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Legislators can’t do much to stop Mendenhall now, but guardrails could be coming

Mayor’s office says it has authority to expand mask requirement

(Rick Egan | The Salt Lake Tribune) Salt Lake City Mayor Erin Mendenhall has drawn the ire of lawmakers over her emergency order requiring masks for K-12 students. Lawmakers say she's overstepping her authority.

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Mayor Erin Mendenhall’s emergency order requiring masks for K-12 students in Salt Lake City schools has caused outrage among Republicans in the Utah Legislature.

They allege Mendenhall overstepped her authority. The mayor is standing by her decision, which impacts families and teachers in the Democrat-heavy Salt Lake City.

But their frustration may just be nothing more than political theater.

Republican legislative leaders say Mendenhall cannot use emergency powers to mandate masks in city schools.

“She clearly does not have the authority to do this,” House Majority Whip Rep. Mike Schultz said.

The Hooper Republican took to Facebook over the weekend to blast Mendenhall’s decision. He said she’s breaking the law by assuming an authority she does not have because emergency powers are reserved for threats to public safety or natural disasters.

“She knows she’s outside of her lane here,” Schultz said. “This is not what the Legislature intended.”

Is she breaking the law?

In the 2021 session, lawmakers passed the so-called “pandemic endgame” bill, which stripped local school districts of the ability to impose a mask requirement.

Local health departments can order mask-wearing, but any decision can be countermanded by county councils or commissions. Earlier this month, the Salt Lake County Council blocked a mask mandate from county Health Director Angela Dunn.

Schultz asserts legislative lawyers warned Salt Lake City attorneys that Mendenhall would be overstepping her authority by issuing the mask order. Mendenhall’s office says that’s not true.

“Our City Attorney’s Office did meet with legislative counsel and Mr. Schultz’s recounting does not reflect their takeaway from that conversation whatsoever,” said Lindsey Nikola, Mendenhall’s spokesperson.

Even if lawmakers are right and Mendenhall lacks the authority, there’s not much they can do to stop her. There’s no “mask police” that could come and arrest her for defying the Legislature, and the law does not specify any sort of penalty. The state could go to court, hoping a judge will step in and issue an injunction, but that’s about the only short-term recourse available.

Rep. Jeff Stenquist, R-Draper, says the lack of any sort of enforcement mechanism is a loophole Mendenhall is exploiting.

“There’s a presumption that people will abide by the law,” Stenquist said. “She’s taking a calculated risk and daring the state to do something about it.”

That could be a political winner for Mendenhall, said Jason Perry, director of the Hinckley Institute of Politics at the University of Utah.

“Mayor Mendenhall took the step to defy the Legislature,” Perry said. “It’s going to take some time for them to challenge that, which may allow her to accomplish what she wants to accomplish.”

That argument cuts both ways.

Mendenhall’s order may be unenforceable, because city governments have no authority over public education. It would be up to individual schools whether to abide by the emergency order.

Political price

While Mendenhall’s short-term defiance may be a winner, she and Salt Lake City could pay a long-term political price.

“The next time something comes up and Salt Lake City wants to work with us on an issue,” Stenquist said, “what will that result be?”

Perry put it even more bluntly.

“There’s a long memory,” he said, “when lawmakers believe someone goes beyond the authority they were given.”

Perry expects lawmakers to establish new guardrails in the law to prevent Mendenhall or others from making a similar move in the future.

“If it wasn’t clear before,” Perry said, “they will make it abundantly clear.”

It’s uncertain how and when the response from lawmakers will come. They could call a special session to override Mendenhall’s mask order and change the law to block her from doing it again. Or they could wait until the 2022 session in January.

It’s not just Salt Lake City that could feel the effects of a legislative snapback.

Other cities could get caught in the crossfire. Former Mayor Rocky Anderson’s attempts to block construction of the Legacy Parkway often drew the ire of lawmakers and enraged Davis County officials. More recently, former Salt Lake City Mayor Jackie Biskupski tangled with lawmakers over the creation of the inland port, which impacted other cities hoping to take advantage of the proposed facility, too.

Stenquist, who served 12 years on the Draper City Council, says when Utah’s capital got into a scrap with lawmakers, other cities would brace for the aftermath. “We’d think, ‘Thanks a lot Salt Lake City. Now we have to deal with this, too.’”

Mendenhall initially considered a citywide mask requirement, but did not move forward due to lack of support. That option remains on the table.

“The mayor’s office spoke with quite a few business owners who wanted to see masks required again so they wouldn’t have to institute their own requirements, but many who also felt that vaccinated patrons should be able to make their own decision on whether or not to wear a mask,” Nikola wrote in an email. “We also spoke with quite a few medical leaders as well to get their input.”

Nikola added the mayor has the legal authority to expand the K-12 mask requirement should changing circumstances warrant such a move.

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