GOP senators eager to answer COVID-19 with explicit Kansas emergency management law

Legislation seeks to tighten oversight of governors dealing with disaster

By: - February 24, 2021 6:07 pm
Sen. Kellie Warren, R-Leawood, opened work Wednesday in the Senate Judiciary Committee on a bill overhauling the state's disaster management law to restrain Gov. Laura Kelly and influence how counties, cities, schools respond to disasters such as the COVID-19 pandemic. (Noah Taborda/Kansas Reflector)

Sen. Kellie Warren, R-Leawood, opened work Wednesday in the Senate Judiciary Committee on a bill overhauling the state’s disaster management law to restrain Gov. Laura Kelly and influence how counties, cities, schools respond to disasters such as the COVID-19 pandemic. (Noah Taborda/Kansas Reflector)

TOPEKA — A new bill adjusting authority of state and local officials to manage Kansas disasters was viewed Wednesday by Republican senators as a high legislative priority, but several pushed for amendments clarifying what constitutes legitimate science, ways of punishing vaccine line jumpers and how higher education should be allowed to deal with emergencies.

The Kansas Senate bill pieced together primarily by the office of Senate President Ty Masterson would build upon changes to the Kansas Emergency Management Act passed during a special session in 2020. The original law was developed decades ago to deal with floods, prairie fires and tornadoes, but emergence of COVID-19 forced the Legislature to modify the statute to conform to the ongoing once-a-century threat to public health.

Nearly one year into the pandemic, with the economy still reeling and demand high for scarce vaccine, the GOP-led Legislature has made no secret of eagerness to solidify restraints on Gov. Laura Kelly and her Cabinet’s ability to compel emergency action by individuals, schools and businesses. The clock is ticking because provisions of the existing disaster management law expire March 31.

Sen. Mike Thompson, R-Shawnee, said reform of the Kansas Emergency Management Act should include new definition of “accepted science” because too much deference was given in Kansas to the Centers for Disease Control and Prevention during the pandemic.  (Sherman Smith/Kansas Reflector)

Under Senate Bill 273, the power of the governor, city and county governments, local health officers and K-12 school boards to deal with emergencies would be framed in ways that limited government’s opportunity to force Kansans to toe the line.

“Ultimately, the power and authority rests with Kansans as to how we could get through this,” said Sen. Kellie Warren, a Leawood Republican and chairwoman of the Senate Judiciary Committee.

Sen. Mike Thompson, a Shawnee Republican on the judiciary committee, said the pandemic illustrated the necessity of reforming the emergency management act in Kansas. He said the law opened the door to outsized influence of the U.S. Centers for Disease Control and Prevention and the Kansas Department of Health and Environment as people struggled to cope with COVID-19. State and county health officers led people astray by touting CDC guidance based on selective government interpretation of science, he said.

“There has been plentiful additional information provided by other research doctors with peer review studies that we never considered,” said Thompson, who believes the governor overreacted to COVID-19 by closing schools and nonessential businesses. “We’ve got to be careful going forward that we do not narrow our scope into a rubber stamp of whatever the CDC says.”

Since March, KDHE reports that testing revealed 292,000 people in Kansas had been infected by COVID-19 and that 4,724 people with the coronavirus had died.

The Senate bill ought to be amended to define power of universities, community colleges and technical colleges to close their campuses or shift to online instruction in emergencies, said Sen. Molly Baumgardner, a Louisburg Republican on the judiciary committee.

Baumgardner said the bill justifiably sought to provide greater legislative oversight of a governor’s disaster orders and make clear municipal governments could take less forceful action that recommended by a governor. The legislation, she said, fell short of addressing problems in the distribution of coronavirus vaccine by KDHE. For example, she said, vaccines were directed first at health care workers. News reports alleged Wyandotte County psychiatrist Micaela Wexler got away with with helping friends or acquaintances get shots before authorized.

“We know that we had a psychologist in Wyandotte County that signed up 30 different individuals. They were friends. Thirty different individuals went in and jumped the line if you will to get a vaccination,” Baumgardner said.

