Kansas Legislature passes rewrite of emergency management powers

TOPEKA — Kansas lawmakers on Tuesday passed a bipartisan reform of the state’s emergency management law, installing new checks on powers of the governor, health officers and school boards to manage the COVID-19 pandemic and future disasters.

The Senate adopted the legislation by a 31-8 vote hours after it won approval in the House by a 118-5 vote. The measure now goes to Gov. Laura Kelly for consideration.

In addition to modifying the decades old Kansas Emergency Management Act, the new legislation extends the current disaster declaration from March 31 to May 28. The changes to KEMA were inserted into Senate Bill 40 — which previously dealt with the Kansas Department of Agriculture’s Division of Conservation.

Republicans furious with the governor’s decisions to close schools, businesses and churches and require face coverings wanted additional limits on her powers. Competing plans emerged in the House and Senate before a compromise was reached.

“It strikes a balance between government response and individual liberties, individual freedoms,” said Sen. Kellie Warren, R-Leawood. “It’s not perfect. Neither side of the debate got everything that side wanted. But again, it’s a good resolution to provide balance.”

The new law would allow anyone who is aggrieved by a governor’s executive order, school board policy, or directive from a county health official to file civil action in district court and receive a hearing within 72 hours. The court is required to make a decision within seven days, and must side with the individual who filed the complaint unless the government action is narrowly tailored to respond to a disaster and uses the “least restrictive means” to do so.

The State Finance Council, which is chaired by the governor, no longer has the authority to override a governor’s executive order. That duty instead falls to the Legislative Coordinating Council, which expands from seven to eight members to ensure a 6-2 GOP majority.

All of the governor’s existing orders would be nullified under the law. She could reissue them with the blessing of Republican leadership.

“Were the governor, frankly, a Republican, we wouldn’t be going through this exercise and finding concessions and finding ways to compromise to have one person who can oversee and help us get through a pandemic,” said Sen. David Haley, a Kansas City Democrat who joined seven Senate Republicans in voting against the bill. “It just comes down to pure politics.”

The law specifies that local school boards alone have the power to limit in-person attendance in public schools because of the threat of COVID-19. County commissions have the authority to amend any statewide order regarding public health to make the order less stringent.

County health officers will have to seek approval from county commissions before issuing orders that involve a mask mandate or restrictions on the size of gatherings, movement of the population, business operations, or religious gatherings.

Also included in the package: The governor can’t take away the right to buy or own a gun or ammunition.

“I think what we’ve done is come together to try to bridge our differences,” said Sen. Ethan Corson, D-Prairie Village. “Ultimately, the end product has been a good workable framework that I think is going to work for Kansans.”

Sen. Mike Thompson, R-Shawnee, expressed concerns that the bill didn’t go further. No unit of government should be allowed to impose a lockdown or mask mandate, he said.

“Since the beginning of this pandemic, we’ve seen an escalating and prolonged suspension and abridgement of many constitutional rights,” Thompson said. “True scientific evidence was overlooked in favor of public health edicts that shifted a number of times during this pandemic, based partially on the whims of unelected officials.”

As of Monday, 4,835 Kansans have died from COVID-19 and at least 298,000 have tested positive for the disease. When the virus first arrived a year ago, the governor ordered schools to engage in remote learning, banned large public gatherings, imposed a statewide stay-at-home order, closed non-essential businesses where social distancing could be problematic, and attempted to close churches. She also banned evictions and issued other protections for Kansans suffering from the economic damage of the pandemic.

She twice issued mask mandates to try to stow the spread before the pandemic ravaged hospitals late last year. During the worst weeks, COVID-19 killed 50-100 Kansans per day.

Sen. Mark Steffen, R-Huthinson, said the governor’s orders last year were unnecessary. A failure to learn from that experience, he said, would be “a sad testament to the nature of human beings.”

“We lost individual freedoms that we shouldn’t have lost because we had the wrong people, from unelected officials making decisions to administrations who flat did not know what they were doing, and then tried to con us into following along,” Steffen said. “So bottom line, this is an individual rights situation for me.”