Kansas can’t close businesses, limit crowds to fight coronavirus for seven more weeks

Even as coronavirus cases mount and hospitalizations rise in Kansas, Gov. Laura Kelly will be unable to impose statewide restrictions on businesses or mass gatherings until Sept. 15 under a new state law.

Because of a single paragraph in a measure hastily passed during a special session last month, neither Kelly, a Democrat, nor her Republican rivals in the Legislature can do much to stem the rising tide of COVID-19 cases when it comes to businesses and gatherings — even if they could agree on a course of action.

A provision in House Bill 2016 appears to render the entire state government largely powerless to order changes in business practices or limit crowd sizes for seven more weeks.

Without the possibility of statewide restrictions, counties and cities wield near-total power until mid-September to decide whether to limit businesses or gatherings. So far, they’ve had a mixed record imposing restrictions to fight the virus, with most counties overruling Kelly’s mask mandate.

Kansas is recording hundreds of new virus cases a day and hospitalizations are trending up. Over the weekend, 1,063 people tested positive and nine died, bringing total deaths to 335.

But Kelly’s power to issue executive orders on businesses and gatherings is likely handcuffed under the new law she forged with Republican leaders. The compromise effectively locks away tools the governor used to fight the pandemic in its early weeks this spring. She’ll have access to them again in September — with limits.

When the House debated the legislation in June, the bill’s Republican handler told lawmakers the mid-September date would be before a possible second wave of the virus.

During a news conference Monday, Kelly indicated that if trends remain discouraging, she will recommend counties return to phase two of her reopening guidance. The plan calls for bars and nightclubs to shut and limits gatherings to 15.

Kelly also suggested, in response to a question, she may issue a new executive order.

“We will continue to monitor the situation this week and then we’ll make a decision whether to issue another executive order next week,” Kelly said.

But an order that closes bars or restricts gatherings doesn’t appear permissible under the new state law. It says that under Kelly’s statewide disaster declaration, “the governor shall not have the power or authority to restrict businesses from operating or to restrict the movement or gathering of individuals.” The provision expires Sept. 15.

The date appears to have been chosen with a possible fall “second wave” of virus in mind. Cases began surging in Kansas in July, however.

“Sept. 15, while maybe seems like an arbitrary date, it’s before any potential second wave — we hope any second wave would come,” Rep. Fred Patton, a Topeka Republican who handled the bill during the House’s debate, said in a floor speech on June 3.

Patton said Tuesday that “it’s just impossible to predict” how the coronavirus will ebb and flow.

After Sept. 15, Kelly will again have the power to order businesses closed and limit gatherings. But she will only be able to close businesses for up to 15 days, and must first consult the State Finance Council, a body made up of legislative leaders and chaired by Kelly. Any further closures require approval from six of the eight legislators on the council.

Even then, county leaders can still vote to opt out of any statewide order.

Kelly’s office didn’t immediately respond to questions Tuesday. Clint Blaes, a spokesman for Republican Attorney General Derek Schmidt, said his office couldn’t speculate on what orders Kelly may issue or how the law would apply.

“I was against it. I didn’t like it,” Rep. Jim Ward, a Wichita Democrat, said of House Bill 2016. Still, Ward and a large majority of lawmakers voted in favor of the bill. It passed the House 107-12 and the Senate 26-12.

Kelly made clear she needed the ability to declare emergencies and access federal resources, Ward said. The compromise preserves both of those components of the pandemic response.

“I said, ‘I can’t argue with you,’” said Ward, who sits on the House health committee. “She’s in the room, she knows what she has to have and if this is the best deal she can get.”

Rep. Brenda Landwehr, a Wichita Republican who chairs the House health committee, said Kelly needs to quit complaining about the bill.

“For some reason, every press conference she moans and groans about the Legislature,” said Landwehr. “HB 2016 was a compromise bill with her (approval). Until she agreed to the pieces in there and the Senate and the House, that bill didn’t move.

“So I don’t know what she’s complaining about or why she’s complaining, because she signed it.”

Kelly on Monday stressed that House Bill 2016 was a compromise necessary to protect her ability to offer counties supplies and assistance in the fight against COVID-19. She said she “couldn’t risk” that going away.

“If I had to weigh being able to help the counties versus being able to mandate the counties, I felt it was more important to go ahead and make that compromise,” Kelly said.

Cities, counties hold power

Kelly’s apparent inability to order a fresh round of business and gathering restrictions means a patchwork of local rules will continue to flourish for several more weeks. While a few counties have set new limits (Douglas County has closed bars, for example), many have not.

Sedgwick County offers a case study in the fragmented nature of the response to coronavirus since HB 2016 passed.

In early July, the County Commission balked at a mask mandate, choosing instead to make a recommendation that people wear masks. Then the Wichita City Council held a special meeting on the Friday before the Fourth of July holiday and passed an ordinance mandating masks.

Wichita is about 75 percent of the county’s population, so masks were required in the city, but only recommended in the unincorporated county and suburban cities.

Last week, the county went through a three-step process to add a mask mandate and close bars and nightclubs to cut down on the spread of the virus by the late-night party crowd.

On Tuesday, the county Health Officer, Dr. Garold Minns — also dean of the University of Kansas School of Medicine in Wichita — announced an order to close bars and clubs and to put a midnight curfew on restaurants serving alcohol.

The next day, the commission removed the restaurants from the order, then reversed course at a special meeting Friday and added them back after realizing that most of the night spots in Wichita’s popular Old Town district are actually licensed as restaurants.

Commissioner David Dennis called HB 2016 a mixed bag.

He likes the local autonomy, but also worries about the spread of the virus among people who cross county lines every day to work, shop or entertain themselves in Wichita, the economic and employment hub of south central Kansas.

“I don’t know if statewide is the answer, because we’ve still got a couple of counties that don’t have any cases, so statewide mandates are kind of a problem,” he said.

But the counties around Wichita, “We’re all inter-related,” he said. “If there was some way to have a regional idea of what we can do, it would work better than county-by-county.”

In Sumner County, just south of Wichita, the rules are looser.

There’s a county limit of 60 on mass gatherings and recommendation that people wear masks when appropriate.

But the chairman of the County Commission, John Cooney, says masks are ineffective and claimed he can cite 43 case studies going back to the Spanish Flu pandemic of 1918 to prove it.

He disputed Kelly, who on Monday called out the county for a rise in cases over the weekend.

Cooney said the recent spike was caused by only two individuals who knew they were sick but still went to 4th of July events.

Most of the county’s other cases have been imported by residents who work in health care, mainly in Sedgwick County, he said.

“Every county needs to make their own decisions, so I applaud the House bill 2016 because that truly does give the voice back to local constituents,” he said.

And those constituents overwhelmingly oppose strong mandatory health orders, Cooney said.

“There are the ones out there who say I’m reckless and I’m going to kill everybody, but I am the voice, I’ve been elected to represent the people,” he said. “So far it’s been 10 to one saying ‘You’re doing what I elected you to do.’”

This story was originally published July 28, 2020 at 5:00 PM with the headline "Kansas can’t close businesses, limit crowds to fight coronavirus for seven more weeks."