Kansas Senate GOP wants to restrict local, school COVID-19 orders. What would that mean?

Titus Wu Rafael Garcia
Topeka Capital-Journal
A Hobby Lobby store at Topeka announces its closure in March 2020 due to a county health order stating craft stores are not essential businesses. Such orders, however, would face additional hurdles under a bill the Kansas Senate is pushing.

In the past two weeks, state lawmakers have been rushing through legislation overhauling the state's emergency management laws.

Much of the focus among media outlets and politicians have been on the majority-Republican Legislature's attempts to control the Democratic governor's emergency powers. Lost in the political weeds is the Kansas Senate's huge reach into what local governments and schools cannot do with COVID-19 restrictions.

Senate Bill 273 “strikes a balance between how your government is going to react to that [emergency] and your individual rights and liberties,” said Sen. Kellie Warren, R-Leawood, who chairs the committee sponsoring the bill.

Whether there is that "balance," however, is contested by some Kansans outside the Statehouse, while others see it as the right step forward.

Local Kansas health officers would not be able to issue orders under this bill

The most eye-catching part of the bill meddling with local COVID-19 response is that it would strip local health officers the authority to issue orders. Instead, it's only recommendations that can be issued.

"You cannot allow unelected officials to make mandates,” said Sen. Mark Steffen, R-Hutchinson.

Any actual order would have to be issued from the county or city commission. But that's raised some eyebrows in a time where public health officers have tussled with elected officials statewide.

Gianfranco Pezzino, former Shawnee County health officer, speaks during a news conference last year. He resigned in frustration after county commissioners loosened one of his COVID-19 orders.

It's what happened with former Shawnee County health officer Gianfranco Pezzino, who resigned in frustration in December after commissioners loosened his order to allow teams to practice sports and bars to open until 10 p.m.

Pezzino, with the Kansas Health Institute, said he couldn't comment on specifics of the bill but that generally, local health officers follow the science and aren't influenced by external factors like elected officials.

"In my experience, moving the authority to enact countermeasures from the health officer to local elected officials has created confusion and division," he said. "Moving that authority away from them risks to leave our public health system more vulnerable to threats and less able to react adequately and promptly."

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Whether local officials in Kansas will follow the science and officers' guidance has proven to not be the case, when the vast majority of counties chose to opt out of Gov. Laura Kelly's first mask mandate. Many face intense pressure from constituents who are fervently against virus restrictions.

"I can speak to this from experience directly that it is intensely more difficult for a local official ... to put these kinds of things, in effect, to put in a more restrictive health order that is going to close bars and restaurants, that's going to require mask wearing and it's going to have a fine if it doesn't happen," said Commissioner Jeremy Johnson, of Crawford County, which has such orders in place.

Johnson fears with only recommendations allowed, the pandemic response won't be effective. It's what his county tried at first.

"When you put out recommendations, what we have found over and over and over again, is that people will not listen to them," he said.

But Mayor R Hunter McMillen, of Solomon, a town of 1,095 residents, praised the proposed change. His city has been fighting with Dickinson County's health officer for months over his COVID-19 orders.

"I definitely agree with it," he said. The health officer "overstepped his boundaries. He did what he thought was right, what he believed, and he didn't listen to anybody else."

His sentiments echoed arguments of unelected officers not listening to the people. McMillen said experts themselves didn't even understand the virus as the pandemic began, referencing how the CDC changed its COVID-19 guidelines.

But the mayor doesn't think the loss of mandates from health officers will change much if county commissioners still turn those recommendations into orders.

"We only have three county commissioners in Dickinson County, and not once did they vote against anything that (the health officer) said," McMillen said. "They went to thinking he was the expert on this." 

Regardless, some orders would be shot down no matter what, such as those that "substantially burden or inhibit the gathering or movement of individuals or operation of any religious, civic, business or commercial activity, whether for-profit or not-for-profit," unless with scientific justification. Religious activity can't be affected, period.

Relief from Kansas' local government

In Dickinson County's situation, where elected officials agree with the health officer, orders still face a significant hurdle: constituents who disagree.

