Lawmakers approve Scott’s town-by-town mask mandate


MONTPELIER — Selectboards and city councils will soon take up the often polarized debate over mask mandates after state lawmakers greenlit a bill Monday allowing municipal governments to enact their own indoor mask policies.

Republican Gov. Phil Scott, who proposed the measure and called for a special one-day legislative session to allow its passage, is expected to sign the bill Tuesday. It would take effect immediately.

As daily Covid-19 case counts have shattered previous records and the state’s hospitals have become strained, top Democrats have urged the governor to reinstate a statewide mask mandate indoors. Scott has refused — and made explicit that he would veto any effort to create such a policy via legislation. 

But last week he offered lawmakers what he termed a compromise: a bill allowing municipalities to enact local, time-limited mask requirements of their own.

Lawmakers reluctantly returned to Montpelier on Monday for a marathon, one-day session to pass the single measure. A little more than half of the Senate Zoomed in remotely. Because of House rules, members of the 150-person lower chamber attended in person. Masks were required in the building, and the Sergeant-at-Arms purchased 500 rapid antigen tests for lawmakers and the public.

But while legislative leaders took Scott up on his offer, they expressed little enthusiasm for the proposal itself and made clear that they resented the assertion that he had met them halfway. 

“What we got done today was a little less than a compromise to get something done,” said House Speaker Jill Krowinski, D-Burlington. 

 “A compromise implies that we had come together with a real conversation happening, and that together, we landed here. That’s not what happened,” echoed Senate Pro Tem Becca Balint, D-Windham.

The only public health expert to give testimony on the measure, meanwhile, argued that it would achieve little.

“‘Local control’ approaches to statewide public health crises are a formula for failure,” Anne Sosin, a public health researcher and policy fellow at Dartmouth College, told the House Government Operations Committee.

Sosin has long argued that a mask mandate is necessary to curb the spread of the virus. But burdening local boards with this decision would make it unlikely that mandates will be enacted where they are most needed, she said.

“Burlington and Montpelier, municipalities with higher observed levels of community masking, have already expressed their intent to enact mandates,” Sosin wrote to lawmakers. “Towns in Franklin County, where pre-K-12 schools are closed this week in response to an overwhelming number of Covid cases, will be less likely to implement mandates.”

[Looking for data on breakthrough cases? See our reporting on the latest available statistics.]

The measure passed the Senate by a vote of 17 to 10 and the House 90 to 41. It received nearly unanimous Republican opposition and lost some support on the left as well. 

Scott did not need the Legislature to act for local mask mandates to be enacted. With the governor’s approval, local health officers can put such local health measures in place themselves. (Scott slapped down Brattleboro’s attempt to put in place a mask mandate earlier this summer when the Delta variant’s impacts were first being felt in Vermont.)

The governor’s office has said it is more democratic for a municipality’s legislative body to pass a local mandate, as opposed to allowing health officers to make the call. But many lawmakers bristled at being called in to do something they argued the governor could achieve with a stroke of his pen.

 “We’re here today to give towns authority they already have but that the governor fails to recognize,” Sen. Anthony Pollina, P/D-Washington, told his colleagues while on the virtual Senate floor. 

A patchwork approach to public health is not ideal and would punt a controversial and divisive debate into the laps of local governments, said Pollina, who voted against the bill.

The Vermont League of Cities and Towns strongly supports Scott’s proposal and has said it’s particularly concerned about Covid-19 transmission during the upcoming holiday season. But even some town officials who say they are eager to pass mask mandates said they would rather have a statewide approach.

“Montpelier will almost certainly enact a local mask requirement,” City Manager William Fraser wrote to the governor last week. “It seems less likely to be helpful, however, if similar requirements are not enacted in neighboring communities.”

The House also considered — but rejected — a proposed amendment by Rep. Anne Donahue, R-Northfield, that would have made it explicit that municipalities could only enforce these mandates as civil violations.

“Silence on this issue,” Donahue told her fellow lawmakers on the House floor, meant that towns and cities could technically enforce these mandates as misdemeanor criminal actions — with a potential sentence of up to a year. 

 “And we might all realize that it would be extraordinarily unlikely that any municipality would do that, or that any prosecutor or judge will impose a sentence, but that’s not how we address changing our laws,” she said.

The House Government Operations committee briefly met in the well of the House to discuss Donahue’s proposal but voted against endorsing it. Rep. John Gannon, D-Wilmington, the panel’s vice-chair, told House lawmakers that laws delegating authority to municipalities were typically silent as to whether towns and cities should treat matters in a criminal or civil venue.

“This bill is about local control,” he said. “I think it comes down to whether we trust our municipalities to do the right thing.”

Donahue’s proposal failed 46 to 86. 

If approved by a city council or selectboard, a mask mandate will be in effect for an initial period of 45 days and then be subject to renewal every 30 days, according to S.1. All mask policies must sunset by April 30, 2022.

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