The Sun has learned that a formal complaint leveled against the Sierra County Commissioners for failing to comply with the state’s mask mandate at an indoor public meeting has been submitted to the state and to county government by Winston resident Arla Ertz.
The Sun’s investigation into how Ertz’s complaints were handled reveals a laxity of enforcement of this public health emergency order, issued by the New Mexico Department of Health at the direction of Governor Michelle Lujan Grisham. Even though all state agencies and departments have been authorized by the DOH to “take all appropriate steps to ensure compliance,” the Sun searched in vain for a state official who could even confirm receipt of Ertz’s complaints, let alone substantiate what actions had been taken in response.
Countless scientific studies confirm the importance of face masks in protecting against the spread of COVID-19, especially in unvaccinated populations. (See a nature.com roundup, “What the science says about lifting mask mandates,” here.) Sierra County’s vaccination rate falls far below that of the state as a whole. According to the CDC, as of Sept. 28, 52.2 percent of all eligible Sierra Countians were fully vaccinated. In the state as a whole, the comparable figure was 73.8 percent. For the seven days preceding Sept. 28, Sierra was the only county in New Mexico whose rate of community transmission was ranked by the CDC as “high.”
When the more contagious Delta variant of COVID-19 began to surge throughout New Mexico in July, Governor Lujan Grisham once again asked residents to mask up. First taking effect for a month on Aug. 20, and extended for another month on Sept. 15, the order requires that all individuals ages two and older “shall wear a mask or multilayer cloth face covering in all indoor public settings except when eating and drinking.”
The DOH, New Mexico Department of Public Safety and the New Mexico Department of Homeland Security and Emergency Management are specifically named in the original order as having enforcement authority. The extension order provides that “[a]ny and all officials authorized by the Department of Health may force this order by issuing a citation of violation, which may result in civil and administrative penalties of $5,000 for each violation.”
The New Mexico.gov website page on which incidents of noncompliance with any COVID-related public health orders can be reported advises that complainants may also “contact your local police or sheriff’s departments on their non-emergency phone lines.”
A DOCUMENTED VIOLATION
On Wednesday, Aug. 25, five days after enactment of the mask mandate, Arla Ertz and her partner arrived at the Winston Community Center to attend a county-sponsored meeting to solicit public input on priority capital improvement projects. Sierra County Commissioners Jim Paxon and Hank Hopkins, Sierra County Manager Charlene Webb and two county employees—the road director and the human resources/administrative services director—were in the meeting room, Webb later confirmed. Ertz and her partner were astounded to discover they were the “only people wearing masks!” she stated in a letter of complaint emailed to Webb on Sept. 1, a copy of which Ertz provided the Sun. “Not a single other attendee, nor you or any of the Commissioners were wearing masks at any time during the meeting. This is outrageous, especially given that the gathering was an official County meeting.”
Ertz’s letter concluded: “I implore you to follow the COVID safety mandates set forth by the State of New Mexico from here on out.”
A day earlier, on Aug. 31, Ertz had used the state’s online COVID-related complaint form to report the “flagrant disregard and intentional flouting” of the mask mandate by Sierra County officials at the WCC meeting. She emailed the identical complaint to email@example.com—an address to be used as an alternative submission method on the complaint form page. Ertz provided the Sun with a copy of the emailed complaint. There is “no excuse for holding an official meeting without masking indoors,” it asserted. “Please address this issue ASAP.”
As Ertz soon discovered, the system set up by the state for responding to complaints about mask violations was not timely. Nor has it proved to be reliable, transparent or effective. A month after its filing, Ertz’s complaint to the state has either fallen through the cracks or been ignored. Sierra County government officials, who do not consistently comply with the mask mandate themselves, have disavowed responsibility for ensuring compliance. So did local and county law enforcement.
SIERRA COUNTY RESPONSE
Ertz received a written response from County Manager Webb within a week’s time on Sept. 8. Though prompt, Webb’s reply was “very unsatisfactory,” Ertz told the Sun. It failed to “address her request [that the commissioners] . . . wear masks [at indoor public meetings] as mandated.” Webb advised Ertz that the county did not have the authority to enforce the mandate and concluded by telling Ertz that she and her partner were “welcomed” to wear face masks.
