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Lawsuit being drafted argues Anne Arundel health officer’s public safety order requiring masks violates state code

In response to the Anne Arundel County health officer’s public safety order last week reinstituting a countywide mask mandate, Republican County Council member Nathan Volke and Republican county executive candidate Herb McMillan reached out to a lawyer about the legality of the order. That lawyer, Charles Muskin, is now drafting a lawsuit against the county and the county health department.

After the Anne Arundel County Council voted last week against allowing County Executive Steuart Pittman to extend his seven-day mask mandate and state of emergency as COVID-19 cases continued to spike and hospitals became increasingly overwhelmed, county Health Officer Dr. Nilesh Kalyanaraman took matters into his own hands.

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Kalyanaraman issued a public safety order under state law extending the mask mandate to the end of the month, which requires face coverings in indoor county public areas and crowded outdoor public settings.

County Attorney Gregory Swain said Kalyanaraman had the authority to do this under state statute 18-208 subsection B of the general health article of the Maryland Code, which reads, in part: “When a health officer is notified of an infectious or contagious disease within the county, the health officer shall act immediately to prevent the spread of the disease.”

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Swain also cited the Maryland Code of Regulations 10.06.01.06, which reads, in part: “The secretary or a health officer shall: Take any action or measure necessary to prevent the spread of communicable disease or to control a reportable disease and condition; and issue, when necessary, special instructions for control of a disease or condition.”

Muskin said Volke, who voted against the mask mandate and state of emergency extensions, and McMillan, who is also a former state delegate, approached him soon after Friday’s council vote and the subsequent public safety order.

“I had concerns about the legality of the order,” said Volke, R-Pasadena. “I reached out to him for his thoughts.”

“In a nutshell, the health officer doesn’t have the authority to enter what he did on his own,” Muskin said. “He has to get approval through the state health department.”

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Muskin cited Maryland General Health Article Section 3-306 subsection C, which reads, in part: “The health officer for a county shall enforce throughout the county under the direction of the secretary, the state health laws and the policies, rules and regulations that the secretary adopts.”

He also cited the same 18-208 state statute that Swain did but had a different interpretation.

“He is to ‘act immediately,’” Muskin said, emphasizing the last word. “This disease has been out there for almost two years now. This is not an immediate action. They’re trying to circumvent the vote of the County Council.”

After analyzing the statute, Muskin decided to drawn up a lawsuit against the county and county health department. He declined to name the plaintiff or plaintiffs who will be listed in the lawsuit.

As for a timeline, Muskin hopes to have the lawsuit drafted by Thursday and into the court sometime next week asking for a temporary restraining order.

“A temporary restraining order is when you go immediately to the courthouse and ask the judge to enter a temporary, 10-day order requiring somebody to do something or not do something,” Muskin said. “What we want is that the county not enforce this [mask mandate] because we have restaurant people who have been threatened by the health department already, and we want that to stop.”

Volke said he looks forward to seeing how this all plays out and feels confident in Muskin’s case. McMillan did not respond to requests for comment.

“Along with hundreds of thousands of Anne Arundel County residents, I look forward to the court declaring what we already know — the health officer lacked legal authority to disregard the vote of the County Council opposing a mask mandate and make up his own rules,” Volke said.

The county health department stands by its decision.

“The department of health’s actions are all defendable and justified under the applicable statutes and regulations, as [the Maryland Department of Health] has confirmed with us,” Anne Arundel County Health Department Director of Communications Megan Pringle said. “The statute the health department relied on requires the health officer ‘shall cooperate with the secretary to prevent the spread of the disease.’ Dr. Kalyanaraman cooperated with them on this issue. Approval is not required as the health officer has the authority to act ‘when a health officer has reason to believe that a disease that endangers public health exists within the county.’”

The Maryland Department of Health confirmed with The Capital it was made aware of the public safety order and took no position.

Jeff Amoros, communications director for the county executive, added, “We’re confident all the elements of the statute were met for Dr. Kalyanaraman to lawfully issue this order.”

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