The day after the mayor of Iowa City issued a local mask mandate, Johnson County supervisors are preparing to approve their own order. That’s despite legal uncertainty around whether municipalities have the authority to issue such measures.
The Johnson County Board of Supervisors is poised to forge ahead with a face covering mandate, in defiance of opinions from the governor and state attorney general that local governments don’t have the authority to do so.
“We got to do what we got to do. These are people’s lives. And for me, it just needs to be mandated,” said Supervisor Royceann Porter at a board work session Wednesday.
Taking a stronger stance on the widespread use of face coverings in public places is something Johnson County Public Health Director Dave Koch has encouraged. The prospect of tens of thousands of young people returning to the county next month to attend the University of Iowa is a concern, Koch told the board Wednesday.
Young people have been driving up case counts in Iowa and across the country.
“Especially going into the fall, especially for Johnson County, we all know what’s happening here in less than a month with students returning to the university,” Koch said.
Koch issued a memo to municipalities last week urging local officials to take unified action to expand the use of masks. Language from that memo was incorporated into the order issued Tuesday by Iowa City Mayor Bruce Teague.
“Really the timing now is critical for us to move forward with this, just in stronger language. We’ve been educating and putting out so many messages and it’s just not completely working yet,” he said. “So we’re just trying to encourage elected officials to take a little bit stronger stance.”
"The authority of mayors is different than what the counties have. And so whether [counties] can do that is really questionable."- Janet Lyness, Johnson County Attorney
That’s despite guidance from Johnson County Attorney Janet Lyness that a local mask mandate may not be enforceable, especially when issued by a county board of supervisors, which is not granted emergency powers under state law in the way mayors are.
“The authority of mayors is different than what the counties have. And so whether you can do that is really questionable,” Lyness told the board Wednesday. “I will say that we are looking at this and we are looking what the board of health might be able to do with even more effectiveness in terms of mandating things.”
Iowa’s local governments are granted home rule powers to “preserve and improve the peace, safety, health, welfare, comfort and convenience of its residents," under the Iowa Constitution and Iowa Code.
While mayors are further empowered to act during emergencies, Iowa Code 135.140(6) separately grants the state the power to manage public health crises, according to Drake University Law Professor Hunter Clark, who teaches state and local government law, among other courses.
“Public health disasters are different from the kinds of emergencies or public dangers referred to in Iowa Code 372.14. And it seems to me that the state has specifically reserved to itself the authority to coordinate and respond to public health disasters,” Clark told IPR.
He says he agrees with the guidance issued by Iowa Attorney General Tom Miller’s office that abilities of local governments to respond to the COVID-19 crisis are preempted by the state.
“A mask mandate, I think, is analogous to a shelter in place order,” Clark said. “Both the mask mandate and the shelter in place orders are a response to COVID-19 crisis. And I agree with the State Attorney General opinion, Tom Miller opinion, saying that shelter in place orders cannot issued by municipalities. The power to issue them is reserved to the state.”
"Both the mask mandate and the shelter in place orders are a response to COVID-19 crisis. And I agree with the State Attorney General opinion, Tom Miller opinion, saying that shelter in place orders cannot issued by municipalities. The power to issue them is reserved to the state."- Hunter Clark, Drake University Law Professor
While Lyness said her office is still exploring whether county boards of health could have greater power to issue such mandates, Johnson County supervisors seemed uninterested in waiting for further legal advice.
“I appreciate [County Attorney Janet Lyness]’s comments but I stand firm on mandate,” said Supervisor Pat Heiden.
Months-long efforts by public health experts and elected to encourage Iowans to voluntarily wear face coverings in public have failed to control the virus, said Supervisor Lisa Green-Douglass. Even an unenforceable mandate is worth doing if it gets more Iowans to cover up, she said.
“We’ve encouraged until we’re blue in the face. We’ve encouraged and people are dying. We’ve encouraged and people aren’t wearing masks. And we’ve encouraged and numbers have gone up. Let’s quit encouraging. Let’s say ‘mandate’,” Green-Douglass said. “We can’t enforce it, but let’s do it anyway.”
Supervisor Janelle Rettig seemed undeterred by the prospect of the county being sued over a mask mandate, whether a lawsuit comes from Gov. Kim Reynolds or a private citizen.
“If someone wants to sue us, then let the governor do that. And then let’s fight it out. But this is a public health pandemic,” Rettig said. “Iowans are dying and we should show leadership and stop mincing words.”
The board is working with the county public health department to finalize the language of the order, with the goal of taking up the issue at a formal meeting Thursday.