Mayor Thomas Bernard explains the enforcement order to the Board of Health on Thursday over the Zoom digital platform.
NORTH ADAMS, Mass. — The Board of Health on Thursday refused to authorize the mayor's emergency order and enforcement against Crane Stationery by failing to vote on the matter.
Board members Kevin Lamb, acting as chairman, and October Cellana spent 90 minutes debating the board's authority over what they saw as determining essential versus nonessential work before Lamb motioned for a vote — and Cellana declined to second.
"My biggest concern is that ... I don't have the information or the knowledge to make such a decision and I don't want to utilize whatever power I have inappropriately," Cellana said before the motion was made.
"The motion doesn't carry," said Lamb. "That ends the discussion of the emergency order."
Mayor Thomas Bernard repeatedly told the board during the meeting that the enforcement order was drafted by the city's legal counsel and that the city had the authority to impose fines or issue cease-and-desist orders. He showed the board the email from attorney Gregg Cote of KP Law stating the law it was based on and the need for Board of Health ratification.
"I believe that this is an issue of health and safety for the community," he said, adding, "there's a direct link between essential work and health and safety, which is to say if Crane is working on a essential business, and only essential business, they will be in the facility less time, which reduces the amount of employee contact and reduces the risk.
"I have heard from employees, and I have heard from Crane's customers, and the message from both of those groups is clear that the work that Crane is doing, and the work that Crane is advocating to do, much of it is nonessential."
Afterward, the mayor was "deeply disappointed" in the board's lack of action to ratify a both his emergency order on May 3 and the enforcement order May 10 that he said would protect Crane's employees during the novel coronavirus pandemic
"While I have grave concerns about the manner in which in which the item before the board was resolved — essentially giving the company a pass by refusing to take action on a matter where the city's authority to act was clearly presented and acknowledged by the board — I continue have the utmost respect for our volunteer boards and commissions and their role in city government," he said.
The Health Department would continue to work with Crane to ensure employees' safety, as was done earlier in response to a worker's concerns, Bernard said, adding he was appreciative of the company's efforts in that regard, and that he still wanted to clarify Crane's communications on its future in North Adams.
The city and the printing company have been at odds for two weeks after Crane notified its employees it would reopen for business at its two buildings in the Hardman Industrial Park on Curran Highway because it received a federal Payroll Protection Program loan of $2 million. There was further confusion in that Crane's written communications to employees and the city indicated it would cease operations after September but officials were also saying a small workforce would continue.
Bernard had ordered Crane on May 3 to comply with several criteria for reopening, including how it would assure the city that nonessential work as determined by the state Department of Labor Standards was not being done. Gov. Charlie Baker had ordered nonessential businesses shuttered in March to help contain the spread of the highly contagious COVID-19.
Crane submitted a plan for keeping its workforce safe during the pandemic — including frequent breaks, cleaning of stations, and staggered schedules — and allowed an inspection but balked at complying with the order to inform the city how it would determine only nonessential work was being done. Company officials claim the mayor is overstepping his authority by singling Crane out and trying to violate their customers' privacy. The mayor said it was incumbent on the company to come up with a way to meet the criteria and protect its customers.
"We have worked in good faith with the mayor and local health officials, including demonstrating the extensive safety precautions we have put in place and which the Mayor publicly applauded," said Thomas O'Connor, CEO of Mohawk Fine Papers, in a statement last Friday. "Our employees, customers, and partners want Crane's operations to continue and the mayor is intent on stopping that from happening."
The company was told it would be fined $1,000 a day for failing to comply, which was when the mayor asked the Board of Health to ratify the enforcement order.
The main issue for the board was how the "nonessential work" figured into its authority. The two board members — Chairman John Meaney Jr. removed himself entirely from discussion because of a conflict — turned to the findings of a representative of the state Department of Labor Standards that found Crane could be qualified in some cases as essential because it was providing paper to essential services in the medical, legal and energy fields.
The letter from DLS encouraged but did not require Crane to stop all nonessential work. "However, like the big box stores that are allowed to sell both essential and nonessential products, the DLS does not issue cease and desist orders to close businesses if they provide both essential and nonessential products or services," the letter stated.
"I get the mayor's perspective on this, that there's a larger issue at play," said Health Inspector Michael Moore. "But that's strictly from the Health Department's view that's not a Health Department thing."
Cellana agreed. "If the state felt that way I don't understand where the city's coming from," she said, and asking how this fit with stores that are selling nonessential goods.
Bernard didn't think big box retailers were comparable to producing nonessential items in a factory. "It we're talking about printing Christmas cards or things like that, it is not essential at this time," he said.
Building Inspector William Meranti had the opposite take: The city has a legal opinion in hand saying it is justified in asking Crane to prove it's only doing essential work.
"We've already determined that we have the right to ask for more stringent requirements than the state orders. We've done so, and they refuse to comply," he said. "They could explain to us what they're doing and go about their business. They have not done that though."
The mayor said the Board of Health is the agency for enforcing the components of his order because it's consistent with the governor's order.
"I appreciate the line you're trying to walk and I appreciate the line that the health inspector is trying to walk but I really do truly see the essential/nonessential issue as a health and safety issue," he said.
"I've let Crane know that I'm going to recommend the assessment of fines for the period of this week where they have not been in compliance. I am extremely reluctant to go to the level of closing down the company, but within the terms of the order, within the terms of the law, we have the right to do that."
Lamb asked if Cellana would be more comfortable if there was a public hearing or waiting until the mayor could give them some of the concerns of employees that he had received.
"We are hearing just one side here, it's true. But the failure to act in in good faith to provide the information as required by the order, I feel as though that this board should be looking at upholding it," Lamb said.
Cellana, however, countered that the governor may begin lifting restrictions as soon as Monday, making the order moot. The mayor said he didn't think the message should be they won't hold the company to account for the past week because things might change next week.
"The opinion is that the order was correct. And now we either say that we have the right to do that or we don't, and the authority of the city is meaningless," Bernard said, concerned that a precedent would be set for other businesses.
In other business, Meaney returned and the board heard the health inspector's report, which included the closing of the BMX park; the ordered closure of Jeepers Creepers on Eagle Street as a nonessential business because it was doing curbside pickup; and the successful conversations with Walmart on reducing its density far beyond the state's recommendations.
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