Businesses, diners weigh indoor dining risks
Most states offer greater transparency than Colorado in proceedings against judges, clerks
The morning of Feb. 6, as restaurants across Colorado opened their doors to more patrons, The Wooden Spoon in Denver’s Highland neighborhood was staying its coronavirus course. Customers lined up out front to place to-go orders, or they went directly around back to pick up takeout. Since last March, Wooden Spoon owner Jeanette Burgett and her husband and business partner Jason have been running their 10year-old cafe strictly to-go. They also live with their young daughter and Jeanette’s mother at home, so the Burgetts aren’t taking any chances with the virus.
They’re not even dining indoors at other restaurants.
“Until the numbers are way down, however this is going to
play out, we feel like we’ll just keep going with takeout,” Burgett said, adding, “Like anyone, we don’t know what’s true and what’s not, what works and what doesn’t, but we’re erring on the side of safety.”
Comfort levels
Colorado business owners and customers are figuring out their own comfort levels after another relaxation of public health restrictions on indoor spaces, including restaurants, took effect Feb. 6. Following a steady decline in new COVID-19 cases and hospitalizations in recent months, restaurants in most Colorado counties can now seat diners indoors at up to 50% capacity. They had been operating at 25% capacity after the state reopened indoor dining last month following a six-week closure in those counties.
Other parts of the country, including Michigan and New York City, have either already opened indoor dining or will do so in the coming days. But last week, the new director of the Centers for Disease Control and Prevention said she “discourages” states from easing public health guidelines.
“We have yet to control this pandemic,” Dr. Rochelle Walensky said during a media briefing Monday. “We still have this emergence threat of variants.”
Public health experts and scientists say indoor spaces, including restaurants, remain one of the riskiest settings for transmission of the novel coronavirus — especially with the growing understanding of how the virus spreads in the air and the looming threat of new and highly contagious variants.
“I think that our current prevalence level (of the virus) is dangerously high,” said Andrea Buchwald, an epidemiologist specializing in vector-borne diseases and the primary modeler for Gov. Jared Polis’ COVID-19 modeling team. “We are nowhere near the (low) prevalence that we were at in the summer. I think now is still definitely a time when you should
be very cautious of interacting with people outside your home and doing indoor activities.”
The state’s move to increase indoor restaurant capacity comes as Colorado is emerging from a deadly winter peak in the pandemic. While cases and hospitalizations have dropped in recent months, on average the case count is about double the number the state saw during a previous peak in July and closer to what models have suggested was the actual number of cases in April when many infections went undetected because of limited testing.
And state public health officials last week said the rate at which coronavirus cases and hospitalizations are falling is starting to level out.
State leaders said they eased restrictions — changes that coincided with further adjustments to Colorado’s color-coded dial system — because of the falling case and hospitalization numbers, and because modeling projections show the state’s hospitals aren’t likely to be overwhelmed.
“Statewide the frequency of infection continues to drop and COVID-19 rates have been going down in the vast majority of regions,” the state health department said in a statement. “Modeling projections indicate it is unlikely we will exceed our health care capacity in the upcoming months.”
Indoor settings considered high-risk spaces
When he announced the state’s plan to increase indoor business capacities, Polis said that going to a restaurant with members of a person’s household is a “low to low-medium risk activity,” and that the risk increases when people dine with those they don’t live with.
“A restaurant itself inherently is not a high-risk environment,” he said during a news briefing on Feb. 5. “It’s what you do there that can put yourself at greater risk.”
Sonia Riggs, president and CEO of the Colorado Restaurant Association, put the pressure to reopen restaurants now more bluntly: “If we don’t start seeing capacity increase change dramatically over the next few months, we will see more restaurants closing,” she recently told The Denver Post. “True recovery won’t begin for this industry until dining capacity is at 100%.”
But public health experts and scientists — including members of the governor’s modeling team — said that dining indoors carries a high risk because of how the novel coronavirus spreads and the fact that people aren’t wearing masks while eating. They said the safest way to support a restaurant is still through takeout.
