Crawford County Commission declines to issue new mask order

Jonathan Riley
Morning Sun

PITTSBURG, Kan. — Though they continue to recommend wearing masks and following COVID-19 mitigation guidelines, after discussing the matter Tuesday the Crawford County commissioners issued no new public health orders in the wake of the statewide mask mandate ending last week. 

“The governor’s mask order expired March 31 as of midnight. She reinstituted that order on April 1 with many other orders. That was subsequently overturned,” Crawford County Public Health Officer Dr. Tim Stebbins said. 

“And so there is no statewide mask mandate currently,” he said. “Also in the interim we had an additional new statute, which was Senate Bill 40, that passed [...] which significantly limits the governor’s ability for executive orders,” Stebbins said, in that the Kansas Legislative Coordinating Council has to approve orders related to COVID-19 response. 

“I’m a little bit disappointed in this legislation quite frankly, and the limitations that it causes due to fear of litigation,” Stebbins said. 

County Counselor Jim Emerson “would probably have a better explanation of all of this,” Stebbins told the commissioners, “but what it boils down to is we can — you can as the health board — apply local restrictions.  

“The challenge with that though is if any persons in the community feels like they’re aggrieved by that, they can petition the court for a hearing, which has to be done within 72 hours. And if the court believes that it is not limited in scope and defined according to the current situation, they could overturn that for that individual. It goes on further that there’s potential for civil action related to that. All of this will, in my opinion, scare the counties and school boards from placing actions.” 

Emerson noted that there is currently no legally-binding public health order in place that deals with wearing masks. 

“We previously had closed out our Health Order No. 3, so as we sit there is no health order for Crawford County. The mask order is gone, and our own health order. So the statute not only put in place kind of a check on the governor’s power but it also put some limitations on what we can do,” Emerson said. 

SB 40, Emerson pointed out, allows “any person aggrieved” to challenge a county mask order in court. “That’s pretty wide open,” he said. 

“So it’s not like you have to show that you’ve suffered some kind of damages or whatever, it’s ‘any person aggrieved.’” 

In response to a comment from Commissioner Tom Moody, Emerson said enforcement of a new hypothetical county-level mask mandate “is another piece,” but also that “enforcement really has never been an issue, because we have not set out to enforce the mask mandate since its inception; we’ve relied on voluntary compliance, and we’ve had a group of businesses that have joined on to help us and I think they’ve done a really nice job.” 

The threat of lawsuits, however, makes it difficult for the county to justify a new mask mandate, Emerson said. 

“It really makes it hard to vote for a mask mandate with the knowledge that it's pretty wide open for somebody to go to court. Maybe one case wouldn’t be bad, but if we’re flooded with cases, we just can’t handle that,” he said. 

“They’ve set us up with, you know, a procedure that we’re not sure what could happen to us. We could have a lot of people in court or we might have none.” 

Emerson and Commissioner Jeremy Johnson both noted that the Crawford County District Court is already behind schedule because of the pandemic. 

“They are behind,” Emerson said. “However, this statutory language is very specific, that they pretty much have to do this. So it doesn’t give them much wiggle room. It pretty much says ‘You have to have a hearing within 72 hours and you have to issue the order,’ which sure would be a strain on them if there was a multitude of cases filed.” 

Moody said the best approach would be to recommend that people continue to wear masks and that employers require their employees who deal with the public to wear them, but not to issue a new county government order. 

The new framework for challenging county-level COVID-19 orders “strips us of our power,” said Johnson. “That is the intention.” 

Commissioner Bruce Blair said that while issuing a new health order was possible, it would be an invitation for people to file enough lawsuits against the county that they would overwhelm its resources. 

“There’s people that are ready to sue us, they’ve just never had what they’ve seen as grounds, until this, for sure,” Blair said. 

“You can do it, it just comes with a cost, and I don’t think it’s a cost we can absorb.”