Following a contentious January special meeting to discuss adherence to new state health department orders in the wake of the Omicron surge, the Rossmoor Community Services District Board voted 3-2 to meet virtually until the state health department lifts its current order.
The discussion was requested by Director Nathan Searles, who asked for clarification of the district’s meeting policy in the special meeting.
RCSD President Dr. Jeffrey Barke said Searles posted an item on the Rossmoor Homeowners Association Facebook page seeking to move the board’s January 11th meeting to Zoom, because of the COVID variant Omicron’s spread and because he, Barke, had stated at their last meeting that he refused to comply with an order by the California Department of Public Health regarding the wearing of facemasks.
In the post, Searles noted RCSD President Barke had said at the last meeting that he would refuse to comply with orders requiring masks to be worn pursuant to the California Department of Public Health order, so he wanted the special meeting so that “I don’t want our [regular] meeting Tuesday to be an argument about masks.”
At the special meeting held on Zoom, Barke again made it clear he had no intention of wearing a mask if the RCSD met in-person as normal at the Rush Park Community Center.
Director Tony DeMarco asked legal counsel Tarquin Preziosi to explain the current board resolution regarding Zoom. Preziosi said, in summary, that the current resolution allows the board to meet in hybrid format, but clarifications would be required for the board to meet in Zoom only mode.
“Why are we having this special meeting again,” asked DeMarco?
Basically, said RCSD General Manager Joe Mendoza, “President Barke outlined Director Searles’ concerns, and basically we want to explore whether we go Zoom or we stay hybrid because of the issue of wearing a mask.”
“So I have rather a different perspective on this,” said Director Mark Nitikman. My view is I obviously I think COVID is, and has been, a serious threat. The Omicron variant is far more contagious, but apparently less dangerous in terms of actually putting people in the hospital.”
“That notwithstanding, we have a mask mandate in place. I personally have health issues with wearing a mask for long periods of time. Like more than 15 minutes and I find it extremely uncomfortable and borderline dangerous.”
“In my view, the current mask emergency order is illegal and unconstitutional,” said Nitikman, a lawyer. “However, I know that no court has agreed with me on that point. So, I find myself in a dilemma and I have no interest in attending a meeting for two hours wearing a mask, which I will find personally difficult,” he said.
Nevertheless, he added, “I also have no interest in flouting the law that has been, if not duly enacted, is currently the law. And I feel as a board member, that it is our duty to uphold the law.”
“As it stands now, I think that we ought to go to Zoom,” said Nitikman, saying the RCSD should not allow its critical business to be hijacked by a pandemic or mask mandate discussion.
“To Director Demarco’s question as to when will this end, well, I have a crystal ball in my office, but it’s not telling me any answers at the moment,” he said.
“It makes no sense to me,” said Barke. “It doesn’t make any sense to repeat what we did in early 2020. That didn’t work. So, for us to now say, we’re going to take the governor’s order and go one step further to mandate for the citizens of Rossmoor that they can’t attend an in person public meeting. Makes no sense to me, whatever,” said Barke.
As a physician, Barke said Omicron isn’t more contagious, but does carry a higher viral load so it has been able to out compete the Delta variant. If anybody is worried about a health hazard, said Barke, they can stay home and attend the hybrid session.
He also cited a number of medical journals that cited the ineffectiveness of masks and gave other medical justifications, but mostly said officials have a responsibility to stand up against what he termed “tyranny” of state regulations.
“I’m not a lawyer but at what point would there be a law that you think is illegal or unconstitutional, that you would be willing not to follow,” asked Barke. “Our governor is operating under emergency powers that are unconstitutional,” he said.
“I think it’s important that elected leaders in particular stand up against these types of illegal orders,” said Barke.
Nitikman asked Preziosi that if the RCSD were to have a meeting, and President Barke refused to wear a mask and someone was infected, could the district suffer any legal consequences. The legal counsel said, ‘yes’.
“I want to clarify what our attorney just told us,” said Nitikman. “Tarquin, just to clarify, are you saying that if one director refused to wear a mask at our meeting that that could subject the district to liability by the Department of Industrial Relations or other state agencies, he asked the district’s attorney?”
“Yes, it is,” said Preziosi. “It is theoretically possible.”
Director Searles, also an attorney, said it absurd to think the RCSD can follow only the laws they agree with.
“It’s important to me, and I think it should be important to each one of you, that when you pull papers to run for this office, and you took an oath when you were sworn in [to this office] it was under the state’s constitution,” said Searles.
“We don’t get to choose what laws to abide by, or not, in our service to this community,” he said.
He said that if any of the staff were to get sick because they came to a meeting and people were not wearing a mask, “that’s on us as Directors,” said Searles. “Because we are the ones who hold court for that meeting.”
“It is our duty to follow the laws as they are whether we like them or not,” said Searles. They are the laws of California and the ones we are sworn to have during our meeting. It’s not an option. That’s not local jurisdiction,” he said.
Searles suggested it was unfair to have a policy to ask someone “you follow the law and stay home versus someone who doesn’t want to follow the law and show up for the meeting. That is disrespectful and wrong,” he said.
He told Barke: “This has nothing to do with your scientific evidence or knowledge of the law.”
“If you don’t want to wear a mask Dr. Barke, you can do this at home. You said you’re not going to abide by it. And that is not giving us any reassurances that anyone who shows up is going to be asked to wear a mask,” said Searles.
“So you can’t speak for everyone because you aren’t everyone. We cannot control our guests. It’s a public forum. So if you want to control the public forum, the only way we can do so safely based on your comments is to do it on Zoom,” he said.
Preziosi advised RCSD that they only needed a motion to hold the meeting on Zoom, so Searles moved to have the Jan. 11 meeting only on Zoom as he and Barke debated the criteria to determine under what conditions they would again meet in person.
Searles, Directors Jeffrey Rips and Nitikman voted for the motion for Zoom while President Barke and Diretor Demarco voted against. It passed 3-2 and the RCSD held its Jan. 11 reorganizational meeting entirely on Zoom (see related story).