UPDATE: The Governor signed SB 14 into law today, Jan. 25, extending the state of emergency declaration through March 31.

When Rep. Pat Proctor, a Leavenworth Republican, casts a vote on whether to extend the state’s COVID emergency declaration, he will be thinking about the families of small business owners and their employees who were decimated by the lockdowns. 

When Gov. Kelly’s issued orders closing restaurants and small retail establishments to flatten the curve, Proctor, a restaurant owner himself, and others worked to help those who lost their incomes during the weeks that followed. What he saw stunned him. People were shell-shocked, he said.

“One day, they were earning a good living and able to put food on the table, and pay the mortgage, and feed their families, and the next, they were ruined,” Proctor said. “They had no idea how they were going to pay the bills next week or put food on the table.”

Members of the Senate debated Senate Bill 14 last week. The House will debate similar legislation, House Bill 2048, in the near future. Both proposals seek to extend the state’s emergency declaration through March 31. However, the extension is causing heartburn for some lawmakers who worry there’s no end in sight to what were supposed to be temporary measures.

Disaster declaration, executive orders issued mid-March

Gov. Laura Kelly first declared a state of emergency on March 12, 2020 in response to the pandemic, and on March 16, she issued her first related executive order. Since then, Kelly has issued nearly 70 executive orders, most of them related to the pandemic. She closed schools on March 17. Another order temporarily stopped foreclosures and evictions. Other orders expanded telemedicine and temporarily limited licensing requirements in the healthcare field. Another order temporarily reduced motor carrier regulations. An order, issued on March 25, prohibited gatherings of more than 10 people, including legislative meetings, church services, and funerals. She extended it in time for Easter on April 8 and extended it two more times through May 31.  Two churches sued, and the courts eventually intervened and the executive orders regulating church gatherings stopped.

Lawmakers adopted legislation to rein in Kelly’s authority in the waning hours of the 2020 legislative session last May, but Kelly vetoed that bill and called a special session to ensure the continuation of the emergency declaration.

In response, lawmakers adopted HB 2016. The legislative quick-fix provided county and local officials authority to opt out of Kelly’s executive orders. Hence, some counties, like Johnson County, maintain mask mandates — a July 2 Kelly executive order. While other counties, like Osage County, opted out of the mask mandate. HB 2016 and the emergency declaration are set to expire on Jan. 26 and with them, the ability of local officials to reject Kelly’s mandates. 

Senate debates extending COVID emergency declaration

Sen. Kellie Warren, an Overland Park Republican, said SB 14 is a stop-gap measure that gives lawmakers time to repair the Kansas Emergency Management Act (KEMA). Despite a Republican supermajority, Republicans sparred over the proper path to balance executive overreach with returning to a semblance of normalcy.

Sen. Dennis Pyle, a Hiawatha Republican, said legislators should kill the legislation and let the emergency declaration expire.

“I think right here today is a good opportunity for us to end the emergency declaration on January 26th,” Pyle said. “…This has been going on and on and it’s going to continue going on and on and on.”

However, lawmakers worry that without the extension, counties will not be able to exempt themselves from future Kelly orders related to the pandemic.

Senate President Ty Masterson said while he supported Pyle’s intention of ending the emergency, the effect would be the opposite.

“This would be killing a bill that expands and extends the limitations that were imposed on the executive,” Senate President Ty Masterson said. “We all know what has happened in this last year was not the intention of the language of this act… I think the intention is correct, but the implementation is 180 degrees from the intention.”

Efforts to kill the bill fail

By law, a disaster declaration can last no more than 15 days without the consent of the Kansas Legislature via a resolution. The State Finance Council can extend that another 30 days. In a formal opinion, Attorney General Derek Schmidt wrote that state law is “silent as to the number or duration of any extensions that may be accomplished by concurrent resolution of the legislature.”

Pyle told Senators that if they allowed the emergency declaration to expire on Jan. 26, Schmidt’s opinion would deter Kelly from issuing the same order.

“The AG has an opinion that says the Governor is going to be in hot water,” Pyle said. “…It’s been 10 months. People need to get back to the normalcy of life.”

While Pyle is correct, Governor Kelly has shown she will ignore Attorney General opinions if she disagrees with the conclusion.  An October 2019 opinion from Schmidt’s office said the Governor and her revenue department’s imposition of sales tax on all out-of-state purchases was in violation of the U.S. Supreme Court ruling on Wayfair; Kelly disagreed and did it anyway.

The emergency declaration frees up matching federal relief funds, and Senators worried that that potential funding stream would dry up without a continuing disaster declaration. Pyle said legislators place federal funds above the interests of Kansans.

“If we have been milking dollars by keeping our people under an emergency declaration for that sole interest, that is a problem,” Pyle said.

Pyle’s request to kill the bill garnered only five votes. Instead, the Senate agreed to extend the emergency through March 31. House consideration is imminent. When it reaches the House floor, Proctor says he’ll vote to extend the measure if it includes language that prohibits the Governor from closing businesses and churches.

“I’m just of the mind that the disastrous lockdown we had last year, we cannot have a repeat of that. It pains me to vote to extend the emergency declaration,” Proctor said. “I understand why we’ve got to do it.”

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