The Past, Present, and Future
Dear Friends,

Since my last newsletter, much has changed, both in our state and in our nation. With the federal, state, and county governments involved in the matter, it can be very confusing to follow. So, before I get into my thoughts on the matter, I want to lay out the facts. 

Before getting into the details, the basic summary of where we stand now, is as follows:

  • Governor Kelly’s statewide stay-at-home order lifts after May 3rd, and she has a four-phased plan to re-open Kansas, beginning on May 4th.
  • However, her order allows local jurisdictions to impose more restrictive measures. 

  • Here in Johnson County, our public health director (who is not an elected official) extended the Johnson County stay-at-home order through May 10th. Under Kansas law, he has the independent authority to do so. While three county commissioners wanted to issue their own decision to open up Johnson County on May 4th, that motion failed 3-4 on Friday. As a result, Johnson County will not join the governor’s reopening plan until May 11th.

  • On Friday, the Board of County Commissioners, BOCC, (who are elected officials) voted 7-0 that on May 11th, we will join the governor’s four-phased plan to re-open Kansas, which I will explain in greater detail later in this newsletter. 

  • You may have heard about plans to reopen that the Johnson County Task Force was creating. Because of the governor’s actions, the BOCC tabled those plans, so the Johnson County timeline to reopen will match the state timeline beginning on May 11th.

Now, how did we get here? That’s a question many are asking, and I want to answer it the best I can. In order to best accomplish this, I want to outline things in a chronological order – the past, the present, and the future:

  • Past: The actions taken by the federal, state and local government in the past that led us to the point we were entering this week.
  • Present: The actions taken by the state and local government this week.
  • Future: The action that may be taken, particularly by the state government, in the weeks ahead.

In doing so, I will cite the statutes that give these officials the authority they have (or claim to have), and the measures taken by these officials.   Finally, I will give you what possible legislative action could be taken regarding these orders, and my viewpoint on all of this.

This is quite a lengthy and detailed newsletter, but will arm you with the facts.

Here we go...!
Under Kansas law, Statute KSA 48-924 gives the governor of Kansas the power to “declare a state of disaster emergency”, which she did on March 12 th . When this is done, a number of wide-ranging emergency powers are triggered under Statute KSA 48-925 , which can be executed through executive orders.

It is very important to understand that the state of disaster emergency is different than the executive orders issued under the authority of that emergency. When the state of disaster emergency expires, the executive orders expire with it.  

Under the state of disaster emergency, the governor has issued a long list of executive orders, which can be found here . The most prominent order is the “statewide stay-at-home order”, which can be found here . It expires on May 3 rd .

However, it is important to mention that having a state of disaster emergency in place does NOT mean a governor must issue any executive orders. For instance, due to federal funding tied to state disaster emergencies, it may be prudent to have a “state of disaster emergency” in place, but that does not mean a governor need issue executive orders under it. 

Some have asked about the length of the powers. That is a great question.

When a governor issues a state of disaster emergency, that power can last for up to 15 days, unless it is ratified by the legislature, with the exception that the legislative members of State Finance Council can grant her one 30-day extension. The State Finance Council is chaired by the governor and consists of eight members of the legislature; three leaders from each chamber, plus the chair of each chamber’s appropriations committee, for a total of four legislators from each chamber.

A few days after her declaration, the legislature adopted HCR 5025 which ratified her decision until May 1 st . It is important to remember that the initial version would have extended her emergency until next January, but many of us were concerned by that, and so it was amended to May 1st.

We attempted to provide a way for the legislature to check her power when we are not in session. This is where the Legislative Coordinating Council (LCC) came in. The LCC is made up of seven legislative leaders; the top four House leaders and top three Senate leaders. Five of the seven members are Republicans.  However, the governor chose to challenge that authority in the case involving her executive order pertaining to churches.  

So, as we approached April 30th, it became very clear that her entire state of disaster emergency was going to expire on May 1st, which would have ended all of her executive orders.  As a result, the governor chose to issue a new state of disaster emergency that began on April 30th, essentially starting the clock again. 

You might recall that some of the executive orders, such as the statewide stay-at-home order, were set to expire May 3rd. Because the first “state of disaster emergency” expired on May 1st, she had to re-issue those orders under the new (second) “state of disaster emergency” so they would extend to May 3rd. .

Now, some have asked about whether a governor can repeat similar state of disaster emergencies after one expires . That is a good question and may be adjudicated in the days and weeks ahead...we shall see.

But, as of now, we are under the new (second) state of disaster emergency and the executive orders that fall within it. That means the “15-day clock” has started again and lasts until May 14th. Again, the State Finance Council can extend that for 30 days or the legislature can ratify it.

Quick side note: The legislature originally was scheduled to return on April 27th. However, the LCC voted 7-0 to delay that, and will decide by May 6th the date on which we will return. Regardless of whether we return or not, the legislative session will expire on May 21st per the adjournment resolution that was adopted when adjourned.
With the new (second) “state of disaster emergency” having been declared, the question then turned to the governor’s plan to re-open the state. 

