photo by: Chris Conde/Journal-World File Photo

The Douglas County Courthouse is pictured in September 2018.

In a completely different time, it was the masked men that you always wondered about. What are they hiding? Now it is the unmasked that create the question of our age: Are they really vaccinated?

It seems like that is the question holding back Douglas County from joining the legions of communities that have dumped their mask mandates. Commissioners last week declined to accept a recommendation from the county’s public health officer that would have eliminated the mask mandate after the CDC issued new guidance that basically said people who are fully vaccinated can go maskless and not create a significant health threat to other people.

Was that the County Commission’s way of saying it doesn’t really believe the CDC and the science it is pushing. No, but “I think there were some who perceived it that way,” County Commissioner Patrick Kelly told me.

Instead, Kelly said he was concerned that getting rid of the mask mandate while public school was still in session and with big graduation ceremonies coming up would create some unnecessary risks. The risk wasn’t that an unvaccinated student would be standing next to a vaccinated person who wasn’t wearing a mask. The risk was that an unvaccinated student might be standing next to an unmasked person who isn’t actually vaccinated. If the county’s health order disappeared, such a situation would have been completely legal.

“I was asking our community for seven more days to be unified on our approach,” Kelly said.

Those seven days are up on Wednesday. Does that mean the mask mandate will go away? Not necessarily. There is one sure way that the mask mandate would vanish. It would require one county leader to do … nothing.

If the county’s public health officer, Dr. Thomas Marcellino, doesn’t propose another public health order, the mask mandate will go away, and there wouldn’t be much the County Commission could do about it. The Douglas County Commission, under state law, cannot propose a health order. Only the county health officer can propose an order, which the County Commission can then either approve, reject or modify.

Don’t look for Marcellino to do nothing, however. I talked to Dan Partridge, director of Lawrence-Douglas County Public Health, on Monday afternoon. He said Marcellino and his deputy were working on presenting a new health order for county commissioners to consider on Wednesday.

What it will say about the need to wear masks, however, is still unknown. Remember, Marcellino already has once recommended that the mask mandate be eliminated now that the CDC has issued its guidance related to masks and vaccinated individuals.

But just because he has recommended that once doesn’t mean he will recommend it again.

“I think we want it to play out where there is not disagreement,” Partridge said of how the pending recommendation is being created.

I wasn’t quite sure what that meant, and Partridge clarified that he thought health officials wanted to avoid a repeat of last week, when they offered their recommendation only to have it rejected by the commission. He said Marcellino and his deputy do want to “stay true” to what they believe is the best course of action but also are now “trying to understand where the commissioners are.”

That is public health in the state of Kansas these days. Prior to the pandemic, elected leaders deferred to the medical judgment of health officers. State legislators, who had heard from constituents who didn’t like health orders they were having to live with, created a new law that requires county commissioners to approve health orders before they become law.

It has created a complicated situation where elected officials now have to determine how much weight should be given to public opinion versus the recommendation from the trained, public health officials.

“It is a challenge,” Kelly said. “You have some people saying you should follow the science, which means we shouldn’t be involved in it at all. But in the next breath they say you should be listening to your constituents. They’re saying that in the same sentence.”

County Commission Chair Shannon Portillo said the end result has been a politicization of public health in Kansas. She said that’s concerning and that she hopes the pandemic sparks new conversations at the state level about what we want the public health system to look like.

In the meantime, county commissioners have to decide what they want a public health order and mask mandate to look like in the near term. I asked the question of whether it could look like the guidance issued by the CDC. If you are fully vaccinated, you don’t have to wear a mask. If you are not fully vaccinated, you do have to wear a mask in those public settings that require one today.

Kelly said he wanted to learn more about the feasibility of such a split ordinance. He said he has asked health officials to really think if there are ways to focus a health order on protecting children who haven’t yet had the vaccine.

Portillo said she would be interested in hearing a legal analysis of a split ordinance. For instance, would the county get in legal trouble if it asked people to show proof that they had been vaccinated?

Partridge, the health director, said it is theoretically possible to craft such a split ordinance, but he doesn’t think many jurisdictions have been enthusiastic about doing so. The enforcement issues seem problematic.

In reality, though, is the enforcement situation that much more difficult than the current order? We’ve reported before that no one is really getting busted in Douglas County for not wearing a mask.

“I wouldn’t disagree with you,” Partridge said when I posed the comparison. “But we also are hanging on to everything we can get. We just have to continue to get community commitment to do the right thing.”

To be clear, health officials believe that is going to involve wearing masks at times, especially if you are not vaccinated.

But some members of the public also are asking: If the recent CDC guidance doesn’t allow vaccinated people to largely get rid of their masks, what ever will?

Portillo has made some statements that suggested maybe there is some particular vaccination rate that would be the trigger trashing the masks. In my interview, she noted a couple of times that only about 40% of the Douglas County population was fully vaccinated. But when I asked her if 40% wasn’t high enough, what number would be high enough, she declined to give a target number. She said the issue was more complicated than that, which is why she wants to have another conversation with health leaders and fellow commissioners on Wednesday.

Kelly said he also was looking forward to the conversation, but understood why some people expected the county to favorably consider the CDC guidance.

“I can just speak for myself, but I think the CDC guidance has weight for me,” Kelly said.

County commissioners will meet at 5:30 p.m. on Wednesday at the Douglas County Courthouse to discuss the health order. People also can attend virtually at http://dgcoks.org/commissionmeetings.