Previous to Governor Gianforte signing the new law yesterday, Montana required elected officials to submit to the whims of unelected health boards during a declared health emergency.
Montana law requires the establishment of local health boards to be formed on both the city and county level (depending upon city size). The codes were added in 2014 and are entitled, “Title 50, Health and Safety Chapter 2: Local Boards of Health.” It is available here. Although city boards must also exist according to the ordinance for every “Class 1 and Class 2 city” (a 1st Class City has over ten-thousand people, a 2nd Class City has between five and ten-thousand people), cities may join with counties to form singular health boards (most do).
Code 50-2.104 requires the county boards to consist of all county commissioners and at least two individuals appointed by county commissioners. Additionally, there must be five members minimum and they are required to have three-year staggered terms. County health boards with 1st Class or 2nd Class cities have representatives of those cities (at least one) on the merged health board. There is no requirement for health board members to have medical backgrounds or degrees in health. Most members of health boards, statewide, do not have medical degrees.
One must remember that when citizens show up to give their input at health board meetings, it is not a situation where those without medical degrees are challenging physicians, but one in which citizens without medical degrees are providing input to other citizens who do not have medical degrees, either.- Advertisement –
Funding for health boards include grants, federal and state funds, local levies, contributions by school boards, and private contributions. All health boards have at least one employee, a public health officer who is (1) is a physician (2) has a Master’s Degree in public health or (3) has “experience” equal to a Master’s Degree in the opinion of the county commissioners, who appoint the person. This means a public health officer may not have a Master’s Degree in medicine either, so long as they have “experience” in the medical field that satisfies whatever standard commissioners have set. If the commissioners do not appoint the public health official, the Department of Health and Human Services is permitted to do so.
Health Boards are advised on legal issues by the County Attorney, which is an elected office in Montana.
Health Boards are instructed in Montana law to hold regular meetings, at least quarterly, and special meetings as needs arise. They are to engage in “epidemiological tracking,” have oversight of screening and testing, configure quarantine policies (more on that in a minute), oversee the collection of “health data,” oversee health inspections, and provide educational opportunities for health officials.
Additionally, they are to pursue legal consequences for infractions of health codes, supervise sanitization of public establishments, and oversee the proper disposal of sewage.
It’s here that their legal power is sketchy and relatively (but not altogether) unchallenged in the State of Montana. Most of the tasks assigned to local health boards (above) are not laid out plainly in Montana Law, meaning that there is constant ambiguity as to the extent of their legal authority. Their ability to seek legal recourse for infraction of their health codes (many of which are not supported by Montana statewide legal codes) is dependent upon the willingness to prosecute the infractions by the County Attorney. This means the County Attorney is a check-and-balance on the authority of local health boards. Additionally, as seen in Gallatin County earlier today when the local sheriff told attendees he would not enforce mask mandates, local law enforcement must be willing to charge citizens with infractions of their health codes. This means that the County Sheriff is a check-and-balance on the authority of local health boards.
However, because Montana Code 50-2-124 issues a misdemeanor for any person who does not comply with rules adopted by a local board (the person shall be fined not less than $10 or more than $200), Governor Bullock’s office applies this to the County Sheriff. This means that if the sheriff does not enforce the will of the health board (theoretically) they could be charged with a misdemeanor. However, the sheriff would have to be prosecuted by the County Attorney, emphasizing the importance of the County Attorney as a check-and-balance to local health board authority. It is suggested, however, that if a prosecutor fails to prosecute the sheriff for disobeying the health board, the State Attorney General may intervene (an unprecedented – and unlikely – event in the realm of public health).
Also questionable constitutionally is the health board’s ability to level taxes without holding representative offices, as Montana Code 50-2-116 allows them to issue “fees to administer sewage control requirements.” Ostensibly, use of the term “fees” frees the language from clearer violations of constitutional law that would be present if the word “taxes” were used.
Sloppy language in Montana law provides little limit to a health board’s authority, reading, “[They must ] provide other services and functions as necessary.” One can imagine how an over-zealous health board may commandeer authority under the subjective phrase, “as necessary.”
Under these statutes, Montana has been held hostage by heavy-handed authoritarians, drunk on their unelected power, running roughshod over the fine citizens all over the state but most prominently in Gallatian and Lewis & Clark Counties. The health officers of these counties, Matt Kelley and Drenda Niemann respectively, have become renown of their harassment, abuse, and mistreatment of local taxpayers in the name of “protecting them.”
The bill, sponsored by pseudo-Republican David Bedey (“R”-HD86), was a surprisingly good bill from the left-of-center politician, proving that blind squirrels do occasionally get a nut. The legislation, and now law, will allow county commissioners to sign-off on or reject recommendations made by the health boards they appointed.
In addition, which is very good news for people of faith, health board demands cannot be forced upon churches or other religious gatherings. A final aspect of the bill that should earn wild applause from most Montanans is that the heaviest fine that can be imposed upon businesses for violating health board orders is $250.