Can the Board of Health really do a re-do?
The upshot of this story, which you’ve probably heard by now as it made statewide news due to the hilarity of it, is that the Board Of Health is meeting tonight for a “do-over” of the vote to rescind the city-wide mask mandate.
They have to do that because former City Councilor Gary Rosen, appointed by Ed Augustus to the board in January, forgot to get sworn in before the first mask mandate meeting last week. Whoopsies! Rosen’s vote secured the 3-2 decision to rescind the mandate in the first meeting and he was extremely loud about it and carried himself in a bullying manner. But since he was never sworn in, he wasn’t technically a member of the board, leaving the vote at 2-2. But Rosen went and got sworn in after the meeting last week, and now they’re just going to do the vote again. The agenda for the meeting tomorrow night consists of one item:
A lot of people, myself included, have pointed to significant and unanswered questions about putting on a do-over like this. It’s possible it’s in violation of the Open Meeting Law and/or the city’s procedural rules. On the City Council, for instance, you have to wait three months before putting an order on the agenda after the council has deliberated on it. Real heads will remember the battle in December over whether to “file” or “table” an order to consider expanding the council to six districts, matching the new School Committee composition. Since the motion to “file” went through, councilors would have to wait three months before they could consider it again. This was also unrelatedly one of many recent examples of Councilor Moe Bergman using the “file” procedure toward obstructionist ends like a pouty little baby.
I reached out to a city spokesman for a justification and got back a statement from Mike Traynor, the city’s lawyer. “The Rules of the City Council do not apply to the city’s boards and commissions. The BOH adopted Operating Procedures for its meeting in 2016,” he said. “They do not have a time bar to bringing (sic) an item back before the Board.”
Traynor gave me a copy of the operating procedures, and indeed, there’s no clause explicitly preventing the same vote taking place in back-to-back meetings. But that’s where things get tricky. Per the board’s rules, issues not covered in the document refer to Robert’s Rules of Order, a book that dictates parliamentary procedures best thought of as the Politics Nerd Bible.
I’m no Robert’s Rules head, not even close. I know enough about it to know when the City Council is doing something wacky. On this I’m going to refer to Nicole Apostola, who wrote a fantastic breakdown of how Robert’s Rules applies in this situation.
The Board of Health’s rules mostly follow Robert’s Rules. Robert’s doesn’t have a 90-day delay, but it DOES require that a vote taken is permanent unless there’s a motion to rescind.
What is on the Board of Health agenda, though, isn’t a motion to rescind, but the same exact agenda item. There are no do-overs (in this way) under Robert’s Rules, and so, no, this isn’t the way this should be approached.
The vote was taken by a quorum of the board, and it didn’t pass (2-2). To vote on it again, someone needs to move to rescind the vote. That motion to rescind would need to pass a majority of the (current) board, and then there would be a vote on the item.
To answer the question – no, they can’t just do it the way things are on the agenda.
In the most layman’s terms possible, this means the board has to vote to do it over before they just do it over. If you’re lost here, I don’t blame you. They need to rescind the rescinding so that they may re-rescind. It’s wacky. And if they don’t go through that process tonight, the vote could very well be yet again invalidated. Further, one interpretation of Robert’s Rules dictates that only someone on the “prevailing side” — in this case, those who voted against rescinding the mandate — can bring a motion to reconsider. Another hook on which to hang this decision.
It can’t be stressed enough that because he wasn’t sworn in yet, Gary Rosen was just some fuckin’ guy. He was just some guy with no authority on the matter up there cajoling the board members into changing their votes so that it would be 5-0 and “send a strong message of support” for the City Manager. It would be no different if any guy off the street did the same thing. Just walked into the meeting room and sat at the table and tried to tell people how to vote—except for the fact that some random guy would be promptly arrested. Rosen is a former councilor and a talk show host and, as I’ve covered before, a guy who lives for the game of local politics and the drama of it. All this to say he should have damn well known better.
Rosen “said he wanted a 5-0 ‘unity’ vote from the board in support of rescinding the order,” according to the Telegram. It apparently wasn’t good enough for him that the order passed, he wanted it 5-0. The balls on this guy, in only his second month on the Board of Health, to come in and try to pressure other members into changing their votes. Good on board member Frances Anthes who called Rosen out, saying "I don't think 5-0 shows anything but herd mentality.”
Rosen, it should be said, is not an expert on public health. Far from it. Augustus’ decision to appoint him to the board was a transparently political one. Rosen, freshly out of City Council responsibilities, wanted to stay involved and Augustus gave him a way to stay involved, so long, it would turn out, that he acted as a bully whip for Augustus’ political objectives. If that wasn’t explicitly the agreed-upon deal, it doesn’t matter. It’s what happened.
