UPDATED: Gayles issues new order prohibiting reopening of nonpublic schools
Health officer cites different Maryland law; governor overturned earlier order
Montgomery County Health Officer Dr. Travis Gayles
This story was updated at 6:25 p.m. Aug. 5, 2020, to reflect Dr. Travis Gayles’ new order. It was updated again at 11:20 a.m. on Aug. 6, 2020, to include information about a message from Kelly Branaman.
Montgomery County Health Officer Dr. Travis Gayles on Wednesday evening issued a new order prohibiting school reopenings, citing a different Maryland law than he used last week.
Gayles issued the same type of order on Friday, prompting Gov. Larry Hogan on Monday to issue his own order overturning Gayles’ decision.
But in a press release on Wednesday, county officials announced that Gayles had rescinded his previous order that mandated nonpublic school buildings remain closed through at least Oct. 1. Then, Gayles issued a new order with the same requirement, citing a Maryland law that says “when a county health officer has reason to believe that a disease endangers public health,” the officer can “act properly to prevent the spread of the disease.”
Previously, Gayles said he had the authority to issue the directive under Hogan’s order declaring a state of emergency in Maryland. Hogan’s order on Monday, though, prohibited any county health officer from making a blanket declaration of that type, saying those decisions are the authority of schools and school districts.
Neither state officials nor county Department of Health spokespeople could be reached for comment Wednesday evening after the press release came out about Gayles’ new order.
During a call with reporters earlier in the day, Gayles — with no indication that he would issue a second order later — said county officials were “continuing to evaluate the impact of the governor’s executive order on the directive that we put out.”
“As we get feedback on that, we will make the necessary announcements and updates once we have the full complement of data to inform that process,” Gayles said.
The governor’s office, however, said Tuesday that the effect of Hogan’s order is clear — it overturns the directive Gayles announced on Friday.
In response to questions from Bethesda Beat, Shareese Churchill, a press secretary for Hogan, confirmed on Tuesday that the governor’s order overturns Gayles’ directive, but still leaves Gayles with the authority to take action against a specific school if it is not following safety protocols.
Unlike the previous version, Gayles’ new order does not outline fines or jail time if school officials disregard the order. It says the order will remain in place until Oct. 1, or “until rescinded, superseded, amended or revised by additional orders.”
On Monday afternoon, a group of six Montgomery County parents and two Catholic schools filed a federal lawsuit against the county, challenging the county’s order about private schools.
Tim Maloney, an attorney representing the plaintiffs, said in an interview with Bethesda Beat on Monday night that they decided to file the lawsuit, despite Hogan’s apparent overruling, because they believe the county order remains in effect until it is formally rescinded.
The lawsuit said the county’s order is unconstitutional and that Gayles did not have the authority to issue the directive.
Plaintiffs asked the federal court for an injunction.
A hearing has been scheduled for August 14, according to Maloney.
In an email to Bethesda Beat on Wednesday night, Maloney wrote that plaintiffs plan to file statements in response to Gayles’ new order. They believe Gayles does not have the authority to issue the new directive, either.
In an email to Montgomery County pastors and principals, the Archdiocese of Washington’s interim superintendent for Catholic schools wrote that officials are “working at the archdiocesan level to evaluate the new order” from Gayles, according to the Catholic Standard.
The archdiocese also said it stands by an Aug. 1 statement that said it will “continue to have the health and well-being of our students, faculty and parents uppermost in mind and heart as we make our decisions regarding the reopening of our Catholic schools, the Catholic Standard reported.
On Friday, Montgomery County announced an order prohibiting the reopening of private and religiously affiliated schools until at least Oct. 1. The order came from Gayles, who for the past five months has overseen the county’s response to the coronavirus pandemic.
Gayles said he would reevaluate on Oct. 1 whether his directive needs to stay in place.
On Monday, Hogan announced an executive order of his own that said county officials in Maryland can’t institute “blanket” closures for schools.
Hogan’s order says the “blanket closure mandate imposed by Montgomery County was overly broad and inconsistent with the powers intended to be delegated to the county health officer.”
But during Wednesday’s media briefing, Gayles repeatedly emphasized that county officials are reviewing the governor’s order and no actions have been taken to rescind it.
Gayles has said he does not believe reopening schools in any capacity is safe in Montgomery County, due to the rate of COVID-19 transmission.
On Wednesday, Gayles again said that even the most thorough school reopening plans that conform to Centers for Disease Control and Prevention guidance will not be effective in Montgomery County because the transmission rate is too high.
He said CDC guidance is clear that reopening plans are contingent upon there being a low or moderate rate of community spread of the virus. In Montgomery County, that would mean about 38 new cases of the coronavirus each day for “moderate,” and about 8 new cases for “low.”
In the past week, the county has averaged closer to 75 new cases per day.
“It is important for schools to have plans … but the big message, however, is that in order for any of those plans to be successful, they must be in the setting of a jurisdiction with lower community transmission and lower daily caseloads,” Gayles said. “We have made significant progress in Montgomery County … but we have not achieved that in our county and we have not achieved that in our region.”