Shelby County Attorney says commission can’t require masks

SHELBY COUNTY, Tenn. — Proposed ordinances to require people to wear masks in Memphis and Shelby County could be dead before they get another vote.

In a letter sent yesterday to Shelby County Commission Chair Mark Billingsley, County Attorney Marlinee C. Iverson wrote it is clear that Shelby County Commissioners do not have the power to require residents to wear masks, but the Shelby County Health Department does.

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Commissioner Tami Sawyer proposed the ordinance last week. Commissioner approved it on its first reading, but it would still need to pass two more readings to go into effect.

In her letter, Iverson explained Gov. Bill Lee’s Executive Order 30 states local governments themselves cannot pass such an ordinance. Instead but it gives that kind of power to locally-run health departments in six metro counties, including Shelby.

Lee’s Executive Order said:

Local orders in six counties with a locally run county health department (Davidson, Hamilton, Knox, Madison, Shelby, and Sullivan). The six locally run county health departments in Davidson, Hamilton, Knox, Madison, Shelby, and Sullivan counties shall have authority to issue additional orders or measures related to the containment or management of the spread of COVID-19, which may permit to a greater degree, or restrict to a greater degree, the opening, closure, or operation of businesses, organizations, or venues in those counties, including those listed in Paragraph 11 of this Order [listing continued closures of certain businesses], except no local official or local governmental entity shall issue an order or measure regarding places of worship. Nevertheless, this Order shall govern on all subjects it concerns, except to the extent that the locally run county health department has issued differing local orders or measures regarding the opening, closure, or operation of businesses, organizations, or venues as provided for in this Paragraph 13.c.

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The six counties, including Shelby County, have more authority through the health department because they are “differently situated than the rest of Tennessee.” This means those counties have large urban areas and a local health department that works with the Tennessee Department of Health, the letter stated.

Also, the effect of this order simply states that either Lee’s order or the local health department’s directives apply during a state of emergency related to health.

The current Shelby County Health Directive 3 does not require individuals to wear face coverings in all public places, the ordinance does.

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The letter also stated:

Rather than unintentionally cause confusion, the Commission’s desire to assist and partner with the Health Department should be further explored. For example, the Commission could consider a resolution that acknowledges the singular role of the Health Department and requests that business owners team up with the Health Department to help educate citizens about the usefulness of face coverings and other safety measures designed to limit the spread of the disease.”

Memphis City Council is also considering a mask requirement. Council members Dr. Jeff Warren, a physician, and Michalyn Easter-Thomas proposed the requirement. It recently passed on its first reading, too. It also needs to pass two more readings.

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In both the city council and county commission members were concerned about enforcement and penalties. The city version would penalize individuals. The county plan would put accountability on business owners.

Memphis and Shelby County, including the other six municipalities, are currently in Phase 1 of their Back to Business Plan. The health department said Friday an announcement on when to enter Phase 2, which would allow more businesses to reopen and ease restrictions on some businesses already open, should come Monday.