Gov. Laura Kelly has complained many times already about the lack of a unified statewide mask order.


When state Republican lawmakers passed House Bill 2016, it allowed Kansas counties to opt out of statewide executive orders made by the governor regarding the COVID-19 pandemic. Most notably then, many counties opted out of Kelly’s mask mandate.


"I talked about my concern with our state’s patchwork mask mandate approach ... at the risk of sounding like a broken record, my concerns remain the same," she said at a news conference late September.


But state legislators next session could make that mask mandate, and any other executive orders, even weaker.


One of the ideas considered by the Special Committee on the Kansas Emergency Management Act — which met last month to forward recommendations for changes to the state’s emergency management laws — was that cities could implement "a lessor order" or opt out of a statewide order themselves.


In essence, even in counties that have opted into Kelly’s mask mandate, cities within that county could opt out.


That has caused a split in positions between cities and counties across the state, each arguing that they should have the final say over the other.


Local control had been cited as the biggest reason for why counties should have the ability to opt out of statewide orders — but now, counties face that same argument being used for cities.


"We have so many areas and counties where we have a single city within the county that actually has most of the population of that county," Rep. Bradley Ralph, R-Dodge City, said during a committee meeting. "So the representation of individuals closest to them actually lies within the city commission even more so than a county commission."


Jay Hall, legislative policy director for the Kansas Association of Counties, pushed back on that idea.


"Counties are local government," he said in an interview. "None of the counties in Kansas are enormous, like in other states. They’re relatively small and compact. They are local government."


But Mayor R Hunter McMillen, of Solomon, with a population of around 1,100, said his town isn’t like the more-populated areas of Dickinson County such as Abilene, the county seat.


"They're having an outbreak in in Abilene, Kansas, or Dickinson County where the courthouse is," he said. "They're having an outbreak and he's punishing all the other little towns for what his town has done. And I don't think that's right at all."


The county is one of the few that opted into the state mask mandate, but McMillen argued it is completely unnecessary and "ridiculous" for Solomon to have. His town has had no COVID-19 cases, he said, and only two to three places of business folks go into.


"We're doing very well. So I think people are tired of being told to do something, you know what I mean?" he said. "I mean, I think we're all being responsible enough. I just think we're being told too much by one person that we can't do this, and we can do this."


He said he was mad when a county health officer drove down to Solomon after the officer heard masks weren’t being enforced. The officer had tried to enforce it himself.


"We know what our residents are doing, if they would just let us do our job as elected officials," McMillen said. "We could take recommendations from the county, I would so much rather have that."


But Commissioner Jeremy Johnson, of Crawford County, which has a mask order in place, said while he understood where cities are coming from, unity matters. If cities were able to opt out, enforcement of rules would be confusing for county authorities from location to location.


"If we followed that, with everything, there would be no laws, right? If you exempt literally everyone, then there's not going to be any uniformity in instances like in a pandemic, that we know there is data that shows what works and what doesn't," he said. "We can't say, at the local level, ’Well, we don't think it's right to pay taxes. So we're just going to exempt ourselves and not do that.’"


More importantly, proponents for counties have brought up the fact that counties are the ones communicating with the state on COVID-19-related data, information and resources. Counties have been charged with distributing funding and resources and therefore, for things to play out smoothly, need to call the shots.


"I think that there’s a lot of reasons ... (that) cities, who are not part of this state-local connection that counties are, to just be operating on their own, could create problems," Sen. Marci Francisco, D-Lawrence, had said in a committee meeting.


Johnson agreed, saying any local decisions made have to be be informed and backed up with proof that it’s for the best of the community.


"If you're going to mandate that cities have health departments, or you're going to provide resources for them to be able to make good decisions, OK, maybe we can talk about it," he said, noting smaller municipalities don’t have the budget for such things.


Amanda Stanley, general counsel for the League of Kansas Municipalities, said there are certain cases where cities can benefit from opting out, such as when a city is on the border of two counties.


But the most important thing she’s been hearing from cities and towns asking for the ability to opt out is many of them don’t feel they are heard by the counties.


"Cities want a large role in communicating with counties. And I think something like having the ability to opt out would increase that level of communication between the counties and create more of a partnership," said Stanley.


McMillen said that’s been the case in his situation, where as the pandemic began to progress, there were fewer and fewer meetings being held to discuss pandemic-related matters.


"Now we're in six months, seven months past, we have no meetings," the mayor said. "The only information we get is from an article that [the county health officer] writes in the paper about Abilene."


Hall of the Kansas Association of Counties acknowledged that communication could be better for some counties, having passed along complaints.


Johnson said the communication aspect is critical to the unity aspect he had mentioned, making sure everybody is on board and on the same page. His county did that when back-to-school day approached, gathering all the school superintendents into one room to hash out a unified approach.


But Johnson disagreed with Stanley, saying that giving cities the ability to opt out would actually make that communication worse.


"Each community has its own distinct makeup and diversity, and not all of them are the same. But by hunkering down and focusing only on those people around you like that limits your scope of the true impacts of what we're facing," he said. "What is going to make sound policy is decisions that are made, not just based on a small group of people, but on as big a group of people as possible, that takes into consideration the needs of the many, not the few."