While news of Governor Laura Kelly’s plan to mandate the wearing of masks in public spaces broke Monday afternoon, an official executive order is still pending at this time.
Preliminary details on the order suggest its requirements will be able to be tailored by local officials depending on each county’s unique situation, but many questions remain as far as its actual enforcement. Although some crucial specifics remain unknown, The Gazette reached out to Lyon County Attorney Marc Goodman Tuesday morning to get his initial reaction on the reports.
The first topic Goodman felt necessary for the public to understand was the difference between a mandate and a set-in-stone law.
“On the state level, you have state statutes which have to be enacted by the legislature,” Goodman said. “Those have the full force of law behind them. Below that — administratively — you have these orders. So, if you were ranking them, a state statute is a higher priority than the order, declaration, proclamation, mandate, resolution or whatever word you want to use to describe it.”
Goodman said that while county commissioners will have freedom to determine the level to which they adhere to the order, their reasons for differing from the governor’s recommendations are required to be readily apparent.
“To be less restrictive or more restrictive than the governor’s declaration, our commissioners would have to talk with the county health department and state reasons for why they’re doing so,” Goodman said. “So, it can’t just be some arbitrary decision, there needs to be details and reasoning behind it. The actual process as it stands right now, is that Kelly has put out a recommendation which is nothing more than an early release of what she’s going to proclaim. Unfortunately, we just don’t have that information on what medical exemptions or business exemptions might look like right now.”
In considering the timing of Monday’s announcement, Goodman views Kelly’s decision to spread the word on the upcoming order as a bit “premature” considering the present lack of a concrete, realistic plan for enforcement.
“Number one, she still needs to meet with the Attorney General’s office to determine whether what she’s saying even has any solid legal footing to stand on according to the state,” Goodman said. “Number two, the order has to at least be voted on by members of the finance council. Now, to totally override her, they would need to get the legislature back together. Arguably, you’re not going to see that happen.
“The major piece I feel is being left off, though, is that you have to wear masks in public spaces unless — and it’s a big ‘unless’ or a big ‘if’— you can’t properly socially distance and you’re going to be in contact with a person for more than 10 minutes. There are those two pieces to social distancing, and there always has been. It’s not just about the space, it’s about that aspect of time as well. That’s something that is totally ambiguous in my mind. What do you even do about that? She isn’t mandating everyone has to wear a mask anytime they’re out of the house, she’s mandating people wear masks under these ‘except’ or ‘but’ conditions. I haven’t seen anything yet that accurately stresses the back-end piece to what she said, and that’s a big problem. People want those details and that leadership, but the leadership instantly comes with a ‘but for’ clause attached to it.”
Another major problem Goodman perceives regarding the order is the matter of consequence-based incentive to even follow it.
“In their enactment in June, the state legislature did away with all criminal penalties [concerning public health orders],” Goodman said. “Those violations are considered a civil matter now. It says an attorney general or a county/district attorney should enforce it, but the major problem is that I don’t even know how we’re going to figure out who to enforce it against.
“Law enforcement doesn’t have to do it, so I would say it then falls to the health department. They would have to go out and identify who the people are that aren’t wearing a mask and be the controlling arm of this. I don’t even think they have the necessary staff available to do that. As a matter of physical safety, I also don’t think it would be very wise to just go up to people on the street and say, ‘I want your name and address so I can cite you for not wearing a mask.’ It all sounds funny and bit stupid, I know, but we’re a society based on laws. If things aren’t ironed out in some way, I think you’re asking people to enforce something very cumbersome and nearly impossible to enforce.”
Despite all the potential problems moving forward, Goodman said he believes the idea behind the order was made in good faith and with the safety of all Kansans in mind. He hopes community members remain considerate of others moving forward, especially those at higher risk for infection.
“We strongly, strongly, strongly recommend people wear masks in public places regardless of any order or mandate, because the data appears to suggest that they are helping stop the spread,” Goodman said. “Another aspect of that, though, is getting people proper masks and telling them how to properly wear and sanitize them between uses … There are all these back-end aspects of this that people aren’t talking about which could go a long way in stopping some of the arguing and confusion in the long run.”
Stay with The Gazette for more coverage and thoughts from local officials as details on the mask mandate become public.