Under the bill, anyone aggrieved by an order has the right to request a hearing with the city or county to be held within 72 hours to amend, review or revoke the order. 

"Oh god, oh my god," reacted Johnson, who said such a rule would essentially make any order impossible to keep in place if every person who disagreed requested such.

"We still had people coming into our meetings and screaming at us about how we were destroying lives and making things awful by making people wear masks," he said. "You put this kind of thing in place, it ensures that those people coming in and screaming will dictate the conversation, that they will drive policy and that anything meaningful that will actually impact disease mitigation will not be put in place."

More:What would the COVID-19 relief bill mean for Kansas? $34 million would come to Shawnee County.

McMillen thought the exact opposite, saying such hearings would have no effect if commissioners already made up their mind on keeping in place orders.

"They allowed a few people to go in and speak," he said when Dickinson County was considering putting in place mandates. "That wasn't even a hearing. That was like, 'Oh, are you done? Let's go. Next agenda item.'"

If that process was not enough, the bill would allow aggrieved persons to head to court to request a hearing, as well. Courts have to schedule a hearing and give notice within 72 hours, and then hold the hearing within 10 days. 

Relief from the order must be granted by the judge unless the city or county shows "clear and convincing evidence" the order was necessary, reasonable, supported by science and intended to remediate the spread of the disease – not a high or low bar, but in the middle, legal experts said.

Business groups in Kansas have lauded this component, saying they've been hurt by orders restricting capacity or shutting down without getting a say in them.

"We were struck by how thin representative democracy became during the pandemic," said Scott Schneider of the Kansas Restaurant and Hospitality Association. "The due process, remedies didn't seem to exist in a meaningful way. The process that we saw seemed to not accommodate any form of appeal."

Ladybird Diner owner Meg Heriford boxes up slices of pie at her restaurant. Restaurants like hers would have the ability to appeal any COVID-19 order under a bill passed out of the Kansas Senate.

Some businesses already have filed in court challenging COVID-19 orders, but what makes this different is the 72-hour rule to ensure the cases get prioritized.

"Being able to have those arguments in a timeframe before all the harm happens, I think really that's what they're trying to accomplish in this," said Schneider.

It's this same requirement, though, that has the judicial branch a bit concerned about its feasibility if this bill passes. Already, the branch is facing a backlog of jury trial cases from when courts shut down during the pandemic.

"To keep a court's caseload moving, and to make full use of a judge’s time, some cases are scheduled weeks ahead. For jury trials, the schedule can be made months ahead," said Lisa Taylor, spokeswoman for the Kansas Supreme Court. "Court filings that require immediate processing, or processing on a short timeline, can slow work on other cases and can certainly disrupt hearings already scheduled." 

More:‘I don't trust the federal government’: Kansas legislators split on plans to spend COVID-19 relief

Another notable change from this process is that the burden of proof would shift, from the person challenging the order to the government. It could make filing a case against an order easier and could lead to the potential for more lawsuits, some have said.

Still, the Kansas Chamber pointed out that not every aggrieved individual would know how to navigate the legal system to get relief from an order. An attorney may be needed, which requires money.

"I don't know, honestly, if the businesses would have hired an attorney to fight that" order, said McMillen, about a business group that was fighting his county's mask mandate.

How will this impact schools?

Under the Senate bill, local school boards would become the only entities allowed to make decisions on school operations, with the reasoning that their members, as locally elected officials, would be more sensitive to the desires of their school communities.

But in making any emergency decision that would move students to anything but full-time, in-person learning, the school boards would have to provide rely on specific scientific or health data and document it as justification for closing schools to in-person learning.

And any employee, student, parent or guardian who feels they have been “aggrieved” by a school board decision would be given the option to request a hearing within 72 hours at their respective district court to review, amend or possibly rescind those decisions or orders.

Non-public schools, under an amendment adopted by the senate committee, would be exempted from these requirements, but that is essentially a non-issue, since parents choose to send their children to those schools.

