Building “culture of compliance” preferred to punishments for Bloomington’s triple layer of COVID-19 health orders

The major COVID-19 news across the state of Indiana on Wednesday came at governor Eric Holcomb’s mid-afternoon press conference. Holcomb announced a statewide mandate for wearing face coverings to prevent the spread of the virus.

The governor’s order is to be issued Thursday, and is supposed to take effect on Monday, July 27.

The governor’s order will make a failure to wear a face covering, in certain prescribed circumstances, a Class B misdemeanor, which carries a possible sentence of up to six months in jail and up to a $1,000 fine.

But at the press conference, Holcomb said, “Please know the mask police will not be patrolling Hoosier streets.”

Enforcement of the governor’s mandate could be a moot point. Indiana’s attorney general on Wednesday issued an opinion that says the governor lacks the authority to criminalize a violation of the mask mandate. The opinion says it’s the state legislature that has that kind of authority.

In any case, the governor’s concept of getting compliance through education and the specter of a punishment, rather than issuing actual citations, has been mirrored by the two local layers of government. Monroe County and Bloomington officials, elected and appointed alike, have all stressed an educational rather than punitive approach.

Monroe County’s health regulation makes violations a Class C ordinance violation, which carries with it a possible $500 fine.

At Wednesday morning’s Monroe County board of commissioners meeting, commissioner Penny Githens said, “Our goal is to have law enforcement officers … providing information and education and to provide face coverings to those who do not have one.”

But Githens added, “If the only way to achieve compliance is for law enforcement to issue citations, we expect them as public safety officials to do just that.”

The last part of Githens statement was an allusion to the board of commissioners action that morning to issue an executive order directing the sheriff to enforce the county’s health regulation. The health regulation was enacted by the board of health on Tuesday night.

Heads of local law enforcement have said they’re not going to be leading the mask-wearing enforcement effort.

Bloomington’s mayor, John Hamilton, said at Wednesday night’s city council meeting, “I don’t think we will see large numbers of fines. I think what we’re going to see is an attempt to really build the culture of compliance.”

Hamilton added, “If enforcement is needed, …most of that will probably be done by institutions, restaurants, shops, stores …”

An official statement to The Square Beacon from the mayor’s office earlier in the day said, “The City is planning to take a stepped approach to enforcement that focuses on education, outreach, and collaboration with local businesses and other entities, because the intention of the city’s order is a protective, not a punitive one.”

President of the city council, Steve Volan, said on Wednesday that the elevation of the health order to a law makes a difference. As an example, he said he’d noticed a retailer with a printed sign that said “Mask Required” with an additional written in a marker underneath, “by county ordinance.”

More on Enforcement

Responding to a query from The Square Beacon, Monroe County’s sheriff Brad Swain said, “MCSO will be very hands-off on any police enforcement. If we have a contact with a member of the public, we will emphasize education, and we have masks to make available if a person would like one.”

Swain added, “I can’t foresee a situation where a person would be cited or arrested. Then again, people often surprise me with their odd behavior.”

Swain said his deputies would not be wearing masks doing their regular work. But deputies will wear a face covering when going into business or other places where people are required to wear one, he said. Deputies will keep N95 masks for high risk calls, like those where a person is involved, who is known to be infected with COVID-19.

His deputies will follow basic safety precautions, Swain said, like wearing a N95 mask, or maintain safe distance, or keeping contact under 15 minutes.

Swain said Monroe County sheriff’s deputies will not be “chasing down people going about their day and demanding they put on a mask.”

Bloomington police chief Mike Diekhoff responded to a question from The Square Beacon this way: “At this time, there is no plan for BPD to be the lead on mask enforcement.”

Diekhoff’s response was consistent with Bloomington Transit general manager Lew May’s remarks on Tuesday night, when May told BT board members at their meeting, “If somebody refuses to wear a mask, we’ll go ahead and let them on the bus. We’re not going to engage in conflict or argument. We’re not going to call the police. In fact, the police have told us not to call them for mask enforcement.”

