The state Board of Health will discuss today (Wednesday, Oct. 13) a complaint filed against Dr. Allison Berry, Clallam and Jefferson County health officer, saying she over-reached her authority in ordering that indoor customers of restaurants and bars must show proof of vaccination.
The state board, which will meet via Zoom, is scheduled to discuss the Clallam County complaint at 3:25 p.m.
To register, and sign up to comment — the comment period is at 10:50 a.m. — go here.
The board is expected to determine if an investigation is warranted.
Patricia Monson and an unidentified Clallam County employee filed the complaint on Sept. 16, alleging Berry violated state Revised Code of Washington (RCW) 70.05.070(1) when she issued the order in early September.
“They did it wrong,” Monson said on Monday. “The (Clallam County) Board of Health was supposed to have an open public meeting, properly noticed. There would have been testimony by Dr. Berry, and there would have been an opportunity by the public to discuss the proposal, to ask questions and have answers.”
“The RCW says that she has to act under the direction of the Board of Health,” Monson continued.
“That means there has to be a board meeting in which they direct her. The Board of Health cannot take any action without a publicly-noticed meeting.
“Either the health officer violated state law or the Board of Health did,” she said.
Monson said Gov. Jay Inslee had the right to issue emergency proclamations, such as the closure of public schools last year, to stem the spread of the virus, but she said Berry lacks similar power.
“She is a contractual employee, not an elected official,” Monson said.
“It is the Board of Health that has the responsibility to legislate all matters relating to public health.”
Therefore, in Monson’s view: “The order is void … when you violate people’s due-process rights, the order didn’t happen.”
Berry said Tuesday that “it’s a simple misunderstanding. They don’t understand the role of the health officer. They think we have to have a formal vote for each health officer action, and that’s just not the way it works.”
The RCW says that the health officer, who is appointed by the Board of Health, takes action “under the direction of the local board of health.”
Among several provisions in the law are that the health officer must “take such action as is necessary to maintain health and sanitation supervision over the territory within his or her jurisdiction;” as well as “control and prevent the spread of any dangerous, contagious or infectious diseases that may occur within his or her jurisdiction.”
Berry issued the order on Sept. 2, saying it would go into effect on Sept. 4. The day she issued it, Clallam County added 105 new confirmed cases of COVID-19, raising its total to 2,899 since the pandemic began. That same day, Jefferson County confirmed 22 cases of COVID-19, raising its total to 735. Three Peninsula residents — all unvaccinated with underlying health conditions — were reported that day to have died of COVID-19.
“We had a dramatic rise in cases in the two weeks prior to announcing the order,” Berry said.
The order appeared to have an effect, she said.
“About two weeks after the order, we saw a 45 percent drop in cases and a commensurate drop in the number of hospitalized.”
The order was the least-severe action that could be taken at the time, she said, given that public schools were reopening to in-person teaching. Her reasoning was that in-person education was a top priority, so exposure needed to be reduced in other areas.
Berry didn’t come to that conclusion alone, she said, although no public vote was taken.
Before any action, she consults with members of the Board of Health in addition to county legal staff, she said.
“There are a large group of people who write these orders in advance,” she said.
Monson, however, called for greater transparency. She said there was no emergency need for the order and that it could have been discussed at the Board of Health meeting in August or in a special meeting called for that purpose.
“This is about due process and honoring our due-process rights in this county,” Monson said.
“This complaint was filed because we want all of the stakeholders to come together. This county knows how to solve problems. We need to solve this. We shouldn’t be doing this. There has to be another way,” she said.
One alternative she suggested was that restaurants be open weekly to only vaccinated patrons for three days and to be open for another three days for unvaccinated people, with time available for cleaning in-between.
“You could have done three days on and three days off,” she said.
Said Berry: “I don’t think that would be very effective. You would likely get more outbreaks by concentrating unvaccinated people indoors,” plus staff would be exposed.
Monson questioned why the public health order allows children younger than 12 into restaurants when they haven’t been vaccinated.
“That’s age discrimination,” she said. “If you’re doing this to control transmission of viruses, then you wouldn’t want anyone who is unvaccinated in.”
Monson said she knows people who “believe they are being discriminated against. … You can’t just allow some people in who are unvaccinated.”
Said Berry: “We we try to make these orders as reasonable as possible. We try to look for places where reasonable decisions can be made.”
Once the FDA has approved vaccines for children younger than 12, then they also will be subject to the order, which will continue “until the Governor has declared the public emergency related to COVID-19 has ended or until this order is revoked,” according to the order.
To see a copy of the complaint and other information, go to the agenda here.