Parents' group sues to remove Millcreek school directors over previous mask requirements

After nearly two years of dealing with high levels of COVID-19 cases, the Millcreek Township School Board made masks optional in schools starting on March 1.

The long-awaited move was far from enough for a group of upset parents in the Millcreek School District.

In a local example of the polarized atmosphere over masks and COVID-19 that continues to linger nationwide, a founder of a group called Erie County PA Parents Protecting Children is suing seven of the nine Millcreek school directors in Erie County Common Pleas Court, demanding that a judge remove them from office over their handling of the mask requirement.

The claims include that the school directors, in voting to approve masks for most of the pandemic, violated their oaths of office by — among other things — practicing medicine without a license and even committing child abuse.

The plaintiff, Millcreek resident Troy Prozan, is representing himself.

The school directors had "no business" requiring masks, Prozan said in an interview.

"They should have left them up to the parents."

Twenty-five other people signed on to support his petition for removal, according to court records.

One of the 25 is Lou Aliota, the former Millcreek school director who is involved in extended litigation with the school district over requests he made under the Right-to-Know Law.

School district: Board followed the law

The petition, filed Monday, includes a variety of arguments, many of them claiming that the Millcreek School Board violated the constitutional rights of students and parents by requiring masks to combat the spread of the coronavirus, even though the Millcreek School District for most of 2020 and 2021 was abiding by directives from the state Department of Health and the state Department of Education.

Prozan is suing the seven Millcreek School Board members under the section of the Pennsylvania School Code that allows for the removal of school directors for "neglect of duty."

The petition faces a number of challenges. One is sure to be that the Millcreek School Board, like school boards throughout Pennsylvania and the nation, were following the state and federal directives and recommendations that were in place at the time when the boards approved mask requirements as they tried to protect children and staff during a global pandemic.

In some instances, school districts who defied the state mask mandate risked getting sued and losing in federal court, as was the case with the Warren County School Board in U.S. District Court in Erie in October.

When the state's acting secretary of health, Alison Beam, signed a mask mandate for schools on Aug. 31, 2021, the state Health Department cautioned what defiance of the order could mean: "School officials who fail to adhere to the order could lose the protection of sovereign immunity and may personally face lawsuits from those who may be affected by any official's attempt to ignore the order."

In the case of Prozan's petition, the Millcreek School District appears ready to argue that the district abided by the legal requirements that were in effect when the board required masks.

"The Millcreek Township School District board and administration have always acted in accordance with the law to protect the health and safety of the children of the school district," the school district said in a statement to the Erie Times-News in response to the petition.

Warren case:Warren County School District paid winner's legal fees in mask case. Here's the amount

The district will also get a chance to make its case in court. A hearing had not been scheduled as of early Thursday afternoon.

"The Petition filed with the Court of Common Pleas has been referred to the solicitor’s office, who will prepare an appropriate response and defend the matter," the Millcreek School District also said in the statement.

'They broke the law'

Despite the school district's contention that it followed the laws as they existed at the time, Prozan's petition —which is 19 pages excluding exhibits — claims that the seven Millcreek school directors abrogated their responsibilities by abiding by the statewide mandate. The state Commonwealth Court and the state Supreme Court struck down the mandate in late 2021, with the Supreme Court ruling on Dec. 10.

In its 6-0 decision, the state Democrat-majority Supreme Court did not rule on whether Pennsylvania law authorizes school districts to require masks. The ruling said the state could not impose a mask mandate for schools without "a gubernatorial disaster emergency." The mandate was doomed, the court said, because the GOP-controlled General Assembly decided in June to end Democratic Gov. Tom Wolf's disaster declaration over COVID-19.

As it explained in its 58-page opinion in the case, issued on Dec. 23, the state Supreme Court focused on regulatory procedures in striking down the mandate. Beam, the acting secretary of health, wrongfully "circumvented" the regulatory process when she issued the mask order in August, according to the opinion, by Justice David Wecht.

However, the Supreme Court in the opinion did not discount the sweep of the pandemic. And it did not question the use of masks to fight COVID-19.

According to the opinion: "This pandemic has affected every American — every human being — in some way. In that sense, at least, we are all united. And this Court is mindful that, for far too many, the pain and loss wrought by this dreadful virus is incalculable. We do not intend to diminish the weight of that anguish.

"Nor do we question the efficacy of masking as a means by which to curb the incidence and spread of aerosolized communicable diseases like COVID-19. But it is not our prerogative to substitute our views for those of the policy-making branches of our Commonwealth's government, especially on an issue as fraught with uncertainty as how best to respond to an evolving public health emergency.

