County legal professional’s authorized advisement towards masks ordinance stays unclear | COVID-19

County attorney's legal advisement against mask ordinance remains unclear | COVID-19

Greenwood County Council opted to adopt a mask resolution Tuesday rather than mandate the use of face coverings to slow the spread of COVID-19 through an emergency ordinance, but exactly what drove the deciding vote is unclear.

When it came to a vote, councilmen Mark Allison and Theo Lane referenced Greenwood County Attorney Elizabeth Taylor’s advise against passing a mask ordinance.

“The county attorney has spoken directly to us and told us that she doesn’t believe we have the authority to enact or enforce” a mask ordinance, Lane said at the special-called meeting. But he and others declined to share how that opinion was derived.

Allison also referred to Taylor’s advice. “When I get an email from her and she says ‘I remain very concerned about the legality, the enforcement of this effort, and I cannot recommend that you pass either,’” Allison said about two potential ordinances Tuesday, “I take that seriously.”

One proposed ordinance included fines as penalties, the other had an educational component.

At the beginning of the meeting, council voted unanimously to go behind closed doors to receive legal advice from Taylor.

“She was very specific last night in our executive session when she was giving legal advice,” Councilman Robbie Templeton said Wednesday. “She cited specific case law and cited different opinions.” Templeton did not share details of what case law or opinions were cited.

Templeton said the reason she didn’t state her objections during the open part of the meeting was to not give someone the basis for a legal challenge if the ordinance had passed.

“She would have given them a road map straight to the challenge,” Templeton said.

It remains unclear whether Taylor’s legal objections could have also led to a challenge of the emergency mask ordinance in the City of Greenwood. Previously, Greenwood City Council voted 5-2 to require masks to be worn in all retail and food service establishments within the city limits.

South Carolina Attorney General Alan Wilson issued a statement in late June addressing the legality of mask ordinances.

“A city can pass this type of ordinance,” Wilson said in the statement.

Wilson spokesman Robert Kittle said while Wilson referred to cities in his statement, the same legal reasoning could be applied to all local jurisdictions.

“Our state constitution and state laws have given cities the authority to pass these types of ordinances under the doctrine of home rule,” Wilson said. “The basic premise behind the home rule doctrine is to empower local governments (ie: towns, cities and counties) to effectively govern themselves without interference from state government.”

Wilson’s statement further gives limits to this power. If the General Assembly were to pass a statewide mask mandate, then the county would be preempted by state law. Also, he said an ordinance cannot be arbitrary. This means if there was no pandemic, then the mandating of masks would be arbitrary.

An ordinance cannot violate a person’s constitutional rights.

“Based on court precedent, simply requiring someone to wear a mask at the grocery store, or stop smoking in a restaurant, or be home before curfew does not constitute a violation of rights,” Wilson said.

The Index-Journal asked Taylor for the legal background on her opposition to the mask ordinance.

“The advice I gave my client is subject to both attorney/client privilege and the privilege associated with executive session,” Taylor said in an email.

“I’m not going into the details of legal advice that the county is given by the county attorney in executive session,” Greenwood County Manager Toby Chappell said.

Greenwood County Council voted 4-3 Tuesday to pass an emergency resolution that “strongly encourages” the use of face coverings inside the county. Lane, Allison, Templeton and Councilwoman Melissa Spencer voted in favor while Chairman Steve Brown, Vice Chairman Chuck Moates, and Councilwoman Edith Child voted against it. A motion to pass a mask ordinance that would include civil fines failed 3-4 with Brown, Moates and Childs voting in favor and Lane, Allison, Templeton and Spencer voting against.

An emergency ordinance would require a two-thirds vote of council for passage, requiring five members of council to vote in favor. A resolution only needs a simple majority for passage.