The bill would essentially strip the Kansas State Board of Education of any authority to determine how and when schools close, relegating the state board instead to an agency that could only issue guidance. In any case, Ben Jones, a Republican member of the board and one of its legislative liaisons, said the board held no position on the bill.

A meeting of the Kansas State Board of Education.

Neither did the Kansas Association of School Boards, which last week submitted neutral written testimony on the bill, noting most of the state’s school boards have supported the concept of local control.

But Mark Tallman, the association’s lobbyist, warned in his testimony that if left unchecked and unlimited, the option to appeal a board’s decision could quickly prove burdensome, especially since most school board decisions this past year have inevitably left some groups of people upset.

“School board decisions around school opening or closure, masks or social distancing is already a balancing of rights and interests,” he wrote. “The question is whether a system of appeal to the local school board and to the courts is the best way to resolve conflicts over these rights and interests.”

Erica Price, Shawnee Heights school board president, said she has shared a lot of the frustrations parents have had, especially with misinformation that has run rampant on platforms like Facebook.

She said she could see how a requirement that boards justify their decisions with scientific or health data could help clamp down on some of that misinformation.

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Price didn’t understand, though, why the Legislature would seek to give school boards sole local control over operating decisions and then undermine them by allowing stakeholders an unlimited ability to appeal those decisions.

“…In a case like the COVID pandemic, every decision we made would have aggrieved half of the parents, students, guardians or employees,” she said. “How could that have even been managed?  Another thought, there are very few courts having hearings or trials, how would this ever been done in a timely manner during any emergency or crisis?”

Cindy Branham, a parent who has been frustrated with many of the Shawnee Heights school board’s decisions, said she supported the bill in its ambition to at least force school boards to offer some kind of option for parents — both to either send their parents to in-person or remote learning.

Branham, with a freshman daughter struggling to keep her grades up, again on Monday took her concerns to the board during their bimonthly meeting, this time to take the board and district to task for what she and other parents have felt has been poor communication.

“If they don’t respond to us, we have to assume they aren’t listening.”

JP Washburn, a parent in Shawnee Heights Unified School District 450, addresses the Shawnee Heights Board of Education on Oct. 5, 2020, in the Shawnee Heights High School auditorium, urging the board to bring students back for more regular, in-person learning. The board's meetings over the past year have regularly attracted parents who have voiced their frustrations with board actions and decisions on USD 450's COVID-19 response.

But the parent stopped short of full support of the bill, especially since she believes parents should be able to hammer out any differences with their school boards without having to resort to a district court hearing.

“I think (the bill) could open a big can of worms,” Branham said. “I think (parents) do need to have a voice… but I don’t want to be the person or parent who sits back and makes people afraid to be on a school board. I think it’s important that we protect our school boards.”

And like Price, Branham agreed that much of the problems the bill aims to solve could instead be addressed by clearer communication.

“Even though I disagree with some board members on our Shawnee Heights board, all of them feel like they are doing the right thing and making the best decisions for the kids,” Branham said. “But we need to listen to each other more open mindedly, and we as parents need to realize they’re sitting up there in high pressure jobs with a lot of responsibility, so we need to be a little empathetic about that.”

The bill's future is still up in the air

If the bill passes and heads to the governor's desk, it's likely to be vetoed by Kelly. 

But that's assuming the aforementioned provisions on local and school orders even can remain in the bill. The House counterpart of SB 273 doesn't meddle with local restrictions and focuses on the governor's office, and the two chambers have to settle on one, final version.

Members from the Kansas House and Senate have been meeting to hash out the bills' differences.

Earlier comments from House lawmakers have indicated that some are not a fan of the Senate bill, but there are others who like parts of it, such as prohibiting anybody from closing businesses or schools. 

Even if those parts don't stay in, Republicans have made clear their strong support for individual freedoms and rights. Others see the bill as contradicting the GOP's argument of local control against the governor's COVID-19 mandates.

"Doing things like this with this bill and undermining the ability of local officials to do anything about it, it's total hypocrisy on its face," said Johnson.