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East Grand Forks City Council masks up after questions, legal review

After residents and the Herald asked why they didn't, East Grand Forks City Council members began wearing COVID-19 face coverings at their weekly meetings. The city's attorney and a lawyer at the League of Minnesota Cities, which aids local governments across the state, both told city officials that Gov. Tim Walz's mask mandate does not allow them to doff their masks throughout a meeting.

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East Grand Forks City Council members at their meeting on Tuesday, Dec. 1, after a pair of legal advisers told them they were required to wear masks at council meetings unless speaking or otherwise presenting. Screenshot by Joe Bowen/Grand Forks Herald

Something was different at East Grand Forks City Hall earlier this week.

City Council members and other city leaders who, almost universally, had stopped wearing COVID-19 masks at their meetings were all sporting one on Tuesday. That’s because, after messages from at least one East Grand Forks resident and a coinciding Herald article , a pair of legal advisers indicated council members were required to do so.

“We really felt like we were doing it right or within the parameters set forth,” Mayor Steve Gander said.

City staff and officials generally wear masks into and out of the building and sanitize their hands as necessary. By and large, council members did not wear the masks at their meetings because they believed they were far enough from one another to make masks unnecessary, or felt that wearing masks made it tough to hear one another, or both.

Minnesota Gov. Tim Walz in July ordered people statewide to wear a face covering in all “indoor business” or “public indoor” spaces. But, until recently, the city never asked for or received a formal review of the order that may have told them what they were required to do at council meetings, according to Herald interviews with city officials and staff.

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Walz’s order is worded in a way that leaves some room for interpretation. It allows people to temporarily remove their mask “when testifying, speaking, or performing in an indoor business or public indoor space, in situations or settings such as theaters, news conferences, legal proceedings, governmental meetings subject to the Open Meeting Law ... presentations, or lectures, provided that social distancing is always maintained.”

That could mean that simply being at a council meeting allows attendees to remove their face coverings, but City Attorney Ron Galstad and Jana O’Leary Sullivan, an attorney at the League of Minnesota Cities, both told East Grand Forks leaders they believe it’s more restrictive than that.

“My colleagues and I have interpreted this to mean that a person does not need to wear a face covering when actively engaged in testifying, speaking, or performing at a city council meeting – but they must otherwise wear the covering when not speaking/testifying/performing at the meeting,” O’Leary Sullivan wrote to City Administrator David Murphy on Monday in one of about 300 emails obtained by the Herald via a records request.

Galstad put it more succinctly: “Masks can be removed temporarily when speaking and then should be put back on,” he told Gander in an email on Friday, Nov. 27.

After Tuesday’s masked-up meeting, some council members indicated in phone calls with the Herald that making the change was something akin to the path of least resistance.

“I think it's just a matter of, ‘why rock the boat?’” council member Clarence Vetter said Thursday. “Someone complained, so why go through the hassle of arguing the point? Let’s just wear masks.”

Those emails obtained by the Herald indicate that Gander was reluctant to require masks at council meetings if there was any interpretive wiggle room in the governor’s order, or at least without a second opinion.

“Our Mayor and Council President (Mark Olstad) are in a ‘battle’ over whether masks are required by Council Members at the Council meetings even if they are ‘socially distanced,’” Murphy wrote to O’Leary Sullivan. “The Mayor refuses to require the Council to wear them without something in writing from the League saying it is mandatory – even though our City Attorney has told him it is mandator (sic).”

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The two disagreed on whether Galstad’s opinion was enough justification to push for council members to wear masks at their meetings. Olstad believed it was, but Gander wanted to hear from the league, as well.

“It's exactly what we pay them for,” Gander said of the league, which is an advisory and advocacy group for city governments across Minnesota. ”To give guidance on cases like this.”

And, if the league and city attorney both said council members were required to wear masks unless speaking at a meeting, Gander wanted to put together a city policy saying as much. Olstad didn’t see a need.

“I think we’re all adults on the council,” Olstad said. “And if you don’t want to wear a mask, you can attend the meeting by Zoom.”

Council member Dale Helms feels it's his right to decide whether he’ll wear a mask and it bothers him that he’s forced to. He nonetheless wore a mask to Tuesday’s meeting.

“I hope everybody’s pleased that we’re wearing them,” Helms said. “I don’t see the point, but that’s me.”

Only one council member has consistently worn a mask to in-person council meetings: Chad Grassel, the principal at South Point Elementary, who said he contracted COVID-19 in July and worried that he could transmit the virus from school to City Hall or vice versa.

“You just don't know if you're carrying, if you're asymptomatic, or any of those things, so I just just made it upon myself to wear masks,” he said. “I’d hate to have to have ... Mayor Gander shut down his work because I wasn’t responsible to wear my mask.”

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