Last weekend, I joined a total of 86 legislators (20 Senators, 66 Reps) in asking Governor Kelly to issue a plan to re-open Kansas, with a recommendation that she follow President Trump’s "Opening Up America Again” plan, which provided states like Kansas great flexibility. Our letter outlined a number of recommendations. You can read the letter by clicking here .
For a time, there was hope that the governor would allow counties to proceed at their own pace. As such, counties like Johnson had started working on plans to re-open their economies. But, that changed on Thursday night, when the governor outlined her plan to re-open Kansas, which you can read by clicking here

While her plan does lift the statewide stay-at-home order, it still imposes severe restrictions throughout the phasing. It also is much more restrictive -- and proceeds at much slower pace -- than the White House plan. While I am grateful that her four-phase plan begins on Monday, it does not fully re-open Kansas until at least mid-June.

The Board of County Commissioners voted 7-0 to follow the governor’s plan. I believe this was a prudent move, because a competing set of dates and phasing would have been impossible for the public to follow.

However, there is a wrinkle to all of this. Governor Kelly's plan does NOT allow counties to impose less-restrictive means of operating. Under her plan, counties can issue MORE restrictive measures and open more slowly. Under KSA 65-129b , local public health officials are given the power to issue stay-at-home orders and quarantines. Dr. Joe LeMasters is our local public health official and has decided to extend the stay-at-home order for Johnson County until May 10 th . While Commissioners Mike Brown, Steve Klika, and Michael Ashcraft voted to issue a competing order to open up May 4 th , that vote lost 3-4.  Had their motion passed, a court would have had to rule on the difference between the two conflicting orders.

So, that leaves us with where are today:

  • Between now and May 10th, Johnson County is in a stay-at-home order. 
  • Starting May 11th, we enter the first phase of the governor’s plan, which will last until at least May 17th
  • Those outside of Johnson County need to consult with their county officials to see if they are following the governor’s plan or pursuing more restrictive measures.

So, where do we go from here?
When looking at the road ahead, it is important to examine the governor’s plan in detail. Again, you can read it yourself by clicking here . As noted, it has four phases, and assumes that the state of disaster emergency will remain in effect throughout the phases. It is subject to change. The governor said in her speech that it is a “living document.” 

Here are some key points:

  • Each phase will last at least two weeks. Each phase opens the state a bit more each time, with restrictions being removed for certain entities. If each phase only lasts two weeks, the state will not be in the “Out Phase” until June 15th.
  • The phasing guidance ONLY covers activities and businesses that were previously not allowed to open because they were “non-essential.” 

  • To this point, under a previous order, churches were always essential. However, there was an order restricting them to gatherings of less than ten. That order – specific to churches, has been lifted. As such, churches may meet as long as people remain six feet apart, though immediate family can sit together.

  • Mass gatherings are defined as instances in which individuals are in one location and are unable to maintain 6 feet of distance between individuals (not including individuals who reside together) with only infrequent or incidental moments of closer proximity. Note, again, this definition does not include churches - they can operate as long as those attending can sit six feet apart. Immediately family can sit together!

  • Local communities can always impose stricter restrictions.

  • High Risk individuals are encouraged to stay home in phases 1 and 2, except for essential needs. They may resume activities in Phase 3. High-risk individuals include those with underlying medical conditions, including, chronic lung disease, asthma, heart conditions, severe obesity, chronic kidney disease, liver disease, or are otherwise immuno-compromised.
  • A separate executive order will be issued to implement each phase.

With those key points in mind, here are the highlights of each phase:
PHASE 1                          Begins May 4th (May 11th for Johnson County)  
Contained in Executive Order 29 ( Click here to Read )

  • “Mass gatherings” are limited to 10 people.
  • Masks are strongly encouraged in public settings.
  • Social distancing encouraged.
  • Activities NOT allowed to open: large entertainment venues (2000+), community centers, public pools, organized sports, youth camps, fairs, festivals, parades, and graduations. Weddings, for instance, COULD occur in venues with less than 2000 people as long as they could socially distance.
  • Businesses NOT allowed to open: Bars and nightclubs – except carry out, non-tribal casinos, indoor leisure spaces, gyms and fitness centers, professional services where close contact cannot be avoided – this includes nail salons, barbershops, hair salons, etc. 
  • Businesses/activities that CAN open: Restaurants, as long as tables seat no more than 10 and are six feet apart; libraries; childcare facilities.
  • Non-essential travel is discouraged.
  • Telework encouraged.  
PHASE 2                               Begins No Sooner than May 18th

  • “Mass gatherings” are limited to 30 people.
  • Masks are still encouraged in public settings.
  • Social distancing encouraged.
  • Activities NOT allowed to open: Large entertainment venues (2000+), summer camps, fairs, festivals, parades, and graduations
  • Establishments and activities ALLOWED to open/occur: Bars & nightclubs with 50% capacity, non-tribal casinos, swimming pools, organized sports facilities and tournaments, libraries, childcare facilities.
  • Telework encouraged.
  • Non-essential travel is discouraged.
PHASE 3                      Begins No Sooner than June 1 st

  •  “Mass gatherings” are limited to 90 people.
  • Mask recommendation downgraded from “Strongly encouraged” to “May”.
  • Social distancing encouraged.
  • Everything may open subject to mass gathering limit and social distancing of six feet.
  • Non-essential travel can resume.
Phase Out (Phase 4)              Begins no Sooner than June 15 th

  • All Businesses can open, masks not mentioned, social distancing encouraged but not emphasized
  • No limit on gatherings
Possible Legislative Action
Many have asked about what the legislature can do regarding these orders. I want to address that.