Studies have linked indoor spaces, including restaurants, to the spread of the novel coronavirus, with one published by the CDC finding that adults infected with the virus were about twice as likely to have dined at a restaurant. The report noted that air circulation in restaurants has been found to affect transmission of the virus despite measures that keep tables spaced apart and that masks are less likely to be worn while people are eating and drinking.
A study by researchers in China that looked at outbreaks also found that indoor locations are the most common venues in which the virus is transmitted and that in some settings, including restaurants, droplets and airborne particles that can spread the virus remain in the air for longer periods.
Households that stick together when dining out could still be exposed to the restaurant’s employees and other patrons. And it’s not just patrons that risk exposure; employees are more likely to be in a restaurant for longer periods and will come in repeated contact with
people not wearing masks.
“The people I’m most concerned about are the workers of the restaurants,” said Beth Carlton, an associate professor of environmental and occupational health at Colorado School of Public Health.
There have been 281 coronavirus outbreaks at restaurants, bars and breweries in Colorado since the pandemic began, leading to a total of 1,513 cases. A majority of those cases — 1,450 — were employees who were infected with the novel coronavirus.
Customers only reflect a small portion of the cases identified in restaurants because the state is not doing the level of contact tracing that focuses on where individuals become infected, said Dr. Jon Samet, dean at the School of Public Health.
“This idea that there’s no evidence gets to the problem of generating evidence,” said Samet, who co-authored a Denver Post op-ed with Carlton in December that argued restaurants should remain closed to indoor dining.
Restaurants do not represent a major source of the outbreaks that have occurred across the state because they have been under restrictions that have severely limited how many people are in their buildings during the pandemic, said Glen Mays, a professor of health policy at the School of Public Health.
As of Wednesday, 40 of the outbreaks were still active, according to the state Department of Public Health and Environment.
“The governor has been clear with the public from the beginning of this pandemic that there is risk in everything you do — he has never said there is no risk with indoor dining and has emphasized that any activity outside of your own home poses a reasonable level of risk,” said Conor Cahill, spokesman for the governor’s office, in an email.
Waitstaff and cooks moved up line for vaccines
As of this month, food service workers such as waitstaff and cooks have been moved up in line to the “frontline essential” category for vaccination, which should begin in March.
That time line is one reason that restaurateur Justin Anthony is waiting to reopen one of his bars, American Bonded, until next month.
“We were timing it both with the vaccination time line as well as a time of year when the weather is usually nice enough for us to take full advantage of outdoor seating,” Anthony said. “There also is the business consideration of giving our employees the ability to take full advantage of the additional money through (Pandemic Unemployment Assistance) that ends in March.”
Initially, the novel coronavirus was just thought to spread via respiratory droplets, which are exhaled but fall to the ground within about a six-foot distance.
For months, scientists have said there is growing evidence that the virus can linger in the air via small particles called aerosols. But health agencies, such as the CDC and World Health Organization, have been slow to acknowledge the prevalence of airborne transmission.
The CDC says that most coronavirus infections are occurring via close contact, but that there is airborne transmission under certain circumstances, including in enclosed spaces and when rooms have poor ventilation.
Last week, the agency updated its mask guidelines, recommending the doubling-up of masks or fitting them tighter, which protects against the virus traveling via small particles in the air.
“They seem to be scared to death of calling it airborne,” said Jose-Luis Jimenez, a professor of chemistry at the University of Colorado Boulder and an expert in aerosols.
To reduce transmission, Jimenez said, the latest guidelines tell us to go outdoors, spend less time indoors with people outside our own households and wear masks when interacting with others.
As for dining inside a restaurant: “It’s the opposite” he said. “You spend a lot of time there, talking without a mask, sharing the same air.”
To compare the situation of dining indoors to an early superspreader event, which Jimenez has studied, he explained: “A choir (singing) without masks is worse. But restaurants are up there.”
As diners eat and talk in restaurants — with their masks off — aerosols move from mouths into the air like smoke from a cigarette, Jimenez explained. Another diner who is at least six feet away won’t breathe in that air at first, but depending on the ventilation of the space, they could eventually.
