The Johnson County Board of Supervisors unanimously approved a resolution mandating the wearing face covering in public to limit the spread of COVID-19 during its meeting on Thursday morning. The resolution requires face masks or face shields to be worn in the same public locations and has the same limited exemptions as the face coverings proclamation issued by Iowa City Mayor Bruce Teague on Tuesday.
Both the resolution and the proclamation were based on a draft resolution the Johnson County Board of Health proposed last week. But the county’s mandate differs from Iowa City’s in one important way: it is not legally enforceable.
“Mayors have different authorities than the county does,” Johnson County Attorney Janet Lyness said during the board’s discussion of the resolution.
The Iowa City proclamation cites home rule provisions in state law that allow a mayor to govern by proclamation when an emergency has been declared. Both Gov. Kim Reynolds and the Iowa Attorney General maintain that cities and counties lack the authority to mandate face coverings because the governor’s public health emergency proclamation does not require face coverings.
But the Iowa City proclamation relies on Iowa Supreme Court decisions and provisions in state law that give cities the power to create regulation that is “more stringent than imposed by state law, unless a state law provides otherwise.” Since neither the governor’s proclamation nor state law prohibit the wearing of face coverings or of cities creating mandates to wear those coverings, the city says its proclamation is legally enforceable and violations of it can be charged as simple misdemeanors.
Even though the Board of Supervisors doesn’t have the same authority to create mandate a mayor does, Lyness explained there is a way to create a legally enforceable mandate at the county level.
“If you wanted to proceed, I think the best route would be to talk to the Board of Health and have them look at passing an ordinance that would then have to be approved by the Board of Supervisors to require this,” she told the supervisors.
According to Lyness, once the mandate would then be legally enforceable “as long as it’s not inconsistent with what the governor or the legislature has done, which at this point I think there’s an argument that I think that it would be consistent and not inconsistent with the governor’s proclamation.”
Supervisor Rod Sullivan said the Board of Health wasn’t able to move to vote on a ordinance at its monthly meeting in July because draft resolution was not included as an ordinance scheduled for a vote in the meeting’s agenda. The Board of Health is expected to pass an ordinance mandating face coverings in public at its meeting in August.
The original language in the draft of the resolution presented to the Board of Supervisors said the county strongly encouraged the use of face coverings in public. During their work session on Wednesday, the Supervisors decided to change it to a mandate, even though they were aware it would not be enforceable.
“What’s the harm in mandating it?” Supervisor Janelle Rettig said during the work session. “If the governor wants to sue us, then it draws publicity to why we want people to wear face coverings. I mean, it’s a global pandemic and it requires leadership and we should be leading on it.”