Wichita mask law, plagued by drafting errors, quietly expires as COVID numbers worsen

Wichita’s mask mandate to limit the spread of the coronavirus, the most controversial city ordinance of recent years, is no more.

The ordinance requiring protective face masks was quietly allowed to expire by the City Council Tuesday after a brief run plagued by drafting errors, rewrites and confusion over the conditions under which it could end.

The expiration comes as COVID-19 indicators worsen in Sedgwick County and across Kansas. Control over masks now shifts to Sedgwick County. The county commission has twice rejected mask orders from Gov. Laura Kelly, though orders from county health officer Dr. Garold Minns have been allowed to stay in place. Minns extended his mandatory mask order until Dec. 9.

Police cannot write tickets for violations of the county’s public health order, as they could under the city’s stronger ordinance. The county version can only be enforced through the lengthy procedure of filing a civil lawsuit and obtaining a court order.

The change in enforcement takes place against a backdrop of heated rhetoric from fervent and organized mask opponents and even a death threat targeting the mayor who proposed it and shepherded it through the council.

Now, “The will of the council, as I understand it, is that because the mask order on the county level is now mandatory, they feel that we can allow the county to take over our mask orders,” Mayor Brandon Whipple said.

He said he disagrees, but no longer has a majority to extend the ordinance again. It was left off Tuesday’s agenda.

“It’s the will of the body,” Whipple said. “I don’t have executive authority; everything has to pass with at least four votes.”

There appeared to be some initial success from the city’s mask law, even though it was not widely enforced by police.

Many coronavirus pandemic indicators — include the positive test rate, current hospitalizations and the rate of new cases compared to population — improved in Sedgwick County starting about three weeks after the mask ordinance was passed on July 3. But the numbers have worsened since the middle of September, about two weeks after the Labor Day weekend and the start of in-person classes and high school sports.

A majority of the council set Wednesday as the law’s expiration date when they extended it during a Sept. 8 meeting where 120 mask opponents testified before the council for seven hours.

Council member Becky Tuttle broke ranks with mask supporters and amended in a hard deadline of Oct. 21 for the end of the ordinance, along with other triggers that could be used to end it sooner.

Those trigger mechanisms, which were unclear at the time, forced the ordinance to be published as a legal notice in the newspaper three times. The original legal notice was published in the newspaper Sept. 11 and corrected on Oct. 4 and Oct. 11.

And the mayor and city manager still disagree whether they ever got it right.

In the original Sept. 11 publication, the ordinance’s expiration date was written so that it did not apply to the main sections of the ordinance that required masks. The effect was that the mask law would never expire.

After The Eagle questioned the legal language, the city republished the ordinance on Oct. 4.

Layton referred to the “drafting errors” in the first two publications as a personnel matter.

“We had mistakes,” he said. “I’ve talked to the staff about that and about how the process needs to be improved so we don’t have mistakes in legal notices, including the publication of ordinances.”

But with the Oct. 4 publication, the city corrected one problem and introduced another. Instead of requiring improvements in both criteria, only one needed to improve because the word “and” was changed to “or.” That version of the law would have allowed the mask mandate to expire about a week after it was extended, because one of the criteria — the positive test rate — improved temporarily.

Questions from a reporter again led the city to republish the ordinance again on Oct. 11, changing the wording back to “and.” But Whipple and City Manager Bob Layton still disagree on whether that version was accurate.

The council had added two pandemic indicators — a positive test rate of less than five percent and a hospital status of green — as criteria for an early end to the law. But Tuttle’s motion was not specific, referencing only “the five percent and green status.” The terms were undefined in the definitions section of the ordinance.

The county health department tracks COVID-19 numbers in several places, including on its COVID-19 dashboard and on its weekly recovery and reopening metrics report. Both are reported slightly differently and both have indicators referenced in the motion.

For example, the weekly recovery report features an indicator that turns green when hospital admissions are decreasing or stable. It’s less clear when the hospital indicator turns green on the dashboard. That indicator is “a little bit arbitrary,” the city manager said during the September meeting.

Using the dashboard would mean the mask law stayed in effect until Wednesday because the hospital status has remained yellow since early July.

Using the weekly recovery metrics report would mean the mask mandate was canceled after the week of Sept. 13 when the two-week positive test rate was 4.8% and the hospital status was green from two weeks of decreasing admissions.

Layton and Whipple also disagree on the criteria for positive tests. Layton said the positive test rate criteria was supposed to be a 14-day rolling average that only had to drop below 5% once. Whipple said that is incorrect, and that it had to stay below 5% for two weeks.

“That should be a red flag for anyone who’s typing this (ordinance),” Whipple said. “Touching below 5% for one day, so now we can take our foot off the gas? No, you need to show an actual trend.”