“The issue with aerosols is that they don’t respond to gravity,” said Yves Dubief, associate professor in the mechanical engineering department at the University of Vermont. “We cannot visualize them and we don’t even feel the airflow that is transporting them.”
It comes down to air circulation
Because of their role in the economy, the state has sought ways to reopen restaurants to indoor dining even when their counties were at stricter restrictions that would normally prohibit it.
This led to the creation of the 5 Star State Certification Program, which lets restaurants operate at higher capacity if they meet certain guidelines such as improving their ventilation.
But some restaurateurs have chosen to keep their businesses closed this winter for health as well as economic reasons.
“Our places are so small that all of the changes don’t make sense for us to go through … 25%, 50%, 5 Star program, greenhouses, etc. …,” said Dana Rodriguez, who coowns two temporarily shuttered restaurants, Work & Class and Super Mega Bien. “Closing and opening is the worst for a small business.”
In order to open to indoor dining under the state’s current guidelines, restaurants are required to keep their tables six feet apart.
They only have to separate them further — at least 10 feet — if their county is at Level Red on the state’s dial and they have 5 Star Certification.
But a study published in the Journal of Korean Medical Science found that even those distances may not be far enough to avoid transmission when air conditioning is involved.
In that case, which occurred in South Korea, it was discovered that a person was infected when tables were spaced about 21 feet apart.
“(Restaurants) are high-risk settings for transmission,” Mays said. “But they’re also critical parts of the economy and account for a lot of jobs and economic activity.”
In order to help restaurants open indoors, a focus on proper ventilation could work to lower the risk of transmission by pushing indoor air outside, Dubief said. It’s an effort that becomes harder now in the winter, as restaurants and other businesses are trying to keep their buildings warm, with continually recycled air.
But it’s not impossible.
“It really comes down to questions of circulation, maskedness,” Buchwald said. “I think there is evidence that with appropriate levels of circulation … it could be safe (to dine indoors).”
As many as 328 days away
The biggest concern among public health officials, they say, is uncertainty about the new variants of the coronavirus, which are more contagious, and how they will affect transmission of the virus.
Colorado already has confirmed the presence of two new variants that were found in the United Kingdom and California.
The state does not yet believe the variants are widespread in Colorado, but it’s also unclear just
how much they are spreading here because of limited testing capabilities.
The CDC also has warned that the U.K. variant, known as B.1.1.7, could become the dominant strain in the United States by March.
Dr. Rachel Herlihy, the state epidemiologist, last week said that if people continue to wear masks and limit close contact with people outside their household, then Colorado may “actually see very little impact from the variants.”
“It is troubling,” Mays said of the uncertainty around the variants.
“That’s a real possibility that we could see another wave of resurgence of cases driven by these variants and the fact that they are much more transmissible.”
The vaccines that the state is now administering to Coloradans appear to at least partially protect against the variants, although the vaccine rollout has been slow because of limited supply of the doses.
At current vaccination levels it would take 328 days to reach herd immunity, Buchwald said last week.
“With hopeful strategies that involve ramping up (vaccinations), we could anticipate getting to a comfortably low prevalence around September,” she said. “That is sort of under the assumption that there isn’t another huge peak as a result of (relaxing behaviors), and this also doesn’t include a major outbreak of another variant.”
In the case of another spike because of a new variant, experts say Coloradans should be prepared for another shutdown, or periods of loosening restrictions followed by a return to tightened restrictions, and so on, which leaves restaurants caught in the midst.
“I believe that doing things right is better and don’t want to be part of the rest,” Rodriguez said finally of keeping her restaurants closed for now.
“We will reopen on May 4 when it’s better weather with open tents. That way we all can rest and give the best of us in hospitality (rather) than just keep trying and wasting money and pretending we are all OK these days.”
Like Rodriguez, Burgett, of The Wooden Spoon, feels lucky that her café can continue to operate for as long as necessary without a single customer stepping foot inside.