“My partner and I weren’t merely ‘welcomed’ to wear masks at the indoor meeting, we’re required by law to do so!” Ertz said. Ertz also reiterated that she had not requested the county to enforce the mandate, merely to abide by it.
The Sun asked Sierra County Commissioners Paxon, Hopkins and Travis Day via email to comment on whether Ertz’s complaint was justified and, if so, to explain their reasons for not wearing masks. Only Commissioner Day, who noted that he had not been present at the WCC meeting, responded.
“We are not the mask police,” Day said in a Sept. 21 phone interview. The commissioners treat everyone the same, whether they are masked or not, he elaborated. The county was nonetheless doing everything required to ensure the public’s safety, including sanitizing county buildings and posting reminders to wear a mask at their entrances.
The Sun asked Day whether, in light of his leadership role in the county, he had a responsibility to set a personal example by wearing a mask at the commission’s regular monthly meetings, which the public can attend both in person and virtually. Day replied that he finds masks “disruptive,” as he likes to be able to drink water during meetings. Even so, he insisted that he and his fellow commissioners did their best to comply with the mandate. “You can see that we had them part of the August meeting,” he said. “For other meetings we had them you, just couldn’t see them if you were streaming the event.”
WHO ARE THE “MASK POLICE”?
On Sept. 9, the Sun contacted local and state law enforcement to determine their policies on the mask mandate. Sierra County Undersheriff David Elston told the Sun that the sheriff’s office is not enforcing the mask mandate. When asked what the sheriff’s office would do if someone were to call in with a complaint, Elston said they would direct the complainant to either the New Mexico State Police or the DOH.
Truth or Consequences Chief of Police Victor Rodriguez affirmed that the mask mandate is to be enforced by the DOH and the state police. “We want to encourage compliance,” Rodriguez said, but local law enforcement cannot enforce the mandate. He was happy to report that the T or C police have yet to receive any complaints about mask violations. If the department were to receive a complaint, officers would respond to the scene to be sure that disagreements did not escalate. If necessary, the police could remove the unmasked person from the premises for trespassing, Rodriguez stated.
Since both local law enforcement agencies stated that they would refer anyone with information on mandate violations to the NMSP and DOH, the Sun called the State Police’s listed phone number (1-575-382-2500) yesterday. A recorded message offers a menu of possible reasons for the call. Callers who select “non-emergency COVID-19 questions” are advised to either call the state’s coronavirus information hotline at 1-833-551-0518 or, to report noncompliance, email firstname.lastname@example.org.
The Sun waited until a dispatcher came on the line. The dispatcher said the State Police currently have no orders from the governor to enforce the mask mandate.
And calling the coronavirus information hotline? It advises those who wish to report violations of the public health order to email email@example.com or to contact their local police or sheriff.
THE DOH RESPONSE
The Sun attempted to reach Matt Bieber, DOH’s director of communications, by phone. Unable to leave a message because Bieber’s voice mail box was full, the Sun sent the communications director an email inquiring about what was being done to address Ertz’s complaints.
The email was answered by communication specialist Jim Walton. Walton told the Sun that the DOH was unaware of any complaint against the Sierra County Commission. He said that the DOH was aware of only two infractions of the overall public health order that had been reported since July 2021, when the governor (temporarily, as it turned out) lifted all COVID-19 restrictions. One of the violators received at $5,000 fine.
The Sun forwarded Ertz’s complaint directly to Bieber and Walton to find out why the DOH had no record of its filing. Neither has responded.
Trying to get to the bottom—or top—of the matter, the Sun contacted the office of DOH’s cabinet secretary yesterday and reached business administrator Elias Paredes. Paredes said that the COVID enforcement team in the governor’s office is supposed to partner with local law enforcement to ensure compliance. He offered to forward to the governor’s office the Sun’s inquiry about how noncompliance complaints are handled.
The Sun also tried to contact the governor’s office, placing a call in the hope of speaking with a representative of the COVID enforcement team. Instead, the call was transferred to . . . the coronavirus information hotline.