In his remarks to the Bloomington city council at its regular Wednesday meeting, mayor John Hamilton said he expects that BPD’s role will be to enforce the limits on crowd size.

Hamilton pointed to the experience that BPD gained back in the spring when the statewide stay-at-home orders were in effect. “Indiana University Police Department and the Bloomington Police Department worked hand-in-glove very collaboratively to try to ensure that private gatherings complied with those size limits that we had back then. And I think that’s what we’ll probably see here, too,” Hamilton said.

Hamilton described the basic approach as building a culture of compliance.

Lag between city and county?

The county’s health regulation requiring a face covering to be worn, by most people in most situations, went into effect on Wednesday at noon.

The regulation was part of the action taken by Monroe County’s board of health on Tuesday night. The board’s action on Tuesday in large part took the wording of last Friday’s health order from the county health officer—which includes a face covering requirement, along with additional restrictions on crowd size and bar-top service—and elevated it to the status of a regulation.

But the previous day, Bloomington’s mayor, John Hamilton, issued an order accelerating the timing of the crowd-size and bar-top service rules, so that they’re effective on Thursday, July 23.

The limits on crowd size are 50 people for non-commercial gatherings and 100 for indoor commercial gatherings, 150 for outdoors commercial gatherings. Restaurants can’t provide bar-top service—all customers have to be seated at tables.

Last Friday, when Hamilton talked about the logic behind the accelerated timing, he said, “Even a week can make a difference in [COVID-19] case numbers when it comes to behaviors.”

On Wednesday, at the city council’s meeting, Hamilton elaborated, “I have strongly urged that we walk hand in hand with the county through this and have done that generally. I was not eager to accelerate these dates, but I just couldn’t justify not accelerating some of these dates, given what I felt was the threat and also the evidence that we’ve seen from around the country, that a difference of a week can make a real difference in the curve. ”

According to the mayor’s office, Hamilton’s authority to issue the order is based on a part of Indiana Code that gives a local government general powers to ensure public safety. [IC-36-8-2-5] A subsequent news release added the statute that covers home rule. [IC 36-1-3]

The county’s health regulation is enforceable by any law enforcement officer starting July 31. What about the mayor’s order? Can it be enforced between July 23 and July 31?

A query from The Square Beacon about that got the following response from the mayor’s office: “If [voluntary compliance] is unsuccessful and the situation is sufficiently risky as to warrant closure of an establishment or ending a gathering, the city would pursue any legal remedy, including an emergency court order.”

Bloomington city council resolution

Bloomington’s city council had a resolution on its agenda Wednesday night that expressed support for the county’s order and health regulation and the mayor’s order.

The council’s resolution also included a reminder that the council could itself enact “additional regulations needed to protect the health, safety, and welfare of city residents.” The council voted 9–0 to approve the resolution.

A couple of councilmembers acknowledged that some of the many emails they’d received were opposed to a requirement on face coverings.

Councilmember Susan Sandberg, who co-sponsored the council’s resolution with Isabel Piedmont-Smith, said, “This is one of many issues that we received a lot of very thoughtful comments from the public about, including a good number of emails that we all probably received from people saying, please don’t mandate wearing of masks.”

Sandberg added, “But I will have to say the vast majority of people were very eager for the city of Bloomington to join with the county’s efforts.”

Piedmont-Smith said, “Some of [the emails] have asked us not to pass a requirement for the wearing of masks. And I will echo what a previous colleague also said, and say this is the cost of being a member of society—that I wear a mask to protect you, and you have to wear a mask to protect me.”

Piedmont-Smith added, “If you don’t mind that social contract, then maybe you need to go and, you know, live in the woods have not had any contact with anybody.”

Responding to a question from city council president Steve Volan, Hamilton spoke about likely future requests from the administration to the city council in connection with COVID-19. Those requests would likely not be to enact health regulations, but rather approve appropriations, Hamilton said.

Such an appropriation ordinance, in the amount of about $2 million, was introduced at first reading on Wednesday night.

COVID-19 by the numbers on July 22, 2020