multisystem inflammatory syndrome in children, or MIS-C, reducing the likelihood they would have the illness by 91%, she said, citing information released by the CDC this month.

In the last six months of 2021, 95% of children in the nation hospitalized with the rare and potentially fatal syndrome linked to a COVID-19 were unvaccinated and no children who were vaccinated required life support during treatment of MIS-C.

But Didier said he found her presentation unconvincing.

“You are grasping at straws,” he said.

The board took no action on challenging masking mandates on Wednesday, setting the matter aside until members had the chance to study the briefing on legal options.