Mandate Post-Mortem

Mandate Post-Mortem

Knox County’s indoor mask requirement died quickly amid the interplay of the governor’s manifold executive orders on the COVID-19 response.

by scott barker • May 4, 2021

The demise of Knox County’s mask mandate last week involved the county mayor’s office scrambling to strike against a complex legal backdrop.

After getting the green light from the Law Department, Knox County Mayor Glenn Jacobs wasted little time ending the mask mandate.

On April 27, Knox County Mayor Glenn Jacobs ordered the mandate to lapse after Gov. Bill Lee issued an executive order stripping the authority to issue face-covering requirements from most Tennessee counties — though not Knox or five others with independent health departments. 

Prior to that day, the Law Department had asserted that Dr. Martha Buchanan, director of the Health Department, had sole authority over health orders, including the mask mandate, following the reconstitution of the Board of Health as an advisory panel.

Emails that circulated among the mayor’s office, the Law Department and the Health Department indicate a speedy decision-making process that did not slow down even when one deputy law director suggested a pause. 

Those emails, obtained through a public records request by Compass, show that little more than two hours elapsed between notification that the mandate could be killed and Jacobs’ announcement that it would end that night.

The shift in authority from Buchanan to Jacobs came as suddenly and unexpectedly as the mayor’s announcement. Deputy Law Director David Sanders said Monday that Lee’s Executive Order 80 changed the legal landscape, though ambiguity endures.

Fast Action

Lee issued Executive Order 80 last Tuesday morning. The order continued the state of emergency prompted by the COVID-19 pandemic and extended the controlling executive order — No. 77 — until May 31. The order also ended the life of the Tennessee Pledge as pandemic guidance and deleted Section C of Executive Order 77, which governed local face covering restrictions.

Jacobs has been an opponent of the restrictions put in place to fight the spread of COVID-19, including the mask mandate. He also has lavished praise on Buchanan and the Health Department staff for their work even as he heaped criticism on the approach. By last week, all restrictions in Knox County had been lifted except for the requirement to wear face coverings in indoor public spaces when social distancing couldn’t be maintained.

Knox County officials saw the scrapping of Section C in Order 77 as an opportunity to quash the local mask mandate, though it mostly deals with the authority to issue mask restrictions in the 89 Tennessee counties without their own health departments.

At 2:09 p.m. Tuesday, Deputy Law Director Jessica Jernigan-Johnson sent an email to Buchanan, and copied it to Law Director David Buuck and Dwight Van de Vate, Jacobs’ chief of staff.

“Governor Lee delegated the authority to enact county-wide regulations to the Knox County Health Department under Executive Order 77 B.13.c.,” she wrote. “That provision of EO 77 was not extended by the governor and will expire tomorrow. Accordingly, the Health Department’s authority to enact community wide regulations as provided by EO 77 will expire tomorrow.”

The section of Executive Order 77 she referred to — Section B paragraph 13c — was not deleted, however. That section gives the authority to issue health orders to the six counties, including Knox, that have independent health departments.

About a half-hour later, Jernigan-Johnson appeared to have reconsidered. In an email sent to the same recipients at 2:37 p.m., she urged caution while she and Buuck, who was out of town, conferred about the new order.

“After further review of EO 80, David and I wanted to have additional discussion,” she wrote. “He and I are going to touch base tonight or tomorrow and will follow-up. Please hold on my email below for now.”

There was no reply to Jernigan-Johnson’s second email and no delay in taking action. Knox County Communications Director Mike Donila said that instead of waiting, the mayor spoke directly with Buuck, who told him that Executive Order 80 gave him the green light to end the restriction.

“Buuck said based on the Gov. Lee’s move, the Mayor now had the authority to lift the mandate,” Donila wrote in an email on Monday.

By 3:50 p.m., the press release announcing the end of the mask mandate was being finalized with a quote from Jacobs. The mayor’s office sent Buchanan a copy of the release. Her brief response was, “Thanks.”

At 4:15 p.m., the announcement was sent to the media. The mask mandate would vanish at one minute before midnight.

Legal Landscape 

According to Sanders, the deputy law director, the shift in authority from Buchanan to Jacobs was caused by a change in authority under Lee’s executive orders. Those orders have been revised and updated by new orders as the months have passed, making it sometimes difficult to follow the evolution of the pandemic response.

The Knox County Board of Health voted to require people to wear face coverings in indoor public spaces on July 1, 2020. The board did not include a sunset clause in the order, meaning that no action needed to be taken in the future for it to remain in effect. The authority cited was Lee’s Executive Order 38.

The relevant passage of Executive Order 38 gives the six counties with locally run health departments — Knox, Shelby, Davidson, Hamilton, Madison and Sullivan — the authority to issue measures “related to the containment or management of the spread of COVID-19.” Mask mandates are not specifically mentioned.

Lee updated Executive Order 38 with various new executive orders until issuing Executive Order 77 on Feb. 26. One month later, on March 29, County Commission stripped decision-making authority from the Board of Health.

At that point, according to Sanders, Buchanan’s sole authority to issue health orders derived from Lee’s executive orders, and Executive Order 77 was in place at the time. The Law Department also advised her to re-issue the county’s two remaining orders, since the Board of Health’s orders no longer had any authority. Buchanan did so on April 12. (The order restricting public gatherings has since expired.)

Executive Order 77 contained two relevant provisions. One passage in Section B consists of the broad language identical to the passage in Executive Order 38 cited in the original mask mandate. Jernigan-Johnson, the deputy law director who emailed Buchanan on April 27, specifically cited that language as the authority for the Health Department’s powers to enact countywide regulations, though she erroneously said it had been deleted.

The other passage, in Section C, mentions mask mandates but doesn’t explicitly give authorization to the six counties with independent health departments to issue them.

Still, Sanders said, the Law Department read the passage as the governor’s presupposing of their authority to do so.

“We have consistently interpreted this paragraph as authorizing the health department to issue a facial coverings mandate,” he said.Thus, when the health director of Knox County issued both a mask mandate and a gatherings regulation, she did so under the authority of two separate provisions of (Executive Order) 77.”

Sanders said Lee removed the authority to issue a mask mandate by repealing Section C in Executive Order 80.

Lee, however, had said the six independent counties still had the authority to keep mask mandates in place. His press secretary, Casey Black, confirmed on Monday that the newest order did not affect the powers of locally run health departments. 

At a media briefing last week announcing Executive Order 80, Lee said the mandates could remain in place until the order expires at the end of May, though he wanted them to be lifted.

“Our office either reached out or I spoke personally to those mayors about my desire that by Memorial Day, all business restrictions, all mandates, mask mandates and limits would be lifted across this state,” he said. “We believe that'll happen.”

In Knox County, it already has.