Wichita City Hall’s the last chance for continuing mask mandate; will they?
With Sedgwick County’s hands soon to be tied by a new state law, Wichita City Hall represents the last realistic chance to continue to require masks at area businesses to fight the spread of COVID-19, a county lawyer said Tuesday.
The county’s authority to enact a mask mandate comes from the state via the Kansas Emergency Management Act, which the Legislature is rewriting to limit that authority. The city, however, is empowered by its “home rule” authority granted in the state Constitution, which the Legislature cannot override, said Assistant County Counselor Justin Waggoner.
Mayor Brandon Whipple said Tuesday that he would support reinstating a citywide mask mandate like the one the City Council passed in July of last year, after the county opted to try voluntary compliance with COVID precautions and cases spiked.
The council later rescinded the city mask requirement when the county put one in place.
Whipple said now is not the time to stop the mask mandate and compared it to “getting the ball up to the 5-yard line and spiking it.”
“Other communities did that and they’re in worse shape than we are,” he said.
He said the mask mandate remains the best protection from spreading the disease until all Wichita residents can get vaccinated and have the chance to develop immunity, which is expected by the end of May.
He said members of his Small Business Advisory Council have told him they want to keep the mask requirement on for the time being because “it’s not masks that are hurting the economy, it’s COVID.”
“If you take away masks without taking away COVID, you didn’t make it safer and you didn’t solve the problem,” he said.
The issue revolves around a state bill called Senate Bill 40, a rewrite of the Emergency Management Act designed to strip Gov. Laura Kelly and county officials of their powers to order restrictions on businesses to fight the COVID pandemic, which has killed 721 Sedgwick County residents and sickened more than 54,000.
The bill has passed the Legislature and Kelly has indicated that she will allow it to become law.
When the statute becomes final, the county’s mask and social distancing requirements will be repealed.
While SB 40 allows the County Commission to make a new mask order or other restrictions, it strongly discourages it.
Any person who feels aggrieved by a county regulation could challenge the mandate in district court. They’d all have to be given a hearing within 72 hours, potentially clogging the court system and forcing the county to hire outside attorneys and expert witnesses to repeatedly defend its rules, Waggoner said.
SB 40 also tilts the table to favor the challengers, requiring that the county prove that its rules are the least restrictive way to limit disease spreading, he said.
Two neighboring counties, Reno and Harvey, dropped their mask mandates Tuesday in anticipation of the effects of SB 40.
“Our state legislators are making decisions that hinder local government and the local boards of health,” said Harvey County Commission Chairman George ‘Chip’ Westfall. “We’ll continue to support and encourage our residents and businesses to make sound health decisions to reduce the spread of COVID-19.”
In Reno County, Dr. Scott Pauly of the Hutchinson Clinic asked people to continue wearing masks, despite SB 40.
“That will buy us time to get more people immunized and eventually hit some form of a tipping point to protect the ‘herd,’” Pauly said.
State Health Secretary Lee Norman also urged continued mask usage and confirmed Whipple’s assertion that places without mask mandates are seeing COVID cases rise again.
“I think we are on a bubble, and 27 states are going the wrong way, and we don’t want to be one of them,” Norman said.
While the Wichita council could revive its mask mandate, it’s unclear whether there’s enough support on the council to do it.
Council member Becky Tuttle said she consulted with the city attorney’s office on Tuesday and they confirmed that a city mask mandate wouldn’t fall under the provisions SB 40.
She said she plans to monitor what Sedgwick County decides at its regular meeting Wednesday, and consult with county health officials and give her constituents a chance to weigh in.
The newest council member, Jared Cerullo, appointed last week to fill a council vacancy, said he prefers to rely on people taking personal responsibility for their health, but he hasn’t had time to consider whether to support a mask ordinance.
This story was originally published March 24, 2021 at 5:01 AM.
