Last-ditch effort to lift Johnson County stay-at-home order May 4 splits county commission

County Commissioner Mike Brown pushed for a reopening of many non-essential businesses on May 4. File photo.

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A last-ditch effort to end the extra week of Johnson County’s stay-at-home order failed late Friday afternoon after a heated battle between two factions of the county commission.

The commission at first voted unanimously to table its own business reopening guidelines in favor of those issued by Gov. Laura Kelly, saying a different set of rules for the county would create too much confusion.

All that harmony was upended soon after, when Commissioner Mike Brown moved that the commission, acting as board of health, set a reopening start date of May 4 and let a judge decide which should stand  – the one set by elected officials or the May 11 one ordered by Joseph LeMaster, MD, MPH, the county’s public health officer .

The discussion that followed pitted the elected officials against the doctor they appointed as public health officer, with two of the most vocal critics of the May 11 stay-home extension suggesting that LeMaster’s decision was itself motivated by a political desire to line up prettily with other health directors in the metro. At times the discussion broke down as commissioners heatedly talked over each other.

“This is absolutely all about pretty. This is not about science. This is not about data, this is about reaction out of fear and this is about doing everything we can apparently to align with all of the other health officers,” Brown said. “I’m not interested in their club. I’m not interested in their pats on the back. What I am interested in very much is our economy getting open and getting this thing rocking and rolling again.”

Brown and Commissioner Steve Klika voiced their displeasure that the Johnson County stay-home order is lasting a week longer than the statewide one. Both said they’ve received more than 300 emails or calls apiece, with some callers so anguished at losing their livelihoods that they are crying over the phone.

LeMaster has said previously that the extension is necessary because some other counties in the metro area do not have as good an outlook at flattening their COVID-19 curves, and travel across county borders is common. He said keeping the reopening close to the same could discourage an influx of customers into Johnson County from elsewhere, where the disease is spreading, and would allow the health department to do more testing and contact tracing before business begins to resume.

LeMaster, who attended the meeting, was asked by Brown to withdraw the extension he issued earlier this week.

“I will not,” he replied. Those were the only words he uttered for the hour-and-forty-minute meeting. He was not available Friday to respond further.

From there it became a question of legalities and powers. LeMaster, as health officer, has statutory authority to issue the public health order, but it was less clear that the commissioners could rescind it, advised Cindy Dunham, the board’s legal counsel. Nothing in the state law specifically gives that authority, she said.

Brown argued that his motion was not to rescind but to set its own separate – and conflicting – date.

“If it takes a judge looking at this to make a decision, then that’s what needs to happen,” Brown said.

Brown referred to earlier statements from health officials that once the disease began to spread widely, people should assume everyone has it. “If you are sick, you are vulnerable, you have any condition that is underlying, you should not go outside.” Opening on May 4 would not force anyone to leave the house, he said.

Commissioners Becky Fast and Janeé Hanzlick pushed back, saying the resulting lawsuit would create confusion and there would be no telling how long it would take to get a ruling by a judge, or if it could be decided before the week was up.

LeMaster had talked about an uptick in serious complications that can evolve from the coronavirus. Fast said the board had to keep such issues in mind.

“To minimize it it’s just disappointing to me. Until we have the testing we do not know where it’s at in our district,” she said.

Hanzlick said it would be irresponsible for the county to move forward in allowing more exposure without a firmer foundation of scientific data.

The commission eventually voted Brown’s idea down, 4-3, with commissioners Fast, Hanzlick, Jim Allen and Chairman Ed Eilert voting against and Klika, Brown and Michael Ashcraft voting in favor.

Prior to that, the commission decided to set aside the reopening plan that had been fashioned by a special task force and abide by the governor’s. Under Kansas law, the statewide guidelines are the minimum in restrictiveness. Counties can set more restrictive rules, but can’t write reopening plans that are less strict than the governor’s.

Although they were very similar, the rules written by the task force would have been less restrictive, had they been allowed to stand.

The biggest difference between the two plans has to do with nail and hair salons, gyms and outdoor and sports courts. Johnson County would have allowed them to reopen with restrictions during the earliest phase, but they are not included in the statewide plan until the second phase.

Moving from one phase to the next depends on statistics showing the COVID-19 spread is being controlled in both plans, but the Kansas plan sets specific dates for when those phases could begin. For instance, the second phase could not begin earlier than May 18, the third phase June 1 and the fourth phase June 15.

Both plans have four phases. Here’s a look at the statewide plan.