Douglas County’s health director backed off a mask mandate for Omaha on Friday after the Nebraska Attorney General’s Office challenged her ability to implement one.
Adi Pour, at a Friday press conference, cited “legal disagreements” between the state and the Omaha City Attorney’s Office.
Pour had been moving toward implementing an indoor mask mandate under her authority within Omaha city code. The Douglas County Board of Health on Monday voted to support her move.
But Pour said that a disagreement had surfaced since then and led her to pull back to avoid a legal fight.
Nebraska Gov. Pete Ricketts has questioned Omaha’s and Lincoln’s abilities to implement local mask requirements. When asked if Ricketts had contacted her, Pour responded passively, saying it was in the last 72 hours that the disagreements occurred.
“There was a legal decision,” Pour said.
Ricketts has said repeatedly that he opposes mask mandates and has instead encouraged Nebraskans to wear them voluntarily. Pour has said that she would require approval from the state to issue a countywide directed health measure like those that closed bars and restaurants earlier in the pandemic.
Instead, Douglas County health officials, working with city officials, pursued a different path, seeking to exercise Pour’s powers under city code to issue orders in public health emergencies.
Omaha Mayor Jean Stothert said the Attorney General’s Office contends state law trumps city code, even though the attorneys in the city’s Law Department think the City of Omaha is on solid ground if Pour wants to implement a mask order.
“That was basically the issue,” the mayor said.
The Nebraska Attorney General’s Office issued a statement Friday saying the office’s role “is to evaluate the law, not create or direct public health policy. Under Nebraska law, the Douglas County Health Department may only take measures ‘to arrest the progress of’ infectious disease ‘with the approval of the (Nebraska) Department of Health and Human Services.’ Nebraska law contains an exception for the Lincoln-Lancaster County Health Department,” the Attorney General’s Office said.
Ricketts, as the state’s chief executive, oversees the Department of Health and Human Services.
Absent a mask mandate, Douglas County and Omaha officials pleaded with people who refuse to wear masks to change their habits for the good of children, people with compromised immune systems and the elderly, particularly as the start of school approaches.
Health experts from the University of Nebraska Medical Center, who attended the press conference, expressed frustration at the development. They called the community to task for the continued coronavirus spread.
The health experts also outlined the growing body of evidence indicating that masks work to slow the spread of the virus, especially when combined with social distancing and proper hand hygiene.
Said Dr. Mark Rupp, chief of the infectious diseases division at UNMC: “Personally, I’m very disappointed that we are not here before you to announce a masking mandate for Omaha and Douglas County.”
Rupp said he’s frustrated that the community could not overcome “the perceived political threats, potential legal challenges or logistical hurdles to mandate mask usage in our locality.”
Dr. Kari Neemann, a UNMC/Children’s Hospital & Medical Center physician who serves as an adviser to the Douglas County Health Department, said Omaha has had pediatric patients contract COVID-19 through community spread of the virus. Two recently were admitted to Children’s in respiratory distress, and one was placed on a ventilator in the intensive care unit.
“Our community failed these families,” Neemann said.
Neemann said her son was exposed to the virus while in day care and is quarantined at home after exposure.
“Our community failed him and it failed his classmates,” she said.
Schools soon will be opening. While most children who contract COVID-19 won’t become seriously ill, many of the teachers and support staff, based on their age and other health conditions, will be at risk for more severe disease. That also goes for parents and grandparents at home.
To open schools safely, Neemann said, “we need to get our community transmission down.”
John Lowe, a UNMC assistant vice chancellor for Inter-professional Health Security Training and Education, said two UNMC studies indicate that infected people, even those who haven’t yet developed or don’t develop symptoms, can expel the virus into the air when coughing and talking.
People have been taught for years to cover their mouths when coughing, he said. This new information shows the value of covering one’s mouth and nose while talking.
Pour said she will continue to review data every day and left open the possibility of revisiting her decision. “But for now,” she said, “I have to trust everybody in this community to do the right thing moving ahead.”
When asked why she didn’t simply issue a mandate and let the courts resolve the legal issue, Pour said she considered it but opted not to take that path.
“My focus now needs to be on public health and not (getting) caught up in potential court litigation,” she said.
Stothert said she had talked to the president of the Omaha City Council, Chris Jerram, about drafting a council resolution that would strongly support the wearing of masks in public places.
The resolution would be nonbinding.
The council could pass a mask ordinance, but Stothert said that would take weeks to follow the process and bring it to implementation.
The council could waive the ordinary legal requirements to speed up the process. But that would take six votes, Stothert said, adding that she’s not sure the council has six votes in favor.
“Right now, we really need to be responsible and do the right thing,” Stothert said.
Stothert also noted that Lincoln, which issued a mask mandate several weeks ago, has a legal “carve-out” that puts it in a different situation. The Lincoln-Lancaster County health director is hired by and reports to Lincoln’s mayor.
In Douglas County, the health director is hired by the Douglas County Board of Health. Omaha’s city code makes the county health director the city health director. During an epidemic, the health director can issue orders to limit diseases in the city.
Chris Rodgers, the president of the county health board, said he disagreed with Pour’s decision but is glad she left the door open for a masking requirement.
“We knew this was going to be hard,” he said. “We think this is the right thing to do — at least I do.”
Councilman Vinny Palermo, who wasn’t at the press conference, said he was “extremely disappointed” in Pour’s decision not to mandate masks. “It is reckless, for parents and teachers especially,” he said. “If the numbers are bad now, wait until school starts. It will be a wildfire that we wish we would have prevented.”
Palermo saw the announcement on his phone while waiting in his garage for someone to pick up boxes of masks. He and Douglas County Board member Mike Boyle have worked with members of the South Omaha community to distribute 65,000 free masks from the Douglas County Health Department in recent weeks. They’re getting 50,000 more and will keep distributing them.
More people are wearing masks voluntarily, Palermo said, but a mask mandate would lead to many more people taking that precaution.
Palermo said he would support an emergency ordinance for a mask mandate.
Dr. Gary Anthone, Nebraska’s chief medical officer and a participant in the press conference, urged people to wear a mask, keep their distance from others and wash their hands.
“We know that Nebraskans will again step up and do the right thing like they did in the past, and together as Nebraskans we’ll beat this virus,” he said.
Said Pour: “Please everyone in this city, in this county, do the right thing.”
World-Herald staff writer Christopher Burbach contributed to this report.
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