In another apparent abuse of the rule of law, Kansas Governor Laura Kelly insists — contrary to the advice of the top law enforcement officer of the state — that counties may not opt-out of her school mask order, requiring masks and other measures in schools.

In a meeting of the State Finance Council July 23, House Majority Leader Dan Hawkins said he believed that House Bill 2016, passed by the Legislature in June that explicitly gave counties the power to opt-out of the governor’s executive orders in response to conditions on the ground — or adopt less stringent protocols — extended to schools as well.

“I’m not trying to argue with you,” Hawkins said. “But … (House Bill) 2016 … says they do have that ability and you said they didn’t.”

Kelly insisted districts do not because her order applies to schools, not counties.

However, the law does not make that distinction. It gives county commissions the authority to issue health orders specific to that county, which presumably would apply to any entity within the county — including school districts.

Legislators request a formal opinion

This week, a group of 22 GOP lawmakers sent a letter to Kansas Attorney General Derek Schmidt asking for a formal opinion on the governor’s executive order.

They requested Schmidt “issue an opinion regarding the authority of county commissions to issue public health orders that include provisions that are less stringent than the provisions of an executive order effective statewide regarding public and private schools.”

In particular, the signatories also asked Schmidt to give an opinion regarding “the authority of county commissions to impose less stringent requirements than, or opt-out completely from, the provisions of Executive Order 20-59 (“EO 20-59”), as well as the provisions of proposed Executive Order 20-58 as considered and ultimately rejected by the State Board of Education.”

While Schmidt has not, as of this writing, issued a formal opinion, he told the Associated Press July 23 that counties do — in fact — have that authority.

“It’s an odd position that the administration has taken that their order is somehow not subject to county opt-out the way all their other orders are,” Schmidt said. “Local school districts have the constitutional authority to opt-out.”

Schmidt also said he warned Kelly her school mask order was subject to local override before she issued it, yet Kelly continues to insist no one may opt-out — and oddly accuses Republicans and Schmidt of forgoing their duty by upholding the rule of law (although she didn’t quite frame it that way).

“His comments further demonstrate that he and Republican leadership have abdicated their duty to serve the people of Kansas during the worst public health crisis in a century — and instead, put the burden back on local communities,” Kelly told AP in response to Schmidt’s stance.

Legislators react

Kansas House Rep. Kristey, (R-Agusta), said the comments by the AG prompted her and her colleagues to send the letter.

“With Governor Kelly denying the effects of the law and once again overstepping her authority, we felt it was necessary to get a written opinion from our Attorney General to provide some clarity for local governments confused between what the law says and what the Governor says,” Williams said in an email.

Kansas House Rep. Sean Tarwater, (R-Stillwell), who also signed the letter to Schmidt, noted that Johnson County Schools have all postponed the start of school this year — as the local boards have the authority to do — but noted students have had little to no instruction since Kelly closed schools on St. Patrick’s Day.  He says many parents in Johnson County are either moving their children to neighboring districts or trying to get their students admission to private schools.

“A few constituents have moved their kids to Barstow and Rockhurst, who will open on time,” Tarwater said. “The phones are ringing off the wall at private schools and the appetite for vouchers has never been greater.

“If the number of emails, demanding that I do something about this are any indication,  I would bet that all the local school boards will turn over next election”

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