Thursday, May 21, 2020

Davidson stumbles past legal/enforcement problems with multiple coronavirus votes on Tuesday

Davidson's Board met on Tuesday for a marathon meeting to discuss options on how to make local coronavirus controls more restrictive as the State moves towards Phase 2 reopening as soon as this Friday.

The most contentious item up for discussion was whether or not to impose a mask wearing requirement in public spaces, specifically inside businesses, set to reopen with Phase 2.

After lengthy discussion the Board initially voted 4-1 to "require" businesses to post a sign stating the mask wearing policy of the business with Commissioner Autumn Michael being the sole dissenting vote.  Commissioner Michael preferred waiting a couple of weeks to see how things went with reopening before making any mandatory requirements. The Board then voted 2-3 against a motion to make mask wearing mandatory by employees with Commissioners Matthew Fort and Jane Campbell voting for the requirement and Commissioners Jim Fuller, David Sitton and Autumn Michael against.  If there was any surprise in this second vote it was with Commissioner Sitton voting against it.  After being the most outspoken along with Commissioner Fort in support of mandatory mask requirements, it was surprising to see him vote against it.

However, things quickly unraveled on the passed signage requirement when Police Chief Penny Dunn and Economic Development Director  Kim Flemming began asking questions about enforcing it.  It soon became clear that making the signage required had unintended consequences.  Because it was being required it would need to be an amendment to the State of Emergency Proclamation signed by Mayor Knox on March 23rd, violations of which could be a Class 2 criminal misdemeanor.


After much more discussion and hypothetical scenario pondering, the Board then undid the 4-1 vote making signage required to making the signage just recommended.  That motion passed unanimously.

Disaster averted!

The Town was no longer at risk of making the nightly news for inadvertently making some of its business owners misdemeanor criminals for not having a sign or for not enforcing a sign they did have.

The good news is that encouraging (not requiring) mask wearing is hardly a bad idea, and that's where the Town ultimately ended up.  The saying "sometimes it's better to be lucky than good" comes to mind.

So, what set the stage for the messy decision making process by the Board?

That part is pretty simple - poor preparation and advice on the part of Town Attorney, Cindy Reid.  The Board and the Mayor never would have been put in the position they were and hours of stressful discussion could have been avoided,  if their attorney had given them good and complete advice going into it.

Any requirement, any mandatory restriction put in place under emergency powers would have required updating the Emergency Proclamation and imposed penalties for violating it.  That complete advice should have been given to the Board before the discussion.  Instead, the Board was just told they had the authority to make more restrictions, but not the real implications of doing so - charging violators with a misdemeanor.  When it did come up it should have been the Town Attorney doing so, not the Police Chief.  Instead, throughout the discussion, whether it was on points of order with motions, or with this more critical legal advice, the Town was lucky to have others such as the Chief and Commissioners Michael and Fuller, both attorneys, to point out the issues.  The Board really deserved better from the Town Attorney on what was potentially the stickiest legal situation the Board has dealt with in many years.

Again, sometimes it's better to be lucky than good, but when it comes to things this important, it's important to be good.

To end on a more positive note, the Town also agreed Tuesday to move to Phase 2 along with the County and State when that occurs.  They also will be looking at helping local restaurants by figuring out ways to have more outside seating which should definitely help restaurants along Main Street serve more people under Phase 2 capacity restrictions.  That's something which will be a big help as those critical businesses to the community try to get back on their feet.  There will also be mask wearing signage printed up which will encourage, not require, use.

No comments:

Post a Comment