Kelly says mask mandate is key to keeping economy open and reopening schools; enforcement decisions will remain local

photo by: Associated Press

Kansas Gov. Laura Kelly answers questions from reporters following a meeting with legislative leaders about budget issues, Friday, June 26, 2020, at the Statehouse in Topeka, Kan. (AP Photo/John Hanna)

Story updated at 4:18 p.m. Thursday:

TOPEKA — Kansas Gov. Laura Kelly spelled out three reasons Thursday afternoon for her mandate that Kansans wear masks in public to slow the spread of COVID-19: She has “no doubt” it will save lives, it is the only way to safely keep the economy open and it may be the key to opening schools in August.

“If we really want to open our schools in August, we need this now,” Kelly said Thursday afternoon during a meeting of the State Finance Council. “The trend is going in the wrong direction. At the current trend rate, we would not be able to open our schools for in-classroom learning in the fall.”

The council — a nine-member committee composed of Kelly and top legislative leaders — reviewed the order during a mostly cordial 90-minute meeting. Though legislation passed in June gave the committee the power to review Kelly’s executive orders related to management of the pandemic, the committee could not revoke the order, which is set to take effect at 12:01 a.m. Friday.

More conservative members of the committee pressed Kelly’s general counsel, Clay Britton, on the legality of telling people what to wear in public. Britton and Kelly remained steadfast that the mandate in no way restricts people’s movement, and they said it wasn’t much different from a legal perspective than requiring clothes and shoes in school buildings or grocery stores, for example.

Enforcement decisions

Whether to enforce the statewide mask mandate is a decision that Kelly’s executive order leaves up to local jurisdictions.

Minutes before the State Finance Council meeting began, Kansas Attorney General Derek Schmidt issued new guidance saying his office would also leave any enforcement of the mandate up to individual cities and counties.

“I think the better approach is to leave any enforcement to local authorities who know their communities best and to give Kansans information and encouragement and trust them to make wise decisions,” Schmidt said. “… (Our office) has no plans to bring our own enforcement actions simply for not wearing a mask.”

That said, Kelly hopes Kansans will choose to protect the interests of the greater public health by wearing a mask even if a county isn’t enforcing the policy.

“Viruses don’t stop at county lines. This order doesn’t change where you can go or what you can do,” she said. “But wearing a mask is a simple and effective way to keep Kansans healthy and keep Kansas open for business.”

Douglas County health officials have enacted their own local order, which went into effect Wednesday. George Diepenbrock, communications officer for Lawrence-Douglas County Public Health, asked that people contact the health department with complaints of people not complying with the mandate rather than contacting law enforcement.

“First and foremost, we are asking for compliance and able to help provide guidance on the order and reinforce best practices,” he said.

In Douglas County, one complaint won’t be enough for the health department to forward information to law enforcement, Diepenbrock said. On the first complaint, Lawrence-Douglas County Public Health will make contact with the individual or business to reinforce the requirements of the mandate and ask for cooperation. On the second complaint, the department will make an in-person visit to reinforce the message and guidance, and the third complaint will be referred to law enforcement.

Kansas law gives local authorities the ability to fine violators of an executive order issued during a state of emergency up to $2,500. Diepenbrock said the decision on whether fines would be issued in Douglas County was up to District Attorney Charles Branson’s office.

Dorothy Kliem, a spokesperson for the district attorney’s office, said in an email that county residents are strongly encouraged to comply with the mask requirements.

“The district attorney’s office will review any complaints referred to our office about compliance and determine, on a case by case basis, if civil enforcement is warranted when voluntary compliance cannot be obtained,” she said.

What’s in the order?

The statewide order dictates that nearly all Kansans must wear masks when in public places, while waiting for health care appointments, on public transportation and essentially any time that social distancing of at least 6 feet can’t be observed. The order will be in place until Kelly rescinds it or Kansas’ emergency declaration expires — whichever comes first.

“The last few months have presented many new challenges for Kansans, and all of us want to return to our normal lives and routines,” Kelly said in a news release. “Unfortunately, we have seen a spike in the number of COVID-19 cases, hospitalizations, and deaths across our state and our country. We must act.”

Under the order, all Kansas businesses and organizations will be required to mandate mask-wearing for employees, customers and other visitors.

Several groups are exempted from the order, such as Kansans under five years of age, those with medical conditions in which a face covering could legitimately obstruct breathing ability, those who are hearing impaired and need to see mouths to communicate, and athletes engaged in sporting activities who can maintain social distancing.

Events held by the Kansas Legislature are also exempted from mask-wearing, which Britton said was a “separation of powers” issue — essentially, one branch of government can’t dictate to the others how to act. Kelly, though, strongly encouraged the legislative leaders present at Thursday’s meeting to adopt a mask policy for future legislative events.

Why is the order necessary?

Dr. Lee Norman, secretary of the Kansas Department of Health and Environment, spoke to the State Finance Council on Thursday afternoon and said a mandate was absolutely necessary as the United States continues to set records for new COVID-19 cases on a near-daily basis.

Before June 24, for example, the United States had only one daily increase of 40,000 new cases of the respiratory virus. Now, that figure is surpassed nearly every day.

And since the stay-at-home order expired in Kansas on May 4, cases in the state have increased 66.4%, Norman said. What’s more, he said, recent studies have shown that 54% of those infected with COVID-19 exhibit no symptoms.

Mask-wearing on its own, Norman said, has been shown to be 79% effective in preventing the spread of COVID-19 — a figure that increases with other measures such as social distancing and hand-washing.

Norman cited live data from the University of Washington that said Kansas could prevent as many as 11,563 cases of the respiratory virus by Oct. 1 through a statewide mask mandate.

Kelly closed Thursday’s meeting of the State Finance Council by reading a letter from 27 local health officials across the state of Kansas — including Douglas County health officer Dr. Thomas Marcellino — who praised the decision to institute a mask mandate.

“We are all concerned about the rising overall incidence of cases in the state of Kansas and its impact on the health of the populations we serve,” the letter says. “We believe Governor Laura Kelly’s decision to issue an Executive Order requiring most Kansans to wear masks in public will reduce the spread of COVID-19 and will be the best defense our state has to keep Kansans healthy and avoid another shutdown as we have seen recently in other states.”

The letter also indicates there is no medical evidence that the use of masks is harmful or unsafe.

Reporter Lauren Fox contributed to this article.

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