"We leave that solemn duty to the people’s elected representatives and their lawful designees. Our role in this case is limited to deciding whether it was within the Acting Secretary of Health's authority under existing laws and regulations to issue a statewide school mask mandate. Respectfully, we conclude that it was not."

Due to the state Supreme Court decision and the decline in COVID-19 cases, the Millcreek School Board on Feb. 28 voted to make masks optional starting March 1. Prozan said the board should have gotten rid of the mask requirement immediately after the Supreme Court ruling, and he said he and other parents are upset that the district on Feb. 28 also voted to require masks in schools again where the incidence of COVID-19 cases is above 2%.

Mandates lifted:New COVID-19 metrics help end mask mandates at Erie, Millcreek schools

Prozan also said the Millcreek School District "did not have to put masking in as a requirement" at any time.

"They broke the law for almost full two years," said Prozan, 45. "At the end of the day, there are consequences for the things that you do that are illegal."

Prozan said his disagreement over masks led him to pull his second-grade son out of the Millcreek School District and enroll him in an online charter school.

Seven school directors targeted

The petition seeks the removal of Millcreek School Board President Gary Winschel, Vice President Michael Lindner and board members Janine McClintic, Jason Dean, Shirley Winschel, Janis Filbeck and Sallie Newsham. Prozan said he is not seeking the removal of School Director Michael Kobylka because he supported optional masking. The ninth school director, Kim Lupichuk, was appointed this year and is also not included in the removal request.

Prozan said the school directors could be voted out when they are up for election, but said he hopes his petition "is the first step to get them out of office."

Prozan's group, Erie County PA Parents Protecting Children, is also asking for the resignations of Millcreek schools Superintendent Ian Roberts and the school district's solicitor, Timothy Sennett, the group said.

Statewide issue:Pa. school boards bearing brunt of anti-mask parents' anger. Hear what the sides say

The group describes itself as "a grassroots coalition pf parents, grandparents, residents and taxpayers who believe in the freedom of choice," according to a news release the group issued on the removal petition. "We understand our rights are not granted from elected officials but are natural/God-given."

The seven Millcreek school directors, Prozan's petition claims, "implemented mandatory disease control measures to healthy students and staff without proper authority." The petition claims that state law holds that "disease control measures only apply to a 'person or an animal with a communicable disease or infection,' not healthy, asymptomatic individuals."

The petition claims that protective masks are "unapproved medical devices," and that, as such, the Millcreek School Board and the district erred by failing to get written informed consent from parents and teachers for the wearing of the masks.

The School Board, the petition claims, "failed to secure informed consent which is considered medical battery in Pennsylvania and intentional medical battery against a child is child abuse."

Discussions in Millcreek:Debate continues as Millcreek School Board considers easing mask mandate for most on March 1

The loser might have to pay

The petition cites the federal and state constitutions, claiming that the School Board "has willfully deprived students, staff and MTSD community members rights and privileges protected by the Constitution and or the laws of the United States. 'The Board' has acted beyond the bounds of their official authority, while purporting to act in the performance of his/her official duties."

Regarding the Pennsylvania constitution, Prozan lists a number of rights he claims the mask requirement violated. Among them is the state constitution's guarantee that "the people have a right to clean air."

Prozan is claiming the mask requirement violated that right "by forcing students, staff and community members to breathe air that consists of unhealthy levels of carbon dioxide, oxygen and bacteria."

Though he filed the petition under his name, Prozan said he got help from a lawyer and expects that lawyer "to represent us when the time comes." He said he is saving money, for now, by filing the petition himself.

The Millcreek School District will have to spend time and money defending Prozan's petition, but he could face financial repercussions if he loses. The section of the Pennsylvania School Code that he is suing under allows a judge to "impose the cost of such proceedings upon the petitioners" or the school directors or school district.

Prozan said he is aware of the possibility that he could have to pay financially if he comes up short in court.

"That doesn't concern me," he said. "What concerns me is getting the right people on the board."

No matter how the case turns out, someone is going to have to cover the financial costs.

"The way I see it," Prozan said of the seven Millcreek school directors, "they either resign or spend taxpayer dollars defending it."

Contact Ed Palattella at epalattella@timesnews.com. Follow him on Twitter @ETNpalattella.

This article originally appeared on Erie Times-News: Masks in Millcreek schools: Parents' group sues to oust school directors