By Jonathan Shorman
Tribune News Service
TOPEKA — Kansas Gov. Laura Kelly’s powers to close businesses and order residents to stay home during the pandemic might expire at the end of April — at least temporarily — after top Republican and Democratic leaders voted to postpone reconvening the Legislature because of health concerns.
Unless lawmakers vote to extend the state of disaster declaration in the next few days, the governor’s emergency powers will end May 1. It could force her to declare a new disaster in order to keep statewide restrictions in place.
Kelly’s administration contends that an expiration could disrupt federal funding and other assistance needed to respond to the coronavirus, which has infected at least 2,025 people and killed 107 in Kansas.
“So I think there is significant risk doing that approach,” Will Lawrence, Kelly’s chief of staff, told top legislators Wednesday during a conference call. “The best and I think really only solution here is to find a way to extend the current declaration beyond May 1.”
If the current declaration expires, Kansas would have to obtain a new federal disaster declaration from President Donald Trump, Lawrence indicated.
But anything that happened over the past month-and-a-half couldn’t be used to justify a new declaration, he said. He didn’t clarify why or how long it would take to secure a new measure from Trump.
Under the presidential directive the federal government helps pay for Kansas National Guard operations, Lawrence said. Kelly has deployed the National Guard to help with food distribution and drive-through testing clinics.
“Certainly… it would shift that cost back to the state,” Lawrence said, adding roughly $17 million in federal funds could be jeopardized.
But Federal Emergency Management Agency spokesman Mike Cappannari said in an email that Kansas doesn’t need to take any further action regarding the presidential declaration and the assistance that comes with it.
Top Republicans disputed the potential for problems. Senate President Susan Wagle, a Wichita Republican also running for U.S. Senate, said Kelly can “easily reissue” the disaster order.
The federal government has provided states with extreme flexibility, she said.
“I think she’ll be able to reissue her order,” Wagle said, though she added, “we’re in uncharted territory.”
Kelly’s current statewide stay-at-home order is effective until May 3. But the legality of the order past May 1 is contingent upon the current state of disaster remaining in place.
Other restrictions are also tied to the current disaster declaration. At her daily briefing Wednesday, Kelly said her administration is looking at its options.
“We believe that we’ve got some options to deal with that, because in no way can we let those orders expire,” Kelly said.
The Legislative Coordinating Council, comprised of house and senate leaders, voted Wednesday to put off bringing the Legislature back to Topeka. Lawmakers were set to return this coming Monday and could have voted to extend the state of disaster.
The LCC will instead meet by May 6 to pick a new date to reconvene. Before voting, the council heard from staff who told them the Kansas Constitution requires the Legislature to meet together in Topeka but that the safety of lawmakers and other personnel would be difficult to guarantee.
Legislative staff has had trouble obtaining sanitizer and cleaning wipes, for example. Out of the state’s 165 legislators, about 65 percent are in an “at-risk” category for COVID-19, said Tom Day, director of Legislative Administrative Services.
Ryckman said one lawmaker believes they have contracted the virus, but he refused to provide additional details.
“At this point, we have numerous issues we want to look at,” Day said.
Before the Legislature adjourned last month, legislators approved a resolution authorizing Kelly’s emergency powers. The resolution included an oversight system, with the ability of small panels of legislators to grant extensions.
But after the LCC voted to revoke an executive order limiting in-person religious gatherings to 10 people through a process outlined in the resolution, Kelly sued.
Kansas Supreme Court justices found flaws in the resolution’s design and overturned the decision. Republican leaders suggested the problems related to the disaster declaration would have been avoided if Kelly hadn’t brought a legal challenge.
“We just can’t find a legal solution that will get past a court challenge,” House Speaker Ron Ryckman, an Olathe Republican, said of extending the current disaster.