County ditches mask mandate, crowd size limits

Chad Frey
The Kansan
Mask mandates went into effect for Harvey County in July of 2020, and were lifted Tuesday after the county commission reviewed legislative action — specifically Kansas SB40. [KANSAN FILE]

When the county commission met Tuesday morning decision makers were expected to lift crowd size limitations put in place designed to slow the spread of COVID-19. And they did that. 

They also did more — lifting a mask mandate that had been in place for months. A mandate that a majority of the commission still supports. Their action was a direct response to actions taken in the Kansas legislature this spring. 

"If people have an issue with this I suggest they contact state legislators and state senators," said commissioner Randy Hague. "They are the ones that forced this onto us."

Specifically, Senate Bill 40. That bill was designed to limit the powers of the governor — which it does — and to limit the powers of local governments in a health crisis. 

"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."

The governor signed a mask mandate, which counties could opt out of, July 3, 2020. Harvey County did not opt out of that mandate, and until March 23 had a mandate in place. 

SB-40 was passed by the legislature and is expected to go into effect upon publication in the state register — around April 1. 

"With Senate Bill 40, the Health Department kind of gets thrown under the bus and that bothers me" said Don Schroeder, a former state representative who now serves on the Harvey County Commission. "We need to pay more attention to the professionals in that that area. ... With Senate Bill 40 I don't think the county has an option but to rescind the mask mandate sooner rather than later."

SB-40 specifies that health officers can't solely issue orders that specifically mandate face masks, limit gathering sizes, affects business operations, controls movement of the population or limit religious activity. Such an order, if necessary, must be approved by the board of county commissioners.

"The order will have to have an expiration date," said county administrator Anthony Swartzendruber. "The board will have to consider that. When it comes to the local health officer, they can make a recommendation to the county commission and the county commission will decide it if goes into place."

Westfall said the bill was a departure from how the legislature had been doing business in the past. 

"It was pushing out to counties and counties and counties during February, April, May (2020) and all of this," Westfall said. "Now the Senate and the House want to run the state and bypass the governor. That is the predicament we are in and we have to live with it. We have to live within the guidelines."

In Harvey County each order by the county health officer has been reviewed, and voted on, by the county commission — which doubles as the county board of health. 

Under the SB-40, those orders specifically can be appealed in court.

"The court will decide if what the county commission put into effect was narrowly tailored to the purpose stated in the order and used the least restrictive means need to achieve that purpose," Swartzendruber said. "The court has seven days to make a ruling. If they do not make a ruling, then the person who was grieved automatically wins by default."

The current state COVID-19 disaster declaration expires March 31.

What the commission did Tuesday

The Harvey County Commission voted unanimously to remove local health orders concerning COVID-19 that limited the size of mass gatherings and required face masks in Harvey County. Both orders were removed effective immediately.

Face masks will continue to be required inside county government facilities for both the public and county employees.

"It is imperative that people continue to take personal responsibility and take common sense precautions, because COVID-19 has not gone away," said Harvey County Health Department Director Lynnette Redington. "The Health Department will continue to recommend individuals wear a face mask, social distance, and to get a COVID-19 vaccination when it is available to you."

The commission has issued a recommendation that face masks be worn in public. 

Affect on school districts

Under SB-40 local school boards and community college boards are given the sole authority to close down or restrict operations when responding to an emergency.

"Any rules concerning the COVID-19 pandemic will be controlled by school boards," Swartzendruber said. "The county health officer and county commission cannot issue orders that bind any community college or technical college facilities." 

The process to appeal any orders from education boards for aggrieved persons is the same as all the others, except that one must have a hearing first with the local board itself. The board must hold a hearing within 72 hours and issue a decision within seven days.