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SALT LAKE CITY — Riled by Salt Lake City Mayor Erin Mendenhall's newly issued school mask mandate amid Utah's COVID-19 case surge, a legislative leader is already threatening to use the might of state law or a lawsuit to crack down on what he's calling an overreach of power.
"Mayor Mendenhall is a city mayor and has no authority over health or education policy," House Majority Whip Mike Schultz, R-Hooper, wrote in a Facebook post on Sunday. "The emergency powers granted to mayors under Utah law are clearly for public safety and related to disasters or threats of a disaster. There is no public safety threat, no disaster, and no threat of a disaster to justify her order mandating masks in schools. She hasn't been granted blanket authority to do whatever she wants. Her order is NOT enforceable."
In his post, Schultz linked to an analysis by Utah-based libertarian think tank Libertas Institute that concluded the mayor's K-12 school mask mandate is on "shaky legal ground," challenging her city attorneys' legal analysis that argues the school mask order is within her mayoral emergency powers.
Upon issuing her order last week, Mendenhall said she was "fully confident" in her city attorney's legal analysis of the Utah Legislature's pandemic "endgame" law, which limits local officials' ability to issue mask mandates. Although that law, passed earlier this year, limits local health departments' and the governor's emergency authority over mask orders, those same limits do not apply specifically to a mayor's local emergency authority in the same way, city attorneys concluded.
But Schultz referred to another law passed earlier this year, SB195, that limits durations of public health orders to 30 days and requires legislative approval — whether that's from the Legislature, or city or county councils depending on jurisdiction — for those public health orders.
"SB195 established more clear processes for emergency powers, and was intended to LIMIT those powers," Schultz wrote. "However, Mayor Mendenhall continues to invent new and unprecedented authority in a statute that, by design, is very narrow in scope."
Schultz noted that the bill spells out a process to impose mask mandates or other restrictions under "orders of constraint."
"That limited authority is given to the state or an individual county health department, and their respective legislative bodies (county commissions or councils) may overturn them," he wrote.
In response to Schultz's comments, Mendenhall spokeswoman Lindsey Nikola said in a prepared statement the mayor's office remains confident in the city's analysis of the law.
"State law allows cities to take emergency measures to keep people safe in crises like this, and that's exactly what we've done here to protect the health and safety of schoolchildren and the vulnerable people with whom they interact," Nikola said. "It's what the law says we can do, and it's what doctors and scientists are telling us we should do in order to keep hospitals, businesses, and schools open and running as this emergency continues to unfold and claim lives."
It's not the first time leaders in Salt Lake City, the Democratic-leaning capital of an otherwise very red Utah, have clashed with members of the GOP-controlled Legislature. The local control debate has time and time again cropped up, whether it's about anti-idle ordinances, billboards or the controversial creation of the Utah Inland Port Authority.
Other Republican lawmakers also took to social media to criticize Mendenhall, including Rep. Jeff Stenquist, R-Draper, who blamed Salt Lake City leaders' "sins" for legislative action restricting city powers.
"It's unfortunate when the legislature is compelled to put restrictions on cities because of one Mayor or City Council (usually #SLC) overstepping," Stenquist tweeted. "Local governments statewide have long been paying for the sins of Mayors in SLC."
Salt Lake City doesn't have a health department. That's under the purview of Salt Lake County, which struck down a proposed school mask mandate. And the Salt Lake City School District is responsible for school policies, not the Salt Lake City mayor. That's why Schultz argued Mendenhall doesn't have authority to issue a school mask mandate.
The emergency powers granted to mayors under Utah law are clearly for public safety and related to disasters or threats of a disaster. There is no public safety threat, no disaster, and no threat of a disaster to justify (Mayor Mendenhall's) order mandating masks in schools.
–House Majority Whip Mike Schultz, R-Hooper
"This troubling pattern of issuing orders and claiming authority granted through emergency powers MUST be stopped," Schultz wrote. "There will be legislation to further clarify what constitutes an emergency and what powers are granted during an emergency. It appears we may need to include ramifications for when officials abuse that power."
Appearing on KSL NewsRadio's "Dave & Dujanovic" show Monday morning, Schultz said there's "a couple of things" lawmakers could do to tackle Mendenhall's mask mandate. They could "go through the courts," he said, or the Legislature could call itself into special session.
"There's things that we can do. I don't know, we haven't talked about it yet as leadership teams and as a Legislature (to) determine the best pathway forward," Schultz said. "But I do know those discussions are starting to happen, and we'll see where that goes."
Asked if lawmakers would sue Mendenhall over the school mask mandate, Schultz said, "I think that we need to hold people accountable to the laws that are passed and the processes that are put in place. ... I would hope at this point that all options are on the table."
"If the mayor thinks that there needs to be masks in schools, then she needs to go work with the local health department and the local county elected officials for that to happen," Schultz said. "This isn't something that just happened in Salt Lake County. It's happened in Grand County. It's happened in Summit County. And they're working together. We created a pathway for this to happen, and the mayor stepped outside of those pathways and abused her power under (state) statutes."