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BRATTLEBORO — At the Select Board’s Aug. 17 meeting, two resolutions were passed — the first, a mandate that people, both vaccinated and unvaccinated, when in any public spaces wear a mask.

The second resolution simply encouraged people to wear masks and to get vaccinated.

The board forwarded the mandate to Dr. Mark Levine, commissioner of the Department of Health, seeking his approval.

“The board was well aware they needed state approval before a mask mandate could go into effect,” said Peter Elwell, town manager.

But instead of hearing from Levine, the board heard from Gov. Phil Scott in his Tuesday press conference, during which he said the town lacks the authority to institute such a mandate.

Municipalities can mandate mask wearing in spaces under their control, as Brattleboro has done, said Scott, but a town “doesn’t have broad authority to put those restrictions in broad uses.”

In May, after 60 percent of Vermont’s population had been vaccinated against COVID-19, Scott lifted the pandemic state of emergency he imposed in March 2020. The revocation of the state of emergency also eliminated physical distancing requirements and masking for fully vaccinated people except for specific locations, such as schools, care facilities and prisons.

Currently, 76.5 percent of those in Vermont older than 12 have been fully vaccinated.

On June 15, the governor issued a post-emergency executive order declaring “all policy adoptions or changes related to the COVID-19 response or recovery, require approval of the Governor,” according to an email from Scott’s Deputy Chief of Staff, Brittney L. Wilson, to Elwell. “You have asked the Commissioner of Health to approve Brattleboro’s proposal to exercise an extraordinary regulatory power while there is no state of emergency. ... [Y]our request is not being granted at this time.”

Wilson wrote that if hospitalization data changes for Brattleboro, the governor would revisit the issue.

Wilson’s email was in response to an email from Elwell, in which he stated the board directed the request to Levine as required in Vermont statutes.

“We do think that it is important that the State allow ‘some measure of local control’ on this matter as there are differing circumstances (rates of spread, rates of vaccination, amount of out-of-state visitation) in different parts of Vermont,” wrote Elwell.

He noted that Windham County currently is classified by the Centers for Disease Control and Prevention as an area with a high rate of community transmission. In those areas, wrote Elwell, the CDC recommends that vaccinated people wear face coverings indoors.

“The Brattleboro Select Board acted on the science in taking its Aug. 14 action, the sole purpose of which was to slow the currently increasing spread of COVID-19 in our community,” wrote Elwell.

Brattleboro had between 11 and 20 cases per 10,000 people in the last two weeks, wrote Wilson, a rate of 0.2 percent.

“Most importantly Brattleboro has one of the highest vaccination rates in the state, at more than 90 percent of the eligible population,” she wrote, adding there are no COVID-19 cases in Brattleboro Memorial Hospital or Grace Cottage in Townshend.

According to Wilson’s email, Vermont has had an average of 19.3 cases and 4.8 hospitalizations per 100,000 people, while Louisiana, with about 47.8 percent of its eligible population fully vaccinated, has an average of 107 cases and about 57 hospitalizations.

“A stark contrast between the two states, yet the CDC guidance lumps them together,” she wrote. “[A]t this time the data does not justify a state of emergency.”

“The Select Board anticipated such a turn of events,” said Chairwoman Elizabeth McLoughlin, which is why the Board approved a second resolution encouraging the use of masks for both the vaccinated and unvaccinated in public spaces. “That needs no state approval and that will stand.”

She said the Board has no plans to appeal the governor’s decision.

Board member Tim Wessel was the only board member who voted no to the mandate. He published a public statement on social media on Friday.

“Brittney Wilson argues one of the same points I made in our last meeting when the mandate was passed …” he wrote. “Basically that the CDC guidelines are trying to address multiple areas with widely varying COVID statuses with one blanket policy, and that we should focus on local data when deciding local policies.”

But Board member Daniel Quipp said until the town received the email from Wilson, the Select Board had not received town-specific information about COVID’s impact on Brattleboro.

“The data should be accessible to local decision makers like the Select Board,” he said. “Not having that data leaves us fumbling around with the county level data that doesn’t speak to local conditions.”

Board member Jessica Callahan Gelter told the Reformer that getting the word from the governor rather than from the health commissioner “felt strange.”

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“Our assumption was with the data we have, if it was a wrong decision, somebody with more expertise, specifically in public health, would let us know if we were right or wrong,” she said, adding “it feels political” to get the message from the governor, rather than Levine.

