Local control dispute brewing over Iowa mask mandates

The refusal of Gov. Kim Reynolds to require Iowans to wear masks in public has prompted at least three cities and a county to adopt their own local ordinances, setting up what could be a legal battle over whether local officials have the authority to impose mask rules in the absence of a governor’s mandate.

Local government control also has become an issue in Iowa as a few school boards have said they may refuse to abide by Reynolds’ demands to send students back to classrooms if they feel it’s unsafe due to coronavirus spread.

So far, a court has not been asked to resolve these standoffs between Reynolds and local officials, but it appears likely as some local mask ordinances are set to take effect on Monday.

Reynolds on Thursday again asserted she believes cities and counties cannot implement mask orders unless she says they can.

“We don’t believe during a public health emergency that the local governments have the authority to supersede what has been put in place at the statewide level by the governor,” she said, adding she’s consulted with the attorney general on the matter.

The attorney general's office in March provided Reynolds with an analysis of home rule in Iowa.

"While cities and counties have police powers to protect the health and safety of their citizens, the state has the authority to declare and coordinate the response to a public health disaster," wrote Assistant Attorney General Heather Adams in a message to Reynolds' legal staff.

However, in June the attorney general's office wrote an informal advice letter on local mask actions to Sen. Zach Wahls. The letter said that if a local regulation isn't preempted by the governor's proclamation, local jurisdictions could adopt regulations “not inconsistent with law and the rules of the state board, as may be necessary for the protection and improvement of the public health.”

Thursday night the Dubuque City Council unanimously passed a mask ordinance that will be enforced beginning Monday.

“I think this is a life and death public safety and public health issue that nobody else has addressed so it depends on us,” said Councilman Rick Jones.

City Attorney Crenna Brumwell told the council that she believed Iowa's home rule constitutional amendment passed in 1968 gives cities power to pass local regulations not inconsistent with state law. She said no analysis has been done to find mask ordinances inconsistent.

The city of Mount Vernon passed a resolution on Tuesday, Muscatine passed an ordinance on July 6 and the Iowa City mayor signed a proclamation requiring face coverings in public places in July.

Supervisors in Johnson County, where Iowa City is located, passed a face covering regulation on Thursday that is scheduled to go into effect on Monday.

“I get that people feel they have freedoms,” The Iowa City Press-Citizen quoted Supervisor Janelle Rettig as saying on Thursday, “but that also means you feel like you have the freedom to drive drunk or to drive a bus on drugs. I mean, sometimes your freedom ends when you can kill other people, and this is that case.”

County supervisors in Story County, the location of Ames and Iowa State University, are scheduled to consider a mask resolution on Tuesday after the county board of health voted last week to recommend a countywide mask requirement.

“With schools and colleges planning to convene this summer and fall, the approach of flu season, and current lack of a vaccine or post-infection immunity, the time to act is now,” the board of health wrote in a letter to the supervisors.

ISU students are returning to campus and the university reported Friday that 66 students moving onto campus housing tested positive for coronavirus.

Supervisor Lauris Olson individually sought the opinion of Frank Feilmeyer, an Ames attorney and former president of the Iowa Municipal Attorneys Association, who said he believes local governments can enact such requirements. Olson paid for the advice personally and provided it to the board.

“It is my conclusion, based on the Iowa Constitution, multiple Iowa statutes, and a considerable body of Iowa case law, that local government does have authority to regulate aspects of public health," he said in a memorandum to the board.

Reynolds has encouraged Iowans to wear a mask when they cannot stay a safe distance from others in public places and she has said businesses, schools, and government officials can require masks inside their buildings.

“I just don’t believe that a one-size-fits-all from a government mandate is the right direction,” she said.

However, her policy requiring local school officials to resume in-class instruction is a state mandate.

Reynolds has interpreted a law passed by the legislature that says learning should be primarily in classrooms and not online to mean schools must be in classrooms for at least 50% of their instruction time this year. She also requires districts to ask the state for permission to send kids home when their county reaches a 15% or higher positive rate for the virus and 10% of students in a school are out sick.

A few districts have said they may not abide by those requirements if they feel local conditions merit sending children home to be safe.

The state's largest district in Des Moines initially planned to begin the year with online learning but is reassessing plans after Reynolds threatened to take disciplinary action against school administrators who defy her. She said he would force districts to make up any instruction days the state hasn't authorized outside the classroom.

__

This story originally published on Aug. 8, 2020, erroneously reported that the Story County supervisors sought the opinion of private attorney Frank Feilmeyer on the matter. It was corrected on Aug. 9, 2020, to say one supervisor, Lauris Olson, sought the opinion individually and paid for it personally, then provided it to the other board members.