Hello everyone!
My name is Jason Penland, and I am one of the School Directors for Bald Eagle Area School District. I wanted to take the time to thank the people that attended the board meeting tonight, and those that emailed us prior to the meeting with their thoughts on the mask mandate. As the board meeting itself is unfortunately not a good way to have a back and forth conversation, I wanted to assure you that we do read every email and listen to every comment. I also wanted to provide a summary of some of the recent events involving the mask mandate from the perspective of a board member.
As a parent, I have been immensely frustrated by this mandate. Beaver Stadium can fill to capacity this Saturday with no restrictions. We went to Target, WalMart, and BestBuy on Sunday, and were not required to wear a mask anywhere. All summer long, anything we wanted to do, we did! You can still party, picnic, camp, and do anything you want with virtually no restrictions.
One of the parents spoke tonight about the lack of uniformity in how the mandate and most things Covid have been implemented, and I could not agree more. I think of Covid transmission like a dam with a thousand holes in it. Each hole represents a way that we can get Covid. I feel as though this mandate was created by someone picking a random action out of a hat and saying, “Let’s do this!”
Not only does it feel like this mandate was an arbitrary decision, but I also think, “Why now?” We have been in school for a week, as had most of the Commonwealth. All of the forecasting models predicted Covid would run the path it did, and with the intensity that it has. Tracking a path from Europe to the southern part of the US, we knew Covid was going to arrive. Nothing was put in place, and no warnings were given about a mask mandate. We actually had assurances from the governor that there would be no mandates.
As for when it was announced, the public, the board members, and the administration all learned of the mandate at the same time. We were given no advance warning. A mandate was decreed with extremely vague language, and we were told to follow it.
The next day, after I had read the mandate, commentary on the mandate, and what implications it would have for the district, I spent 2 ½ hours talking with legislative aides, a legislator, and board members from other school districts.
On the legislative side, I asked them the same question: What recourse do we have? Is there anything we can do to fight or delay this? They all said the same thing: Follow the mandate. In the end, there was nothing they could instantly do, although they hoped some relief would come after a time.
I spoke with a board member in another school district who had discussed this with their representative as well. They were told to “Fight it with everything you got!” Okay! Great! And where will they be when we ignore the mandate and face the wrath of the PDE and DOH? They’ll be on the sidelines rooting for us, but with no actual financial help or liability protection. This representative had no solution other than empty words. They sound great and get people fired up, but they are ultimately meaningless.
After realizing that flat out ignoring or fighting the mandate would be fruitless in the interim, we, along with our solicitor,tried to interpret the language as broadly as possible to allow maximum flexibility with enforcing the mandate. Looking at the results of some of the school districts whose approach was flat out draconian, to others that simply said “We will not follow it,” I honestly feel like the district did a great job in threading the needle.
A lot of comments tonight revolved around why the district doesn’t just say enough is enough and ignores the mandate. I want to explain this as well as I am able.
In a word, it comes down to liability. By issuing this mandate, the governor has placed a tremendous amount of liability on the school districts. All the ways that I told you we had to get Covid? They are still there. Nothing has changed with the amount of possible vectors in which a child or faculty member can get Covid. What protects us now from a financial perspective is liability insurance. If it is determined that we are not making a good faith attempt to follow this mandate, our liability insurance gets removed. This is when the district that I, you, and everyone else have loved our whole lives, ceases to be.
Picture one or more lawsuits brought as a result of someone getting sick and nobody following the mandate. We have the potential to go from a district that is in great shape financially, to being under fiscal conservatorship by Harrisburg. A cascade of lawsuits would have to be defended out of our own pocket. The legislators that tell us “Fight it every step of the way!” will not be backing us. We will be out in the wind, and completely on our own.
It is at this point that I as a board member have to look at our district, at its outlying schools, and say “Is it worth losing this to make a point?” Lawsuits and eventual fiscal conservatorship would affect us in ways we have no ability to recover from. Think of the outlying schools gone. Think of 30:1 student to teacher ratios in every class from K-12. Think of barebones academic offerings. Before saying this, I verified that it is a possibility, and it is a very likely possibility.
Here are my final thoughts on why we as a board and administration have little recourse. Today we learned that one of the districts that had decided not to follow the mandate has received a letter of warning from the PDE. Below are the consequences that will be enforced:
1. Failure to implement and follow the control measures under the Order subjects each board member to the penalty provisions of the Disease Prevention and Control Law of 1955. A violation occurs each day that the Order is not enforced and each board member may be charged a financial penalty for each student or staff member attending the school.
2. Failure to implement and follow the control measures under the Order exposes each board member to personal liability under 42 Pa.C.S. §8550 (relating to willful misconduct), as well as other remedies and actions as provided by law. PDE is serving notice to each board member that failure to comply with the mask order is a violation of law. A knowing violation may be used by a plaintiff to establish personal liability in a negligence action per 42 Pa.C.S. § 8550.
3. Each board member may face lawsuits from those who may be affected by noncompliance with the Order, including children who may become ill as a result of the district’s violation, or disabled children who are unable to attend school because of the district’s failure to follow the order.
4. Each board member may bear potential liability with no indemnification or protection.
5. School districts’ liability insurers are exploring cancelling coverage as a result of those districts’ possible illegal conduct and potential purposeful violations of law.
6. School districts’ violations of law may negatively affect workers’ compensation claims coverage and premium calculations.
7. Districts that do not comply with or elect to violate the law may be referred to the United States Department of Education’s Office for Civil Rights for investigation. In particular, failure to comply with the Order may prevent immunocompromised and other susceptible students from attending class in violation of the IDEA, ADA, and Rehabilitation Act.
Any assistance with getting through this is appreciated. The best thing that we can do, both as board members and individuals, is to bombard our legislators on every level and let them know that we need help! We the board have been doing everything we can, but our power is limited.
I am more than happy to talk to anyone in more detail about any of this. Please feel free to email me at the below address, and I’ll be happy to respond either with an email, a phone call, or whatever works for you.
Take care!
Jason.penland@beasd.net