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Debate emerges over city authority to issue mask mandates as Ricketts resists state requirement

Debate emerges over city authority to issue mask mandates as Ricketts resists state requirement

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Gov. Pete Ricketts speaks remotely during a press conference on Tuesday. 

LINCOLN — Local and state leaders disagreed Monday about whether Nebraska cities and towns can issue mask mandates to control the spread of COVID-19.

Several communities across Nebraska are discussing a possible mask mandate, including Scottsbluff, Kearney, Grand Island and Ralston.

State Sen. Justin Wayne of Omaha, an attorney and the chairman of the Legislature’s Urban Affairs Committee, said Monday that state law gives cities of all sizes the authority to “make regulations to prevent the introduction and spread of contagious, infectious or malignant diseases into the city.”

He argued that the law would clearly allow for a city ordinance mandating the use of face masks or face coverings. If not, he said, cities and towns could issue a mandate under their authority to regulate nuisances.

Wayne noted that many Nebraskans are pleading for state and local leaders to take steps to slow the spread of COVID-19. Since Gov. Pete Ricketts has continued to resist calls for a statewide mask mandate, Wayne urged local leaders to step up.

“I believe that individual cities in Nebraska have the authority to take decisive action and follow the lead of Omaha and Lincoln,” he said.

Both cities require mask-wearing in most indoor settings, other than residences. In Omaha, the City Council passed an ordinance to that effect. In Lincoln, the requirement is part of a directed health measure imposed by the Lincoln-Lancaster County Health Department. The department has a special status under state law and does not have to seek state approval for its actions.

Related: COVID surges in Dakotas are warning of what may happen in Nebraska, Iowa

At a Monday press conference, Ricketts said Omaha could impose a mandate because the city is one of two in Nebraska organized under what is called a home rule charter. The other is Lincoln.

The governor said he does not believe state law automatically grants that authority to other cities and towns. However, he advised them to check with their own legal counsel.

Rick Hoppe, Ralston’s city administrator, said Monday that he has asked the city attorney to evaluate the statutes highlighted by Wayne.

Ralston’s attorney, Don Ficenec, originally concluded that the city could not pass a mask mandate based on an interpretation of pandemic guidance by the Nebraska Supreme Court, Hoppe said. Officials will provide the Ralston City Council with up-to-date information as soon as possible, Hoppe said.

“We’re obviously moving as quickly as we can because the pandemic doesn’t really wait,” Hoppe said.

Mayor Don Groesser said last week that he and some council members are interested in requiring masks in the city.

Ralston is in the process of creating a City Board of Health that must be approved by the City Council, Hoppe said. Its members would be Groesser, Hoppe, Police Chief Marc Leonardo, Council President Jerry Krause and Alex Dworak, a Nebraska Medicine doctor who lives in Ralston.

Related: Nebraska teachers union calls on Ricketts to close bars, mandate masks, limit gatherings

On Saturday, Papillion Mayor David Black said that city had not pursued a mandate because Nebraska law does not give cities the authority to issue directed health measures — the tool used by state and local health officials to protect public health.

Elsewhere in the state, the Kearney City Council on Tuesday will hold an emergency meeting to consider a mask ordinance, the Kearney Hub reported.

The ordinance, which includes exceptions similar to ones in Omaha’s mandate, would take effect three days after passage, a city attorney said.

Grand Island Mayor Roger Steele on Monday said he expects to receive a recommendation Tuesday from the Central District Health Department that masks be required, television station KSNB reported.

Steele said he would put a mask requirement on next Monday’s City Council agenda.

Late last week, top officials at a regional medical center in Scottsbluff County sent a letter asking nearby city and county leaders to consider a mask mandate.

The Scottsbluff Star-Herald reported over the weekend that local leaders from Scottsbluff, Terrytown and Gering said they were exploring options but declined to make any policy announcements.

Ricketts has repeatedly refused to consider a statewide mask mandate, arguing that he doesn’t want to use government power to force mask use and that doing so would breed resistance. He also has barred local public health departments from establishing mandates in their areas.

He sounded the same theme on Monday, despite mounting calls for a mandate from health care professionals, teachers and other citizens.

“We’re going to ask people to use masks in situations where masks are appropriate,” he said, adding that masks are only one tool that can be used to slow the pandemic. “Please, everyone be a part of the solution.”

On Monday evening, Iowa Gov. Kim Reynolds announced a mask mandate that applies when people are indoors for 15 minutes or longer and unable to maintain 6 feet of social distance, with some exceptions. Reynolds’ order also limits indoor events to 15 people and outdoor gatherings to 30. Included are wedding and funeral receptions, family gatherings and conventions. Bars and restaurants must close by 10 p.m.

Nebraska’s current state health measures include a limited mask mandate, which applies in businesses when staff and patrons are within 6 feet of each other for at least 15 minutes.

Ricketts himself is in quarantine after he and his wife had dinner at his Omaha home with a person who later tested positive for the coronavirus. The governor said he was tested Friday through Test Nebraska and was negative for the virus.

Over the weekend, Dr. Bob Rauner, a Lincoln physician who has been tracking coronavirus cases in the state, said more restrictions are needed to avoid a “crisis” that would overwhelm the state’s hospitals.

Last week, Ricketts announced that he would order further restrictions on elective surgeries, public gatherings and bars and restaurants if hospitalizations climb.

He said Monday that 914 patients are being treated in Nebraska hospitals for the virus, which represents about 20% of all staffed hospital beds. Restrictions will tighten if that figure rises to 25% of staffed beds.

Zoe Olson, the head of the Nebraska Restaurant Association, also spoke at the Monday’s briefing, saying that eateries in the state have seen a 30% decline in revenue because of COVID-19. She and the governor asked Nebraskans to continue to support local businesses by ordering takeout or delivery meals.

World-Herald staff writer Paul Hammel contributed to this report.

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