Brockway school sign (copy)

BROCKWAY – The Brockway Area School District’s regular board meeting was visited by around 40 parents and residents, and many of them were not satisfied with the district’s response to their requests.

However, the point of the meeting was not for the district to give a response. It was to give the parents a chance to speak their minds.

Edward and Ross Ferraro are partners in law firm Ferraro, Kruk, and Ferraro. That firm acts as the solicitors for the Brockway Area School District. They said that the school board allowed the residents to speak so they could get information and do their research.

“I know there was frustration from the folks who attended the meeting that there wasn’t a response or decision there, but the school board can’t give a response that night,” Ross Ferraro said. “We needed time to look at all their information so we could make an informed decision. We also needed time to research the law and take a look at the items that were cited by the public making their comments.”

The Ferraros did that research, looking into the different arguments made by the community and other cases going on throughout the state. Many parents said that there would be no liability for the school district choosing not to follow the order, but that is not the case.

“The school can definitely face some liability,” Ross Ferraro said. “There can be some penalties – civil or even criminal – for not following state orders.”

The school board members and the superintendent could also face personal liability for not following the order. That possibility impacts the liability insurance for those involved.

“If those protocols are not followed, and masks aren’t worn, from our reading of the order and other attorneys’ readings across the state, the school can be held liable,” Ross Ferraro said. “In follow up, school administrators and school board members can in fact be held personally liable. We contacted the liability company, and they said it was possible – if not probable – that they would exclude coverage under the insurance policy. If the district chose not to follow the mandate, this would be considered an expected or intended injury or damage that could occur if the district were not to follow the mandate. The insurance company basically said that operating a school in a way that violates the governor’s orders or the Department of Health’s orders would possibly impact the liability coverage for the school and board members.”

Edward Ferraro said that the action would fall under “Willful Misconduct,” which is a misdemeanor, and the insurance company could use that as a reason to not cover the district.

“Undoubtedly, the insurance company would say, ‘This is willful misconduct, you were directed to do that, there is no court decision saying you could not do that,’” he said. “A statute is a statute, a law is a law, an order is an order until we hear otherwise.”

The insurance company also sent a letter to the school district saying that the school district should comply with all federal, state, and local laws and ordinances in regard to mandates on COVID-19.

In a hypothetical situation, such as students developing medical issues from wearing a mask, it is safer for the school district to follow the mandate even if, as one parent implied at the school board meeting, parents would sue the school and not the state for those hypothetical conditions.

“They wouldn’t get anyplace because that’s where sovereign immunity steps in,” Edward Ferraro said. “Sovereign immunity says that if you’re doing your job and doing it right, you’re not liable. But again, if you do an intentional act that’s contrary to law and you know it’s contrary to law, sovereign immunity doesn’t apply.”

The Department of Education did also warn that failing to follow the mandate – including allowing a parent to sign off on an exemption without it being endorsed by a medical doctor or psychologist – is in violation of the order. The FAQ printout from the Department of Health specifically stated that sovereign immunity protections could be taken away if school districts violate the order.

Some residents at the meeting feel that the Department of Health did not have the authority to issue the order. Edward Ferraro pointed to the specific law that clearly said that the Department of Health does have that authority when there is a disease that is “subject to isolation, quarantine, or other control measure.”

“We don’t make the law,” Edward Ferraro said. “But there it is in black and white.”

“With the Department of Health issuing that order, it’s a legal order,” Ross Ferraro added. “The COVID cases were going back up, so that’s why they did it. The school district got that order, and after our review of the law, there was authority, and the school has to follow that mandate.”

There is also no difference between a secretary of health and an acting secretary of health. Even if an acting secretary issued an order, it still has the authority of the office behind it.

“They absolutely do have the authority,” Ross Ferraro said. “They may not have been elected, but when there’s an opening and someone is appointed, they absolutely have that authority.”

The state is where the answers lie, according to the Ferraros. Demanding answers from the school district is not going to work.

“Go to the people who set this up,” Edward Ferraro said. “We’re at the lower end, all the school districts. Most school districts are obeying it. We’re a democratic republic. We elected our officials, and they pass our laws. We’re bound by those laws because we elected them. Just because you don’t like something doesn’t mean you get to say you’re not going to do it. Go to the State Legislature and get them to change the law.”

There are some legal challenges happening elsewhere, and if the courts decide that the Department of Health’s mandate is invalid, the school district will change its direction. Superintendent Jeff Vizza said at the meeting that he wants to go back to the safety plan they had during the first week of school if the state mandate is relaxed or overturned. That plan said that masks were optional.

“The school board is trying to protect the students, faculty, staff – everyone who goes into that school every day,” Ross Ferraro said. “The point that’s lost in all of this is that we understand people want to make choices for themselves and their kids, but it’s affecting other people. From our perspective as attorneys, we can’t advise the school district not to enforce it.”

Edward Ferraro said as it stands now, the school district is going to follow the mandate.

“It’s an order until it isn’t,” he said.

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