But she says she understands the impossibility for fellow small business operators, of weighing public health against economics.
“Because that’s health, too,” she said. “Our ability to live (make a living) is just as important.”
The three-minute video posted on the Florida Supreme Court’s website shows the moment a judge, dressed in her black robes, put her hands on the shoulders of a courthouse employee and briefly shook him.
The video, along with 62 documents that outline the judicial misconduct case against Circuit Judge Vegina T. Hawkins, became public record in July 2019 once the Florida Judicial Qualifications Commission began formal disciplinary proceedings against the judge. Hawkins lost her re-election bid in 2020, and the disciplinary case was dismissed. But as the case wound through the state’s formal disciplinary process, the public could follow along.
Florida is one of 26 states where confidentiality for a judge accused of misconduct ends once formal charges are filed by a disciplinary commission. Other states with similar practices include
California, Kansas and Washington. Another seven states make the cases public once the accused has a chance to respond to the allegations, and two more states allow the public to watch hearings but don’t reveal any details until then, according to the Center for Judicial Discipline at the National Center for State Courts.
But Colorado is one of 15 states where disciplinary cases against judges are secret until a recommendation for a public punishment is ordered. In most cases, however, Colorado judges are disciplined through informal proceedings that end with a private disciplinary decision.
“There’s no other state that is as dark as Colorado,” said Chris Forsyth, executive director of The Judicial Integrity Project, which pushes for judicial disciplinary reform in Colorado.
The state’s judicial disciplinary proceedings came under scrutiny last week after the Colorado Supreme Court released a previously secret memo that cited multiple examples of sexual misconduct and harassment by judges, allegations that reached the highest levels of the Colorado Judicial Department. The memo was released after a series of articles in The Denver Post about allegations a former human resources administrator threatened to tell everything she knew in exchange for a $2.5 million contract. The contract has been dissolved.
Complaints confidential
In Colorado, complaints against judges remain confidential until the Colorado Commission on Judicial Discipline recommends public discipline.
Twelve other states have similar laws, including New Mexico, Utah and Wyoming. Only three states — Delaware, Hawaii and North Carolina — keep discipline a secret until a court orders it to become public, according to the National Center for State Courts Center for Judicial Discipline.
Forsyth has pushed for years for change, saying judges are public servants, and their misdeeds deserve public scrutiny.
“There’s no other reason for this darkness other than to undermine the trust and confidence of judges in Colorado,” he said.
Transparency varies from state to state.
Some commissions such as Florida’s post documents as cases move through proceedings, some issue news releases about decisions and some issue orders along with board members’ opinions on why they determined discipline was warranted.
Nowhere in the United States can the public see a list of formal complaints against judges, said Cynthia Gray, director of the Center for Judicial Ethics at the National Center for State Courts.
“That would be true in every state,” Gray said. “You just can’t go in and look at them.”
But many states offer more information to the public than in Colorado.
In Arkansas, for example, the Judicial Discipline and Disability Commission published a news release in May announcing a judge had resigned and was barred from serving again after he was caught receiving sexual photographs — and asking for more — from a woman facing charges in his courtroom. In Colorado, if a judge resigned before a disciplinary decision, it’s likely the allegation never would become public.
In Minnesota, a judge in March was publicly reprimanded for failing to appropriately supervise a law clerk, approving inaccurate time cards and sending inappropriate email messages about attorneys arguing in her courtroom. Judicial reprimands in Colorado remain confidential.
The Colorado Supreme Court memo released last week listed specific examples of judicial misconduct, but it’s impossible to know if disciplinary action was instigated or whether anyone was at least reprimanded or censured.
A few of the instances discussed in the memo include:
• A judge sent a pornographic email over judicial email and still was promoted to a chief judge position
• A law clerk was given a release agreement to protect a court of appeals judge from harassment accusations during the Supreme Court selection process
• Another judge took off his shirt and rubbed his chest hair on a female employee and no action was taken.
