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Rhode Island threatens parents objecting to 'inadvertent' rules for resuming school mask mandate

Department of Health lawyer blames "clerical mistake" for proposed regulations that violate settlement with parents who sued.

Published: February 2, 2024 11:00pm

The Rhode Island Department of Health risked contempt of court for allegedly violating a legal settlement with parents who challenged its COVID-19 school mask mandate, by saying it wouldn't require scientific evidence before reimposing a mandate.

Now RIDOH has a mixed message for those parents and Superior Court Judge Jeffrey Lanphear: Sorry, not sorry.

The agency sent the "wrong draft" of its proposed regulation to the Office of Regulatory Reform as the result of an "inadvertent mix-up," RIDOH lawyer Justin Sullivan told plaintiffs' lawyer Gregory Piccirilli in an email Wednesday.

Sullivan threatened to file a countermotion against Piccirilli if he didn't rescind his Tuesday contempt motion, accusing the plaintiffs' lawyer of violating "the rules of ethics and civil procedure" by rushing to court and an April consent order by "publicly sharing confidential communications and drafts."

One of Piccirilli's witnesses, Andrew Bostom, posted the lawyer's response Thursday. It says the consent order doesn't cover post-settlement behavior, Sullivan hasn't explained how the mix-up happened, and "the only way we have been able to get anything done in this case is to go public."

Piccirilli contrasted RIDOH's behavior with that of its former executive counsel and "consummate gentleman" Kenny Alston, who left the agency shortly before the Dec. 12 settlement conference. 

RIDOH repeatedly embarrassed Alston over "the last 27 months of legal wrangling," Piccirilli wrote. It "almost scuttled" settlement talks in August when it "blindsided" Alston with a memo to schools "intended to give the impression" mask mandates were still in effect, according to Piccirilli.

The parties memorialized the original proposed regulation in their Jan. 8 dismissal stipulation in Southwell v. McKee, which separately included provisions for public hearings and expert witnesses should The Ocean State consider a new mandate.

Sullivan and Piccirilli agree it's the same as a confidential draft that Alston shared with Piccirilli in April, early in settlement negotiations, which is missing two provisions from the proposed regulation that ORR received in mid-January.

The revised "Protocol to Consider Before Requiring Masking in School" – whose file name includes the date May 7, 2023 – said RIDOH would not require scientific evidence for "the effectiveness of face masks against a specific pathogen" before mandating masks again. 

It seemed to justify that leeway by emphasizing the "constantly evolving" nature of scientific research and RIDOH's reliance on "expert opinions" when evidence is "limited." 

Piccirilli provided Just the News with the contempt motion, which he rescinded after Sullivan's explanation, and associated exhibits. He also shared Sullivan's email threatening him with a countermotion, on the condition of not publishing it.

Sullivan pointed Just the News to RIDOH spokesperson Joseph Wendelken, who said Friday the correct version had been filed. 

"It is common for there to be more than one draft. A final file results from many drafts," Wendelken said, but didn't answer when the wrong draft was created or why it wasn't deleted when RIDOH and the plaintiffs reached agreement on the proposed regulation.

Piccirilli's motion and exhibits illustrate the tension between the parties since December, when they agreed to "the substance" of the settlement. In addition to Alston's departure, the state's five-member legal team on the case completely changed that month.

Attorney General Peter Neronha's newly elevated deputy chief for government civil litigation, Matthew Shaw, resisted including the draft regulation because it had to go through "proper rulemaking procedures" first, "doesn’t serve any purpose" in the settlement "and could, potentially, cause confusion."

"Kenny and I spent some time" writing that draft, Piccirilli retorted, worrying the "turnover" would cause the resulting language to "look a lot different." He accused Shaw's team of never mentioning the ORR procedure "in the last 9 months of negotiations."

When Piccirilli noted the mask regulation itself underwent only one day of review, Shaw said it got "expedited" treatment as an emergency regulation. He asked Piccirilli to stop trying to "relitigate this case" and including "your witnesses on emails" including Bostom, a former Brown University medical professor.

In a Jan. 30 email to Sullivan that copied Shaw and others, the same day as the contempt motion, Piccirilli fumed that different regulatory language got sent to ORR despite his Jan. 3 email to "everyone" with the "agreed upon version." 

Sullivan refused to tell him who drafted the new language and made the countermotion threat.

"This was simply a clerical mistake and could have been easily resolved with good faith communication" – waiting for Sullivan's backup to find out what happened – as Piccirilli's legal obligations require, Sullivan said.

"Given the past conduct of individuals" at RIDOH and the offices of Democratic Gov. Dan McKee and AG Neronha, "we tend to doubt the clerical mistake excuse," Piccirilli's Thursday letter says. 

He cited RIDOH interim Director James McDonald's alleged "lying in Court about pediatric COVID deaths" and trying to "reimpose" a mask mandate two months after the state told Judge Lanphear they were "done and moot." 

Sullivan was "not present when Kenny couldn’t get anyone from the AG’s office to show respect to the Court and have someone show up to a conference after everyone on the case quit," Piccirilli wrote. 

"I received not even the decency of a call or email recognizing the exasperation we were feeling" about the wrong submission to ORR, or an apology from state lawyers at a court appearance Wednesday, Piccirilli said. "I will not be deterred" in calling out such "bad faith."

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