After discussing coronavirus-related matters for nearly two hours Tuesday, not counting a 15-minute recess, the Crawford County Commission approved a motion to follow the county health officer’s recommendation on the issue of wearing masks, which was to follow Gov. Laura Kelly’s executive order without implementing a less restrictive policy.
The vote on the motion was 2-1, with Commissioner Bruce Blair opposed.
"I have difficulty endorsing an order that we have no intentions of enforcing, and it’s a free-for-all," Blair said. "But I do agree that we should strongly recommend people to wear masks, and if a business requires them it should be 100 percent up to that business."
Earlier in the meeting Blair had raised issues including the possibility that family members would share masks, that people would not wash their masks regularly, and that wearing masks would give people a false sense of security that they would be protected from contracting COVID-19.
"I have no intentions of wearing a mask to be honest with you, but if I go to a business and they require it, I will do that, because that’s their right. And likewise at the courthouse if we decided that it’s in the best interest of the courthouse then I’ll wear it here, but the loopholes and the exceptions make it muddy."
Earlier in the discussion Tuesday, Sheriff Danny Smith read from a memorandum released by the Kansas Attorney General’s Office last week, which noted that "the authorities and procedures ordinarily available to law enforcement officers to enforce criminal laws may not be used to enforce the Mask Order." The memo goes on to state that law enforcement cannot make investigative stops or arrests or issue citations for violations of Gov. Kelly’s mask order.
"So as far as our part, in terms of that, my job is black and white when it comes to that, and I have no choice," Smith said, adding that he strongly recommended following medical professionals’ guidance on wearing masks. "But as far as enforcing that, we don’t have the authority to do that."
Smith said it was "a whole other ballgame," however, if a business requires its customers to wear masks and they refuse to do so.
"We will show up if anybody’s having issues like that," he said.
In terms of enforcement of the mask order — not at a business that is calling the police or sheriff’s office about customers refusing to follow its rules, but in general in public spaces where masks are required under the order — the main power available to the county government is the ability to file civil lawsuits.
Crawford County Attorney Reina Probert also spoke at Tuesday’s meeting, noting that the Kansas Legislature modified the enforcement provision of executive orders from the governor in June, reducing the potential penalty for a violation from a misdemeanor punishable by a year in jail and a $250,000 fine.
"And so now it is a civil procedure akin to a public nuisance," Probert said, "and so the penalty is to file a civil lawsuit and subject the individual to up to $2,500 fines."
But even filing a civil lawsuit could be complicated and "kind of a catch-22," she said, "because in order to file a civil lawsuit I’m going to have to have an affidavit from law enforcement or from a citizen saying they want this person charged or held accountable."
Probert added that, as Smith said, businesses have a right to require masks and her office will prosecute violators for trespassing or public nuisance charges.
"But I think that between the change of the law in June and the attorney general’s opinion, I think it makes enforceability really difficult unless the commission enacts a county-wide ordinance that gives my office a little more teeth to go after it," she said.
The commission has not yet enacted any such ordinance.
"The enforcement piece is a bit challenging," Crawford County Health Officer Timothy Stebbins said Tuesday, although he strongly recommended following Gov. Kelly’s order and aside from wearing masks in public, also following other health guidelines such as frequently washing hands, using hand sanitizer, and maintaining social distancing.
Commissioner Tom Moody, who made the motion in support of Stebbins’ recommendation, said he did so while bearing in mind priorities such as being able to reopen schools in the fall and being able to keep businesses open.
"You want to talk economics? This is how we do it," Moody said. "Because if we don’t do this and our numbers continue to skyrocket, we’re going to be in a shutdown again, and that’s no good for anybody."