As noted, the Legislative Coordinating Council will make the decision if and when the legislature will return, and must make the decision by May 6 th . We could return for a few days, or even just one day, or not at all. Regardless, the legislative session will be finished on May 21 st .

If we do return, the legislature does have the power to terminate the state of disaster emergency, to refuse to extend her state of disaster emergency, or to rescind any executive orders issued under it. It would take 63 votes in the House and 21 in the Senate to do this.

It is important to point out that once the legislative session ends on May 21 st , the only way the legislature can convene is via a special session. That would require the governor calling us in, or a petition by 2/3's of the members of each chamber, per the Kansas Constitution.

I will not speculate about what the legislature may or may not do; I plan on continued conversations with my colleagues about the appropriate action.  
My Viewpoint
With all of those facts in mind, I want to take a few moments to provide you my viewpoint about where we are at this point in time.

First and foremost we all mourn the loss of every Kansan and every American that has died as a result of COVID-19.  The disease is clearly quite contagious and there are certain populations who are particularly vulnerable. We’re all concerned about the outbreaks in nursing homes, and now there is increasing concern about the outbreaks in meat packing plants. We all pray for effective treatments to come online as quickly as possible, up to, and including a vaccine.

45-60 days ago, when this all began, there was a great deal of uncertainty and I think I join many of my colleagues in understanding why the initial orders were issued, when so much was unknown. Doing what we could to “flatten the curve” and not overwhelm our hospitals was the right thing to do.

However, at the time, I stressed on the Senate floor that our response must be measured . I likened it to my experience advising the public about how to respond to severe weather, and the importance of not producing alarm when the facts did not justify it. I also felt strongly that our leaders should be ready to adjust the orders as necessary, as soon as more data came in. In short, it was just as important that the draconian orders be lifted as quickly as they were imposed.

I was criticized by my opponent and her allies for saying so, but I believe our experience has proven what I said to be true. Unfortunately, in many areas of the country, we have seen officials take steps that are extreme and, in many cases, make no sense. Actions that in the past, would have been unthinkable. This has created more fear and more uncertainty, rather than the measured response that would have been appropriate.

Thankfully, some states have begun the process of reopening, and some quite boldly. While I am glad that there is some light at the end of the tunnel from the governor’s office, that light is still too dim and too far in the distance for me. 

For instance, her plan proceeds at a far slower pace and is more restrictive than the plan put out by the Trump Administration, which I believe is not justified by the data. Continuing to impose restrictions on personal services (such as barbershops and hair salons) is not necessary. Restricting gyms and fitness centers from opening for another two weeks is not necessary.

Kansas is not New York. As the governor admitted last night, the state has only been lightly hit. Many who contracted the virus were without symptoms completely, and some had only mild symptoms. New data indicates that the virus may be more widespread than the models originally calculated, which also means the estimated death rates were greatly exaggerated.

Meanwhile, the number of people in Kansas who are newly unemployed is approaching 200,000. That number does not count the various self-employed individuals who are not eligible for benefits, or the small businesses that may not reopen even when the governor’s orders are completely lifted. We will not get a complete picture of the economic carnage for some time, and the recovery of the economy in Kansas will take well over a year. For some, there will be no recovery.

During these times, I am reminded of a statement by a man named Stephen Schneider who advised Presidents from Nixon to Obama on so called “anthropogenic climate change” and has played a big role in the climate alarmism we experience all the time. Schneider said:

“On the one hand, as scientists we are ethically bound to the scientific method. On the other hand, we are not just scientists but human beings as well. To do that we need to get some broad-based support, to capture the public’s imagination. That, of course, means getting loads of media coverage. So we have to offer up scary scenarios, make simplified, dramatic statements, and make little mention of any doubts we might have. Each of us has to decide what the right balance is between being effective and being honest. I hope that means both.”

What he said is that telling the truth is not the most important thing when you are trying to be effective in warning the public. In other words, the public is incapable of making decisions for themselves, according to Schneider.

Does that give you comfort in how some government officials see you?

To me, this should inform the legislature that reform is necessary. We must take steps to review each line of every statute that governs everything from the governor’s emergency powers to the independent authority granted to local health officials. In the meantime, if it gets to a point we do need to take action to challenge the governor, I will be encourage that we do so.

I look forward to working with my colleagues on all sides of the aisle to accomplish these goals.


Mike Thompson
COVID-19 Resources
Below are several links to information about the COVID-19 virus.