So Rosen is just some guy, carrying himself with the ill-gotten weight City Councilors have in this city for just telling the City Manager he’s a very good boy doing such a great job.
On the other hand, the two members who voted against the order are medical professionals. Dr. Khanh-Van Tran is a cardiologist at UMass Medical Center, and Chareese Tran is a registered nurse at the hospital as well. Both said they felt it was too soon and would send the wrong message. It’s a perfectly valid opinion, carrying added weight given their occupations, and Rosen’s attempt to bully them into “unity” (read: submission) is ugly and silly.
Personally I’m agnostic on the mask mandate. Leave it or take it away and the net effect is pretty much the same, and that’s a thought I covered at length on the most recent episode of my podcast. Businesses who were enforcing a mask policy will continue to do so and the ones who weren’t will continue to not enforce it, albeit with slightly less pretense. And the city barely enforced it anyway. Something like 100 paltry fines.
But that’s not the issue here. The issue here is Rosen walking around like he owns the place and, at the same time, serving as a shill for Augustus, who also walks around like he owns the place. The idea to lift the mandate was not generated by the Board of Health. It came from the City Manager’s Office. The manager, in the initial meeting, personally appealed to the Board of Health to vote in favor of lifting it.
It’s entirely possible this vote goes the other way without Rosen. He took the place of David Fort, an outspoken critic of the Worcester Police Department and a generally left wing sorta guy. He’s also a medical professional and he chaired the board. It’s likely he would have voted with the two medical professionals in opposition and the mask mandate rescinding would have died a proper death. Why Fort was replaced by Rosen is a story that has not yet been properly told.
While Worcester was one of the first cities to move to lift the mask mandate, it wasn’t the last. Since, Boards of Health around the state have taken similar votes and the governor announced an end to masks in schools at the end of the month. For better or worse, it’s looking like a general policy consensus around the state to take the masks off. The School Committee is set to vote on lifting the district’s mask policy this Thursday, and the mayor has already signaled that he’s for it. While I’m expecting there to be some sort of challenge to the way the board is taking the vote tonight, the board is definitely going to just do it, and the vote will be the same.
To my mind, it’s not so much the policy decision here, it’s the way we went about it. Augustus installs a transparently servile political acolyte to the board; that acolyte pressures the board into voting unanimously in support of what Augustus wants. He does his best, and he gets the win, but wait—oops!—there are rules we have to at least pretend to follow, and he failed at the bare minimum of adherence to those rules.
Augustus appeared yesterday as he typically does on Talk of the Commonwealth and Hank Stolz asked him about the whole Board of Health situation.
“How does Gary Rosen not get sworn in,” Stolz asks. “Did he think because he had been sworn in for the city council or something?”
“Well he’s certainly been sworn at,” Augustus said. “Maybe by some folks on this show right now.”
And they both laugh and laugh. They get a big hearty chuckle out of that.
Tune in to the meeting at 6:30 tonight to see the conclusion of this farce. I’ll be watching too!
Thanks for reading everybody! As always please consider a paid subscription if you haven’t. On a personal note I quit my side job at Ralph’s and I am now taking this local journalism thing even more full time. Exciting/terrifying!
I am however still looking to join a few city boards—the affordable housing trust fund board and the new tree commission—and tomorrow night my resume and letter of interest (whatever that means) will be reviewed by the Citizen Advisory Committee. I applied as a half joke thinking I would not be appointed but I’m getting this far lol.
Also tomorrow, church leaders of our local African community will be holding a prayer vigil for Sue Paye, a young woman from Worcester who’s been missing since Jan. 9.
Here’s a link to more information on the vigil and how to report tips.
Speaking Talk of the Commonwealth you can listen to my recent interview on the St. Vincent nurses decertification drive here. I don’t think I’ve shared that yet, but it was a fun conversation.
The Council meeting last night was pretty boring. The most interesting topic of conversation was the Lake Ave pumping station and the 5 million gallons of liquid shit and piss which spilled out of it last week into Lake Quinsigamond. The key piece of that conversation which is still missing is how do we prevent this from happening again? The DPW folks basically said they don’t know. Very normal problem to be having. At least we have a new local cryptid—Poop Thing—a monster who will rise from the depths of Lake Quinsig in the spring, after the thaw, to take revenge for all the fish who suffocated on our poop and died.
Ok talk soon!