Sen. Rick Wilborn, R-McPherson, said the emergency management reform bill presented Wednesday to the Senate Judiciary Committee was the collaborative result of work handled by the Senate leadership office. (Sherman Smith/Kansas Reflector)

Sen. Dennis Pyle, a Hiawatha Republican, asked questions about a proposed 10-member House and Senate committee that would pass judgment on a governor’s executive orders and about civil fines issued by some local governments to people not wearing a mask. He also asked Warren about who drafted the bill — information often concealed from the public.

“Someone requested this language,” Pyle said. “Did it come from an agency? Did that come from a legislator? Did it come from leadership?”

Warren deferred to Sen. Rick Wilborn, the McPherson Republican who was involved with putting the bill together. Wilborn said the bill was the product of discussion among Senate GOP leaders, which would include Masterson and Senate Majority Leader Gene Suellentrop, as well as members of the Senate president’s staff, including former state Sen. Eric Rucker.

“It was an amalgamation of leadership,” Wilborn said. “It was an amalgamation of looking at the bill we passed last year, oversights that were made last year.”

Under the Senate measure, a governor couldn’t respond to an emergency by altering the criminal code, limiting religious gatherings, seizing ammunition or suspending firearm sales, adjusting election laws or taking action interpreted as preferential to abortion clinics.

The governor, according to the bill, could issue a state disaster declaration good for 15 days that could be extended in 30-day increments by the Legislature. The full Legislator or the new joint committee of House and Senate members, ideally with a representative from each of the four congressional districts, could vote on extensions. For the immediate future, that committee would have eight Republican and two Democratic members.

The executive orders issued by a governor in response to disasters would be submitted to the state attorney general for review. The attorney general would analyze executive orders in terms of adherence to state law and the constitution. The document would be made public.

“I just want to confirm,” said Sen. Ethan Corson, a Johnson County Democrat on the judiciary committee. “The attorney general provides an opinion to the governor, but that opinion in and of itself doesn’t have any authority. It doesn’t have an effect on the order.”

Jay Hall, general counsel to the Kansas Association of Counties, requested the Kansas Legislature delay implementation of a property tax reform bill for one year until Jan. 1, 2022. (Kansas Legislature screenshot/Kansas Reflector)
Jay Hall, general counsel to the Kansas Association of Counties, asked the Senate Judiciary Committee to be aware the bill restricts county health officers in ways that might undermine response to non-pandemic issues. (Screen capture/Kansas Reflector)

In addition, the new legislative committee would vote on executive orders with a simple majority prevailing. This committee could force government officials to testify, including the governor, adjutant general, KDHE secretary and members of the state Board of Education. Meanwhile, executive orders of a governor could be revoked at any time by the Legislature.

Under the bill, a county commission could adopt a less stringent mandate than what was recommended by a governor and approved by legislators. A city or county official would have to base decisions on “accepted scientific” justification. A city or county couldn’t issue orders inhibiting movement of people for religious, civic, business or commercial activities. A city governing body would be able to revoke any order issued by the municipality’s health officer.

Local school boards would possess veto power over any order closing public schools or requiring instruction by means other than full-time, in-person teaching.

Jay Hall, policy director of the Kansas Association of Counties, told the Senate committee to be careful not to derail the ability of county health officers to respond to routine health challenges such as flu outbreaks. Their work isn’t restricted to COVID-19, he said, and the proposed bill could handicap officers performing non-pandemic duties.

“They need some of these powers to carry out their normal duties,” Hall said. “If there were to be, for example, a measles outbreak that is much more localized, the local health officer needs to be able to pass on certain orders … in order to control the spread. That’s really our concern.”

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Tim Carpenter
Tim Carpenter

Tim Carpenter has reported on Kansas for 35 years. He covered the Capitol for 16 years at the Topeka Capital-Journal and previously worked for the Lawrence Journal-World and United Press International. He has been recognized for investigative reporting on Kansas government and politics. He won the Kansas Press Association's Victor Murdock Award six times. The William Allen White Foundation honored him four times with its Burton Marvin News Enterprise Award. The Kansas City Press Club twice presented him its Journalist of the Year Award and more recently its Lifetime Achievement Award. He earned an agriculture degree at Kansas State University and grew up on a small dairy and beef cattle farm in Missouri. He is an amateur woodworker and drives Studebaker cars.