LINCOLN — The State of Nebraska would have challenged an Omaha mask mandate in court, Gov. Pete Ricketts acknowledged Monday, filling in a key detail in last week’s unexpected turnabout from Douglas County’s health director on a local mask order.
Health Director Adi Pour, at a Friday press conference, cited “legal disagreements” between the state and the Omaha City Attorney’s Office in deciding to drop her push toward a mask mandate. She said the dispute had surfaced only in the previous 72 hours.
Ricketts, at a Monday press conference, said he had several conversations with Pour over the issue. Ricketts said officials in the Governor’s Office and Attorney General’s Office walked through why they didn’t believe she had legal authority to mandate masks.
“If she moved forward, we would challenge that in court,” Ricketts said.
County Board member Chris Rodgers, who serves on the County Board of Health, said Pour received a call from the state last Tuesday night, challenging her authority on masks.
The next day, officials from the Attorney General’s Office talked by phone with Pour, Mayor Jean Stothert and attorneys from the City of Omaha and Douglas County.
Officially, the legal dispute relates to the county health director’s authority.
The Attorney General’s Office said last week that Pour could take measures against infectious disease only with approval of the State Department of Health and Human Services.
But City Attorney Paul Kratz said Monday that the statutes the state cited don’t apply to the City of Omaha because they exempt cities of the metropolitan class. Omaha is the only such city.
Kratz said he and the City Law Department have no doubt that Pour has legal authority to issue a mask mandate for Omaha.
Omaha city code gives the Douglas County health director authority to issue orders to address an epidemic.
Said Kratz, “We felt very comfortable with our opinion.”
Ultimately, the debate is a philosophical one about whether government should force mask wearing on people who don’t want to wear one.
Ricketts on Monday called masks “a good tool” but one that people should adopt on their own, not by the “heavy hand of government.”
“We want to have people adopt this in their everyday life as part of what we do to manage” the pandemic, the governor said.
Pour, through the Douglas County Health Department’s spokesman, declined to comment further Monday. When she first suggested mandating masks, Pour said it was important to get COVID-19 cases under control “if we want to get our schools open.”
Rodgers said Pour thought a lawsuit would be detrimental to her public health work in stopping the spread of the virus.
“The unfortunate thing is, this issue is a scientific matter that’s being politicized,” Rodgers said.
He added, “She didn’t want to get caught up in that.”
Stothert said she believes Pour is still considering a mask order. The mayor said Pour didn’t want to get caught in a legal battle.
“Adi is concerned about one thing, and that’s public health,” Stothert said.
Absent an order from Pour, the Omaha City Council will take up a mask ordinance sponsored by council members Chris Jerram, Pete Festersen and Ben Gray.
The proposal will go on the council agenda next week, on Aug. 11.
Festersen and Jerram say they plan to seek an emergency ordinance, which would require approval of six of seven council members. If that fails, they’ll fall back on a regular ordinance, which requires only four votes. Festersen said he believes he has the fourth vote.
An emergency ordinance would go into effect immediately, while a regular ordinance would have to go through several steps: first reading next Tuesday, a subsequent public hearing and then a subsequent council vote.
At the normal pace, the process takes three weeks, which would mean a vote on Aug. 25 and an effective date 15 days later.
Festersen said the response to their proposal has been overwhelmingly positive, with support from teachers, parents, public health professionals, business leaders and owners, and Omaha attractions.
“We were surprised the county did not move forward,” Festersen said, “so the City Council will.”
Ricketts was asked Monday how serious he is about doing anything legally with Lincoln, which has a mask requirement, or Omaha, if it decides to put a mandate in place. Ricketts said he wants to make sure that Lincoln and Omaha follow the law.
“If they follow the law, then they will be able to pursue the courses they’re pursuing,” he said.
World-Herald staff writers Joe Dejka and Nancy Gaarder contributed to this report.
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