Kansas counties in charge of COVID-19 restrictions after Gov. Kelly vetoes emergency powers bill

By Stephen Koranda and Jim McLean

TOPEKA, Kansas — Kansas no longer will impose a statewide phased-in reopening plan, Gov. Laura Kelly said Tuesday.

In deciding to veto a bill that would have restricted her powers to respond to the coronavirus, she issued a new emergency declaration.

“This legislation creates more problems than it solves,” Kelly said. She argued it would ultimately delay coronavirus aid from the federal government. “This would only prolong the economic pain of this crisis.”

Kelly’s new order makes her phase-out of the economic shutdown and limits on mass gatherings an advisory guidebook for county officials — not a statewide command.

She also will call the Legislature into a special session on June 3 to extend the new emergency declaration.

The Democratic governor heaped criticism on Republican leaders of the Legislature, lawmakers whom she said made “rushed and haphazard” changes to the law that gave her the emergency powers to impose a statewide shutdown in response to the coronavirus pandemic.

Kelly said the legislation was constitutionally dubious. That meant, Kelly contended, that if she signed the bill, “it would have put the state at risk for additional legal battles.

“More importantly,” she said, “it would have hindered our response to this crisis.”

Republican lawmakers pulled an all-nighter last week to clamp down on Kelly’s authority after weeks of criticism that she overstepped in shutting down businesses and didn’t reopen quickly enough.

That put Kelly in a tough spot, because the extension of her emergency declaration, which expires at 11:59 p.m. Tuesday, was tied to provisions that gave lawmakers more oversight over actions she might need to take in pandemics or disaster situations.

“This new declaration is not ideal,” Kelly said. “It is a direct result of the political games that had been played up to this point.”

Some lawmakers cautioned last week that they were on shaky legal ground because the resolution that brought the Legislature back into session had a midnight Thursday ending date.

“Anything that we do from here on out, we’re going to get sued on,” Republican Rep. Mark Samsel said in the early hours of Friday morning.

On Tuesday, Republican leaders in the Kansas House issued a joint statement after the governor’s announcement saying the sudden change in policy creates “unnecessary confusion about the status of the current disaster declaration, what orders are still in place, and what Kansans can expect going forward.”

Senate President Susan Wagle, who’s clashed most directly with Kelly, said the decision to leave restrictions to county rules makes sense.

“We’ve been saying it all along,” the Wichita Republican said in a news release, “one size doesn’t fit all.”

Kansas has more than 9,200 cases of COVID-19, with 800 people needing hospitalization and 188 people dead. Five counties make up more than half of the state’s cases: Finney, Ford, Leavenworth, Seward and Wyandotte.

While Kelly said she briefed county leaders on a conference call this morning, several counties did not immediately respond to the Kansas News Services’ requests for comment on how they’d move forward. Sedgwick County has called a Wednesday meeting to discuss the changes.

Wyandotte County officials said late Tuesday they will stick the Phase 2 plan set out by Kelly. That will stay in effect until June 8, Mayor David Alvey said.

“No matter what political battles rage at the state level, our fight has been and will continue to be against the novel coronavirus,” Alvey said. “We will restrict, or relax, as much as is necessary to prevent overwhelming first responders and our health care system, while simultaneously working to re-open our community at the appropriate time.”

Dr. Erin Corriveau, Wyandotte County’s deputy medical officer, said the decision focused on the “significant number of residents who are at high risk from a COVID-19 infection.” The county has 1,270 confirmed cases and 72 deaths, according to the health department’s website.

Kelly is calling the Legislature back to Topeka on June 3 to work on the state’s coronavirus response, but lawmakers aren’t barred from taking up other topics. The session potentially gives issues that stalled another chance, like Medicaid expansion and a constitutional amendment on abortion.

Kelly said having some guidelines in place to phase in the reopening of businesses would protect the state from more dire consequences that would follow future surges in the coronavirus outbreak.

Under the legislation she vetoed, she would have needed to seek approval from lawmakers for keeping certain businesses closed, and orders wouldn’t have been enforced with criminal charges, only fines. The legislation also could have given county governments leeway to approve less strict requirements for gatherings and businesses.

Attorney General Derek Schmidt previously said Kelly may not have had the authority to issue additional declarations, though his opinion is not legally binding.

Panels of lawmakers also would have controlled more than $1.25 billion in federal aid. The veto means, for now, the authority to spend that money will stay in Kelly’s administration.

Any new orders related to the coronavirus would have been subject to review by legislative leaders within 24 hours

KCUR reporter Peggy Lowe contributed to this story.

Stephen Koranda is the Statehouse reporter for Kansas Public Radio and the Kansas News Service. You can follow him on Twitter @kprkoranda. Jim McLean is the senior correspondent for the Kansas News Service. You can reach him on Twitter @jmcleanks or email jim (at) kcur (dot) org.

The Kansas News Service is a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio focused on health, the social determinants of health and their connection to public policy. Kansas News Service stories and photos may be republished by news media at no cost with proper attribution and a link to ksnewsservice.org.