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Tuesday, November 23, 2021

Act 1 was recently passed by the Legislature and signed by the governor. It temporarily authorizes a municipality’s legislative body to adopt a face covering rule. The law is new and short but that does not mean it lacks detail. For that reason, the VLCT Municipal Assistance Center has compiled this list of frequently asked questions and answers about Act 1 and the face covering rules municipalities may now adopt. For more information, including model mask rules created by the VLCT Municipal Assistance Center (MAC) please refer to our Face Covering Rule Toolkit or COVID-19 Resources page.

This is not a comprehensive discussion of this topic. For assistance with the response to a specific question, please contact your town attorney or the VLCT Municipal Assistance Center at (800) 649-7915 or info@vlct.org.


The resources listed below were developed by VLCT staff for informational purposes only and do not constitute legal advice or a substitute for legal counsel. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. You should not rely or act upon this information without seeking professional counsel. VLCT makes no express or implied guarantee of legal enforceability or legal compliance. VLCT also does not represent that any resource is appropriate for any particular municipality. Please seek legal counsel before taking action based on anything found in these resources. 

What does Act 1, an act relating to temporary municipal rules in response to COVID-19 (“Act”), temporarily allow?

The Act provides municipal legislative bodies with the temporary and limited authority to make and enforce face covering rules in indoor locations that are open to the public. These rules can apply to any public or private place within the town’s boundaries that is open to the public.

Is there any other way that municipalities can implement a town-wide face covering requirement?

VLCT MAC thinks that municipalities have the authority to impose a local face covering rule applicable town-wide (as opposed to just on municipally owned property) under their own authority to make and enforce rules to prevent, remove, or destroy a public health hazard and to mitigate a public health risk pursuant to 18 V.S.A. § 613(a). Under this law before such rules can be implemented, they must first be approved by the VT Commissioner of Health and posted and published in the same manner that ordinances are required to be posted and published.

However, the Governor calls this opinion in question. The Governor has taken the position that Executive Order No. 06-21 (COVID-19 Post Emergency Recovery Activities issued June 15, 2021), supersedes 18 V.S.A. § 613(a) and requires all policy adoptions or changes related to the COVID-19 response or recovery to be approved by the Governor.

 

In response to recent calls from VLCT and legislative leaders, the Governor has offered temporary municipal face covering rulemaking authority as a compromise, allowing municipalities the temporary authority to enact and enforce temporary face covering rules for indoor public places.  

Given this hostility to local control, we recommend that legislative bodies consult with their town attorneys prior to adopting any rules outside the scope of the limited authority granted by the Act.

Can any municipal entity enact a local face covering rule?

No. The law explicitly confers this grant of temporary authority only upon the legislative bodies of towns (selectboards), villages (boards of trustees, prudential committee members), and cities (city councils, board of alderpersons).

Do local face covering rules apply to schools?

No. The Act specifically states that adoption of a local face covering rule does not apply to school buildings or school property because these remain under the authority of the school board.

Do local face covering rules apply to everyone?

Yes, unless the selectboard makes exceptions. The law has no stated exceptions to whom the rule applies; however, since municipalities have not only those powers and functions specifically authorized by the legislature but also any additional powers that are incidental, subordinate, or necessary to the exercise of such express authority, it is fairly safe to assume that they may also carve out exceptions to any rule they create so long as they are reasonable, do not implicate a suspect class, and are rationally related to the rule’s objectives. Hinesburg Sand & Gravel Co. v. Town of Hinesburg, 135 Vt. 484 (1977).

How are local face covering rules adopted?

Face covering rules are adopted in nearly the same manner as ordinances. The only exception is that the Act states that such rules are not subject to the permissive referendum process, but rather will take effect upon adoption. The vote to adopt a face covering rule must take place at a duly warned regular or special selectboard meeting and passage requires the majority approval of the total membership of the legislative body.  

Do local face covering rules have to be posted?

Yes. The Act requires that such rules be posted and published in the same manner that ordinances are required to be posted and published. The law governing the posting of ordinances requires that the full text or a concise summary be posted in at least five conspicuous places in town and published in a newspaper of general circulation within 14 days of the selectboard's vote to adopt it. The same standard therefore must be applied to local face covering rules. The information in the newspaper must include the following: the name of the municipality; the name of the municipality's website, if the municipality actively updates its website on a regular basis; the title or subject of the rule or rule; the name, telephone number, and mailing address of a municipal official designated to answer questions and receive comments on the proposal; and where the full text of the rule may be examined.

How long do local face covering rules last?

The rules continue in effect for a period not to exceed 45 days from the initial date of adoption or sooner if rescinded by the selectboard. The selectboard must meet while the rule is still in effect during this initial 45-day period to either rescind or extend the rule for an additional 30 days. Thereafter, the selectboard must meet at least once every 30 days to reconsider the rule, at which time it may rescind it or extend it for an additional 30-day period. If the selectboard does not act to extend the rule every subsequent 30-day period, the rule will automatically expire. The authority to adopt face covering rules last until April 30, 2022, which at that time, any existing local face covering rules will be repealed by operation of law (i.e. sunset) and have no further force and effect.

Do the posting requirements apply if and when the selectboard votes to extend or amend its face covering rule?

The Act is silent on this question. MAC’s opinion is that, because it is a rule, the adoption process and posting/publication process of rules and ordinances under 24 V.S.A. §§ 1972 (with exception of the voter referendum authority) applies. Given the risk of challenge to a renewed or amended rule on procedural grounds, we recommend adopting a conservative approach to this question and posting anew in accordance with the standards stated above.

How are local face covering rules enforced?

If your municipality adopts a local face covering rule, the town’s first and primary method of enforcement should be educating the public of the rule’s requirements and requesting voluntary compliance. If necessary, enforcement of an order would occur as with any rule or ordinance adopted pursuant to Title 24, Chapter 59 of the Vermont Statutes Annotated. This typically occurs via issuance of a civil ticket enforceable in the Vermont Judicial Bureau, the court with statewide jurisdiction over violations of civil rules and ordinances, though injunctive relief (court order commanding or preventing an action) can also be sought in Superior Court.

Can a local face covering rule be criminally enforced?

Yes, but a rule may only be designated as either criminal or civil, not both. Therefore, in order to enforce it criminally, the rule must be adopted specifically as a criminal rule. Violation of a criminal rule is enforced in the Criminal Division of Superior Court and may impose a fine not to exceed $800.00 and a term of imprisonment not to exceed one year.

Who is responsible for enforcing a local face covering rule

As with any other ordinance or rule adopted pursuant to Title 24, Chapter 59 this responsibility would fall upon whomever is designated as the enforcement officer in the rule by the selectboard.

Can we require people to wear a face covering when they enter municipally owned property?

Yes. The Act does not alter in any way a municipality’s power to oversee its own property. Under the municipal manager form of government, the manager has “charge and supervision of all public municipality buildings . . . unless otherwise provided for by the selectboard.” 24 V.S.A. § 1236(4). Therefore, the municipal manager may make this decision unless the selectboard has made other arrangements. Alternatively, the selectboard could make this decision in those towns without the town manager form of government. In such an event, although we believe that municipalities could decline service to individuals who are not wearing a face covering just businesses may, they would still have to provide an alternate way for those not wearing a face covering to access their services, programs, and activities such as by offering on-line or curb-side services, remote access, or other innovative solutions.