“Every town is different,” said Gelter. “Brattleboro is different from smaller communities that are not on a major highway and are not a gateway into Vermont. We felt like this was the right choice to make for our community. We wanted to put this in place as a preventative measure.”

Gelter said the town has not heard back from the health commissioner.

Board Vice Chairman Ian Goodnow said he, too, was frustrated by the governor’s response.

“We believe we were following the statutory process by asking for Dr. Levine’s approval,” he said. “Instead of getting a response from his office, we heard it during the governor’s press conference. It’s been unfortunate how this has played out because this is a global pandemic. At every level of government everybody is trying to make the best decisions to protect people. I certainly feel that is what we have done on the board level here in Brattleboro. I was thinking the state would defer to the local officials when it comes to thinking about our community’s health.”

Goodnow said this touches on a larger issue of Vermont being what is called a “Dillon’s Rule” state.

According to the Vermont League of Cities and Towns, Dillon’s Rule was developed in 1868 by Iowa Supreme Court Judge John F. Dillon. In Vermont, this means municipalities receive all of their legal authority from the Legislature.

“The Legislature can grant municipalities new legal authority by either expanding current law, creating new authority, or approving a municipal governance charter,” states the VLCT. “This is opposed to Home Rule states whose state constitutions grant municipalities the authority to govern themselves as they see fit so long as they obey state and federal laws.”

Quipp said Dillon’s Rule is paternalistic and out-dated.

“It doesn’t trust that local decision makers are making the right decision,” he said.

In March, Brattleboro voters approved a charter change, which must receive approval from the Legislature and the governor, allowing it to adopt other charter changes approved for other towns by the Legislature.

“It’s simply saying, ‘If you have found this to be acceptable in Springfield, why shouldn’t it also be acceptable in Brattleboro?’” Elwell told Seven Days Vermont in May.

State Rep. John Gannon, D-Windham 6, vice chairman of the House Government Operations Committee, told Seven Days the proposals give municipalities too much latitude.

In 2019, Sen. Jeanette White, of Putney, who chairs the Senate Government Operations Committee, introduced a bill that would have created a municipal self-governance pilot program, allowing up to 10 towns to send charter change requests to a new commission, empowered to vet the proposals and make recommendations. The measure was approved 21-8 in the Senate but was never taken up in the House. It has not yet been reintroduced.

White told the Reformer she doesn’t understand the governor’s refusal of Brattleboro’s request “and the seeming discrepancy between where the CDC seems to categorize Brattleboro and where the state does.”

“I would like to see a bit more of a nod to local control even without the emergency declaration,” said White. “In the meantime I have noticed that everyone — well mostly — is wearing masks. Even if it was a declared emergency, some folks probably still would not wear them.”

President Pro Tempore Becca Balint, who lives in Brattleboro, said she's not ready to toss Dillon's Rule, but does support the push for limited self governance as proposed in the Brattleboro charter change.

She also said that up until this point, Vermonters have had really good, clear guidance from the Scott administration.

“The Delta variant is a big challenge and a great disappointment to many Vermonters who thought the end was in sight,” she said. “Town select boards need to be able to take steps to keep people safe during this surge in infections.”

Rep. Mollie Burke, P-Brattleboro, said it was unfortunate the the governor's office denied Brattleboro's request to offer the most protection to Brattleboro merchants, citizens and visitors.

"Universal indoor masking does not place an undue burden on citizens, and should not be a contentious issue," she said. "And given the high transmission of the Delta variant I believe that it is greatly warranted."

Burke said letters to the governor from Balint and House Speaker Jill Krowinski are asking for stronger protective measures, and a letter from 91 employees of the Vermont Department of Health is calling for more stringent guidance.

"It is our belief that our current public guidance, which encourages only unvaccinated individuals to wear a mask and makes no mention of the risk of COVID-19 among unmasked vaccinated individuals, is not based on our best understanding of the way the Delta variant is spreading," states the letter.

Goodnow said he has been very impressed by the actions of Gov. Scott during the pandemic and doesn’t believe it’s worth the board’s while to perseverate over the mask mandate.

“We need to move forward and encourage our community to maintain the safety precautions that are necessary to get over this new spike so we can get back to the little bit of normal we got a taste of this summer,” he said. “Everybody wants this — the governor, the Legislature, Dr. Levine and the Brattleboro Select Board.”

Bob Audette can be contacted at raudette@reformer.com.