The schedule is now set for the Keene City Council to make its decision whether to renew the city’s mask ordinance as coronavirus cases surge locally and threaten to overwhelm local hospital capacity. The ordinance received a first reading at last Thursday’s council meeting and will be discussed and receive public comment at tonight’s meeting of its Planning, Licenses and Development Committee. Depending on the committee’s recommendation, the earliest the ordinance might be back for a second reading and a vote is the following regular council meeting on Thursday, Dec. 16.
Whatever action the council takes, its decision on the mask ordinance renewal will be a controversial one. But, no matter the fate of the ordinance, the council’s decision will not be a speedy one, approaching four weeks from when its renewal was first proposed, and a reassessment of the council’s ability to act swiftly in extraordinary circumstances is warranted.
The impetus for the proposed ordinance was a Nov. 23 email from Cheshire Medical Center CEO Dr. Don Caruso, who cited the rapidly increasing numbers of COVID cases and hospitalizations, which, he said, “are putting [the] community at high risk.” Motivated by Caruso’s email, councilor Randy Filiault immediately called for the council to bring back the mandate and emphasized the urgency of acting quickly, saying he felt there were ways the council could do so in a more expedited fashion than through its normal process for adopting an ordinance.
It turns out he was wrong, however. Filiault said last week the city attorney had advised him that, under state and local law, consideration of the ordinance should go through the normal ordinance process or risk being struck down in court.
If that’s true — and there seems no basis for doubting that advice — then it’s time for a re-examination certainly by the Legislature and perhaps locally of whether the council and other municipal governing bodies have sufficient flexibility to respond quickly to an emergency situation. In Keene, the city ordinances currently grant the city manager authority to invoke emergency powers to address a natural disaster, but there should be a way for the council to move more swiftly than the normal schedule to enact an ordinance in carefully defined extraordinary circumstances.
The usual process for adopting an ordinance — two readings at regular council meetings with typically at least one intervening public hearing — is likely always to take at least a month to complete, though depending on the calendar, it might be a few days shorter. That’s ordinarily a sensible approach, meant to assure adequate public notice and comments. But there’s a difference between a proposed ordinance affecting, say, sidewalks or building regulations and one addressing an extraordinary situation the council might believe calls for more immediate action.
Though it could be any kind of public health or other critical situation, the circumstances leading the council to consider renewing the mask ordinance are a case in point. Underlying the alarm being sounded by Caruso and other public health officials is the likelihood of more imminent coronavirus spread as the onset of colder weather and the holiday season keep people inside and gathering more — and their view that any delay means more spread and more stress on health facilities. Regardless of whether the council decides that warrants bringing back the ordinance, the council should have been able to accelerate its normal schedule without the risk its action will be struck down.