None of those instances are available for review on the Colorado Commission on Judicial Discipline’s
website. That could mean those judges were considered for discipline and none was given. Or they were privately admonished, reprimanded or censured. Or the commission may never have received those cases for review.
William Campbell, executive director of the Colorado Commission on Judicial Discipline, said it would “verge on breaching confidentiality” if he confirmed whether any of those incidents came before the commission.
However, in a Friday news release, the commission said it had “reviewed its records spanning the last five years and has not been able to identify a referral from the State Court Administrator’s Office or the Office of the Chief Justice that appears to match the limited details reported publicly.”
The commission only investigates the cases it knows about and if no one complains to the commission, no case is considered. And no changes in law can fix a culture where formal complaints of misbehavior are not made.
Amending the Constitution
The memo’s contents captured the attention of the Colorado General Assembly with Senate President Leroy Garcia, D-Pueblo, and House Speaker Alec Garnett, D-Denver, calling for an investigation. Garcia also told The Post that legislators are considering holding hearings or forming committees to examine the situation.
But the legislature cannot single-handedly change how judicial discipline is handled.
In 1966, Colorado voters amended the state Constitution to create the judicial discipline commission and to establish rules on how it would function. So the secrecy is embedded in the state Constitution.
Campbell said when he first accepted the job leading the commission he met with a Supreme Court liaison who said, “Bill, you’ve got a confidential job that needs more transparency.”
Since Campbell was hired, the commission created a website where visitors can read annual reports and find brief summaries of disciplinary cases.
But the commission is limited on what it can reveal. To eliminate such secrecy, voters would have to approve a ballot measure that would change the state Constitution. That would mean the legislature would have to approve a general election ballot referendum.
Or someone could lead a ballot initiative, meaning an organization or individuals would have to pay for an expensive drive to collect enough signatures to put the issue on the ballot.
“It’s nonpartisan and no one benefits more than another so no one wants to put money into it,” Forsyth said.
States with more transparent judicial discipline procedures are typically states where judges are elected and must run partisan political campaigns, Campbell said.
In Colorado, a commission nominates judicial candidates to the governor, who then appoints them to the bench.
After that, voters decide whether to retain judges, but those judges don’t campaign for the yes or no votes.
“As a general principle the states that have a very selective nominating process tend to have less complaints about judges,” Campbell said. “We hope to handle them in a constructive way. If it’s terrible, it becomes public.”
Campbell says the confidentiality also protects those who file complaints since judges hold a lot of power.
“When people talk to me or write to me about ethics concerns with a judge they’re often terrified the judge will find out,” he said.
More confidentiality?
“There’s no other reason for this darkness other than to undermine the trust and confidence of judges in Colorado.” Chris Forsyth, executive director of The Judicial Integrity Project, which pushes for judicial disciplinary reform in Colorado
Even in states where judicial discipline is more open, the decision-makers sometimes find themselves opining for more confidentiality.
Earlier this month, Superior Court Judge David S. Keenan in King County, Wash., was admonished for participating in an advertisement on city buses for North Seattle College.
His picture and the wording, “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities. David’s changing the World. He started at North,” were printed on the buses in August 2019.
But the ad ran afoul of state judicial ethics canons because it “can reasonably be read to express a preference or commitment in favor of marginalized communities,” according to the Washington Commission on Judicial Conduct’s decision and order, which is posted on its website. The bus ads also could be viewed as campaign advertisements.
Keenan, according to the documents, was a high school dropout who eventually earned his GED and multiple other degrees at the college and is a strong supporter of its mission. He also has a reputation as a community volunteer who promotes access to diversity and equality in the law.
The decision tore at the commission’s members, leading one to write an “opinion dissenting in part” to say she wished the commission was not legally bound to make the admonishment public.
“I would greatly prefer that the Commission was able to write Judge Keenan a private cautionary letter, sparing him the stress, expense and embarrassment of a public Commission proceeding,” Sherry Appleton wrote. “The State Constitutional provision that governs this Commission does not currently allow such a private sanction, however, and perhaps that is something that the legislature and the public can reexamine.”