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Johnson County Officials Approve Mask Mandate, Despite Legal Guidance It's Unenforceable

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Nik Anderson
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Flickr Creative Commons
The Johnson County Board of Supervisors has approved a local mask mandate, despite legal guidance from the county attorney that such an order is not enforceable.

The Johnson County Board of Supervisors unanimously passed a resolution on Thursday mandating the use of face coverings in public. That’s despite legal guidance from the county attorney that the measure is not enforceable.

The measure contains no penalties and “is not intended to be punitive or stigmatizing." While its legal status may be muddled, county officials hope it sends a clear message: everyone should wear face coverings to control the spread of the coronavirus.

Under the order, every person in Johnson County must wear a face covering in public when maintaining 6 feet of distance from others isn’t possible.

Exceptions include:

-while traveling alone in a personal vehicle or with household members

-while exercising at a moderate or high intensity

-while actively eating or drinking in a restaurant

-while receiving a service that requires the removal of a face covering

-when state or federal law prohibits the wearing of a face covering

Children under the age of 2, those with certain medical conditions or anyone who is unconscious or incapacitated is not required to wear a face covering.

Legal uncertainty didn't dissuade Johnson County officials

Legal uncertainty has dissuaded other officials in Coralville and Scott County from passing a mask mandate they can’t enforce. But not the Johnson County Board of Supervisors.

"For you to adopt or pass a resolution saying that people shall wear face coverings does not have the enforcement that something that a city might do in an emergency like this. It does not make it a simple misdemeanor. It basically is unenforceable."
- Janet Lyness, Johnson County Attorney

They’re well aware the governor and state attorney general’s office have said neither cities nor counties are currently authorized to issue such orders, rendering them “moot."
Some mayors and city attorneys have taken issue with this opinion, arguing that mayors in particular are empowered to govern by proclamation during times of emergencies.

Earlier this week, Iowa City Mayor Bruce Teague issued a mask mandate for his city, punishable by a simple misdemeanor, though he says a citation is a “last resort."

Johnson County Attorney Janet Lyness made it clear Thursday morning before supervisors took their vote that her legal opinion is that counties, unlike cities, do not have those same powers under Iowa Code.

“The authority of cities is different than the authorities of counties,” Lyness explained. “For you to adopt or pass a resolution saying that people shall wear face coverings does not have the enforcement that something that a city might do in an emergency like this. It does not make it a simple misdemeanor. It basically is unenforceable.”

Supervisor Lisa Green-Douglass did not seem discouraged by Lyness’ opinion, pointing out that in the eyes of the attorney general, none of these local mask mandates are enforceable.

"We already know that our ability to enforce it is slim to none [...] I still think we need to have a resolution."
- Lisa Green-Douglass, Johnson County Supervisor

“We already know that our ability to enforce it is slim to none. We already know that without the AG’s office this really doesn’t hold enforcement abilities or the level of a mandate,” Green-Douglass said. “I still think we need to have a resolution.”

Supervisor Janelle Rettig agreed that in the absence of a statewide mask mandate, there is value in local elected officials declaring their stance, even if enforcement is not currently an option.

“[Let’s] be clear on our message,” Rettig said. “If it’s not enforceable, it’s not enforceable. But at least it’s clear.”

Board of Health measure may be stronger

The vote comes as confirmed coronavirus cases in Iowa have exceeded 40,000, having reached all of Iowa’s 99 counties, touching even the most tightknit, self-sufficient and rural communities. As of Thursday, 818 Iowans had died of COVID-19.

While Lyness believes counties do not have the power to mandate face coverings, it’s her legal opinion local boards of health do.

“If you wanted to proceed, I think the best route would be to talk to the Board of Health and have them look at passing an ordinance that would then have to be approved by the Board of Supervisors to require this,” Lyness told the board.

Supervisors intend to do just that.

"[Let’s] be clear on our message. If it’s not enforceable, it’s not enforceable. But at least it’s clear."
- Janelle Rettig, Johnson County Supervisor

“I would really like to do that. Pass the resolution encouraging people, but then taking it the next step and working with the Board of Health. And have them do the ordinance," Supervisor Pat Heiden said. "We pass the ordinance and then it has some teeth to it, as far as a misdemeanor."

The measure was approved in coordination with Johnson County Public Health Director Dave Koch, and the county Board of Health, which has encouraged the use of face coverings.

The vote comes as more states are implementing their own broad mask mandates as coronavirus cases continue to climb, especially among young people. This week alone, the governors of Indiana, Ohio and Minnesota all approved face covering orders, with more than half of U.S. states now having a mask mandate.