The Montezuma-Cortez School District Re-1 Board of Education voted Tuesday to reverse its decision to start a mask mandate for students and affirmed its decision to deny Superintendent Risha VanderWey the authority to shift schools into remote learning.

In Friday morning’s emergency meeting, the board voted to mandate masks for students for two weeks and to allow board members to vote on a remote learning order by phone.

The board held another emergency meeting Tuesday afternoon after School Board President Sherri Wright sought legal counsel amid claims that the board had acted illegally Friday by allowing a telephone vote.

“They told me that what we did was in the gray area,” she said.

On Friday, the board voted to deny VanderWey the authority to initiate school closures without their approval. Instead, they decided that if VanderWey felt it necessary to close a school, she would call Wright, who would then call each board member for an immediate vote.

“It would not be giving the community the feeling of transparency,” Wright said.

Action items on Tuesday’s agenda included another vote to give VanderWey the authority to close schools and a decision about masking students “during high COVID infection incidences.”

The board was advised to make a more black-and-white decision. Consequently, the board voted to not give VanderWey the authority to move schools into remote learning and considered voting again if necessary at future board meetings.

“At this point I want to tell the community ‘Thank you for keeping me on my toes,’” Wright said.

The board ultimately voted 3-2 Tuesday to not grant VanderWey the authority to close schools. Stacey Hall and Cody Wells voted yes, and Tammy Hooten, Sheri Noyes and Wright voted against the action item.

Last week, The Journal raised the question whether a telephone vote – conducted out of public view – would be legal under Colorado’s Sunshine Law for open government meetings.

“My view is that the meeting has to be noticed and open to the public,” said Steven Zansberg, attorney and president of the Colorado Freedom of Information Coalition.

He said that the board’s original proposal to conduct phone votes was unlawful, and that the public was entitled to know how each member voted, although there are no provisions under the law that state the public must be able to participate. He said members of the public could challenge the “informal action.”

“They run the risk of the vote being overturned,” he said.

Jeffrey Roberts, executive director for the Colorado Freedom of Information Coalition, held the opinion that a telephone vote might circumvent the law, but was not necessarily illegal. However, Zansberg said an “intentional evasion” of the quorum law would likely not be upheld in court.

A telephone vote could be considered a “serial meeting,” Roberts said. Colorado has not ruled against serial meetings, although other states have.

“That gets around the quorum of open meetings law, but that doesn’t make it right,” he said.

He added that a privately conducted telephone vote was unnecessary in today’s era of technology, because tools such as Zoom can be utilized to broadcast meetings.

“It’s not 1980,” he said.

Colorado’s open meeting laws dictate that more than two board members may not meet in private to discuss public board decisions — whether in person, by telephone, electronically or by any other means of communication.

VanderWey originally approached the board for permission to close schools in an emergency situation last week, with workforce shortages and COVID-19 as factors in the decision.

“To be perfectly honest, I don’t have to ask the board’s permission to close a school,” VanderWey said. “But I would rather ask before I close schools because of a workforce issue and/or because of an uptake in the coronavirus.”

She was referring to her ability to make such a decision in an emergency situation — like the shooting near Kemper Elementary School that prompted student evacuation.

“They said that if we hired her we should trust her, but they said it also goes along the same rate as snow days,” Wright said, referring to her conversation seeking legal counsel.

The discussions about remote learning and student masking come amid a staff shortage and a recent increase of the coronavirus among staff, students and school families.

As of Friday, the district had 22 positive cases in students and five positive staff cases. Teachers are out for a multitude of reasons — from cancer to seeing family to having their own kids quarantined, VanderWey said Friday.

On Tuesday, 62 teachers were absent from the classroom, and more than 20 were without substitutes.

On Friday, 45 teachers were out, with 16 not having class coverage.

As of Friday morning, 156 students were quarantined.

Five additional students were quarantined this week after a family member tested positive, said Assistant Superintendent Lis Richard. On Tuesday, no new staff cases had been reported since Friday.

Richard said the district has seen more student-to-student and teacher-to-student virus transmissions.

“We had a real upsurge in the last three weeks,” she said.

VanderWey added that there was a rise in employee-to-employee transmissions as well.

“It’s a very interesting year. I’ve never seen so many resignations,” VanderWey said. “We are at a critical point where every day I’m worried about it.”

Principals and district office staff are stepping in to cover classrooms, VanderWey said.

“What we’ve been doing is we’ve been grabbing anybody anywhere to get in these classrooms,” she said.

Her entire district office was sourced to cover classes Thursday, she said.

The district’s process of bringing in substitutes is done by paper, and is a “very, very slow process,” she said.

She said she received emails from parents concerned that their children would be left without supervision if schools moved to online learning.

VanderWey emphasized that remote learning would be a last resort option, and that she doesn’t want to put pressure on parents.

She briefly discussed other options, such as potentially shifting students to other schools temporarily instead of implementing remote learning.

Nevertheless, that would take significant planning to bring to fruition, she said, and she still sought the current authority to initiate remote learning as need.

“It’s not something that I would abuse,” she said. “And that does take a little bit of trust on your (the board’s) behalf because I know you all have just met me.”

She said if she had enough forewarning in an emergency situation, she would hold an emergency board meeting.

“I’ve seen what digital learning does to kids and families,” VanderWey said. “I truly believe in in-person learning.”

She said that her request was not only an effort to be transparent with the board, but with the community as well.

Online learning could be used as a temporary fix to staff shortages — although not ideal, she said.

“You don’t need five teachers teaching the same content if you’re on digital learning, so it just opens up the oversight of kids,” she said.

Noyes said she thought removing the mask mandate would increase the number of parents and community members willing to fill in workforce gaps.

Wright interjected, requesting that the board address each action item individually.

“I’m just trying to make sure that we stay legal because we’re being monitored very carefully,” she said.

Hooten proposed voting on the matter again in the October or November board meeting.

“I really want to get back to talking about education and kids learning and teachers teaching because that’s what I do best,” VanderWey said.

The board then voted on mandatory masking. If approved, it would also apply to students playing indoor sports.

If all students wore masks, the district would no longer recommend quarantine for close contacts of those testing positive.

The district submits outbreak information to the Montezuma County Health Department. The health department informs the district how to proceed with quarantines, Richard said.

Ultimately, the board unanimously agreed that they don’t believe masks are effective in preventing the spread of COVID-19.

However, Hall voted to approve mandatory masking, while Hooten, Noyes, Wells and Wright voted against it.