Health board dismisses complaint against Berry

State body says health officers have broad powers

A complaint filed against Dr. Allison Berry, health officer for Clallam and Jefferson counties, was dismissed unanimously by the state Board of Health.

Board of health members quickly voted to dismiss the complaint after a late-afternoon discussion on Wednesday and a public comment period earlier that day that included at least 10 spoken comments, with six supporting Berry and four who took issue with her order or with vaccinations against COVID-19.

The complaint alleged that Berry over-reached her authority under RCW 70.05.070 (1) in issuing an order in early September.

The order requires customers in Clallam County who want to eat or drink indoors in bars and restaurants to provide proof of vaccination against COVID-19.

Berry’s order was the first of its kind issued by a public health officer in the state of Washington, the governor’s office confirmed.

Patricia Monson of Clallam County and an unidentified Clallam County employee filed the complaint on Sept. 16, saying state law required the county board of health to vote upon the order before it was issued.

“This is a gross misinterpretation of the RCW that is going against a decision that somebody doesn’t like,” said Scott Lindquist, who made the motion to dismiss the complaint.

Terming the complaint “frivolous,” board member Temple Lentz said, “It’s a misunderstanding, probably an intentional misunderstanding, of statute. There is nothing that says a health officer has to have a vote on every action taken to protect the health of a community. In fact, it says just the opposite.”

Chair Keith Grellner said: “The local board appoints the local health officer based upon their credentials to do the work that needs to be done in their jurisdiction. They don’t direct a local health officer on a daily basis in every single thing that they do to uphold the law. … It is their (health officers’) responsibility to prevent the transmission of disease.”

Monson was saddened by the decision and was not available to be interviewed on Thursday, said a spokesperson for her.

In a statement from Monson provided by the unidentified spokesperson, Monson said: “I think it’s a sad day for Clallam County and the state when due process rights are given such little thought.

“I was very disappointed that this was only a seven-minute discussion,” the statement continued. “And I was very, very disappointed that the memo that the state board wrote indicated that they would not even look at the Clallam County code with respect to the matter.”

Monson had called for greater transparency when public health decisions are made.

Berry said she consults with members of the Board of Health individually in addition to county legal staff before a health order is issued.

But Monson had said the decision should have been made publicly, in a way that sounds similar to the method of decision-making mandated by law for bodies of elected officials.

That is not the way that public health operates, according to Berry and the state board of health.

The state health board agreed that state law gives health officers, who are medical doctors, broad powers to act under the county board of health that appointed them, and do not need to have every order to prevent disease and the spread of disease.

A health officer acts under the direction of the board of health “but it is not specified how,” said board member Stephen Kutz. “Local health officers have a lot of discretion to act.”

Board members also noted that the Clallam County Board of Health approved Berry’s order after it was issued and said that the state board lacked jurisdiction to dictate local rules.

Berry said Thursday that, especially “when you are paving new ground,” she finds it “understandable that people worry about the level of authority we have to control infectious diseases,” but she explained “everything we order has to go through legal review and can be challenged in court. We run it by the legal department, run it by commissioners in advance, make sure everything is less invasive as possible.

“We have to balance the need to control infectious diseases with individuals’ rights.

“The primary focus is the health of the community.”

At the same time, “you don’t want to start putting medicine and public health up to a public vote,” she said. “There has to be an independence of the office from politics.”

Berry said she had given notice during her weekly briefing a week before issuing the order that it was likely to happen, “but I think maybe people weren’t tuning in as much to public briefings.”

The briefing, which is every Friday at 10 a.m., can be viewed on the Clallam County website. Go to clallam.net/coronavirus and click on “View Clallam County Coronavirus Briefings.”

“We do have to act quickly,” Berry said. “Conditions on the ground change quickly. We had to act before the next board of health meeting was scheduled.”

Berry said the best reassurance that health officers can’t do anything at all “is looking at what we have done in the past.”

In nearly two years of the pandemic, masking and vaccination-proof orders have been made, but nothing more draconian.

Businesses were not closed, she pointed out.

“We try to do as little as we can but try to do as much as necessary,” Berry said.

She said she was grateful to the board of health for its decision.

“Hopefully this will put to rest any lingering concerns about the vaccination order. It’s positive for folks to know that we are operating” within legal bounds.

“It was meaningful that the board spoke to the authority and obligation of the health officer to control infections.”

Berry earned a medical doctorate in family medicine and a master’s in epidemiology and biostatistics at John Hopkins University in Baltimore, Md. Her residency was at Harborview Medical Center in Seattle.

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