GLOCESTER, R.I. (WPRI) — The Glocester School Committee has filed an open meetings complaint to the Rhode Island Attorney General’s Office, claiming the state’s Council on Elementary and Secondary Education violated the law by voting on a statewide mask requirement last week.
Attorney Gregory Piccirilli, who filed the complaint, confirmed he did so on behalf of the school committee. Glocester school officials also authorized Piccirilli on Monday to potentially file a lawsuit over RIDE’s mask requirement, and to explore the legality of Gov. Dan McKee’s executive order mandating masks in schools. No lawsuit has been filed.
The K-12 Council voted last week to reject any school district back-to-school plans that don’t include a universal mask mandate, effectively requiring masking for the upcoming school year.
McKee, who had previously resisted calls to implement a mask mandate, signed an executive order to do so two days later.
Glocester’s complaint alleges that the K-12 Council violated the Open Meetings Act by voting on the mask requirement despite it not being advertised on the agenda.
The agenda for the meeting said the council would discuss back to school plans, but did not include any notice of a vote on a mask requirement. But board member Colleen Callahan made a motion to require universal masking in the school plans, which passed unanimously.
The vote took place after RIDE lawyer Anthony Cottone told the board members they did not have the authority to mandate masks, a power he said resides with the governor.
Education Commissioner Angélica Infante-Green said she would follow the K-12 Council’s directive, even if it resulted in lawsuits.
“Even though I don’t really have the authority,” Infante-Green said. “Basically what was said tonight is that we would take our chances with any lawsuit that may happen.”
The final back-to-school plans are due Friday.
Callahan said after the vote she considered Cottone’s legal opinion to be just his “interpretation” of the law, which she questioned.
“We thought this was such an important issue when we’re talking about the health and safety of our students and staff, that we were willing to take that risk,” she said.
A former RIDE lawyer is also questioning Cottone’s legal opinion. Paul Pontarelli, an attorney who says he worked at RIDE for 31 years, argues the agency had the power all along to mandate masks, through a state regulation that says RIDE and the Department of Health must approve school health plans.
Those school health plans must include “management of infectious diseases and outbreaks,” according to the regulation.
“The Commissioner of Education has clear, express legal authority to ensure that all Rhode Island public school districts and all approved non-public schools engage in the proper ‘management of infectious diseases and outbreaks,'” Pontarelli told Target 12. He also emailed members of the Senate Oversight Committee with his opinion on the matter.
“If a public school district fails to submit a disease/outbreak management plan which meets the Commissioner’s approval, it is in violation of the Health Department regulation,” he added. (Pontarelli was terminated by RIDE in December and is currently litigating the matter at the R.I. Labor Relations Board.)
Asked about the regulation, RIDE spokesperson Victor Morente said the current legal counsel does not believe it would apply.
“Counsel does not believe the statutory authorization to adopt health program regulations … is sufficient legal authorization for the Council or RIDE to unilaterally impose a universal face masking policy,” Morente said.
The regulation did not come up during the discussion at the K-12 Council meeting about whether RIDE is legally authorized to mandate masks.
While McKee’s executive order two days later would seem to make the K-12 Council’s actions moot, that may not be the case. The school plans are tied to COVID relief money under the Elementary and Secondary School Emergency Relief Fund (ESSER), meaning a district without an approved plan could conceivably lose funding. That funding concern is the subject of Glocester’s potential litigation against RIDE.
In the open meetings complaint, Piccirilli said the K-12 Council’s vote “should be declared void,” because a mask mandate was not on the agenda.
He noted that if the item had been publicly posted, opponents of mandatory masks may have shown up to testify. But instead, only supporters of a mask requirement testified at the open public comment period.
“It appears that the actions of the Council were a deliberate attempt to keep from the public their true intentions,” Piccirilli claimed.
A spokesperson for the attorney general said the complaint is under review by the open government team. RIDE has not yet filed a response.
“Glocester seems to have a strong case with this complaint,” said John Marion, the executive director of Common Cause Rhode Island. “The agenda had sections devoted to ‘discussion items’ and ‘action items.’ The vote occurred under the discussion portion of the agenda. A reasonable person would not think that the Council would take a vote on an item labeled for discussion.”
Glocester initially voted to have a mask mandate with several exemptions, including a “conscientious objection,” but on Thursday the School Committee Chair Jon Burlingame said they would comply with McKee’s mandate now that the R.I. Department of Health has issued specific protocols. The RIDOH protocol does not allow an exemption for conscientious objectors.