Face masks for sale at Kim’s Alterations on May 13, 2020 in South Anchorage. (Loren Holmes / ADN)
In a memo distributed to state employees, Alaska Attorney General Kevin Clarkson wrote on Friday that Anchorage’s new coronavirus masking mandate does not apply to state offices, the people who visit them, or employees in those offices.
Anchorage municipal attorney Kate Vogel responded Monday by saying Clarkson provided “inaccurate legal advice” and is “undermining a local health order.”
The Alaska Department of Law said later that Clarkson stands by his memo. The city, through spokeswoman Carolyn Hall, said it is evaluating its options when it comes to a next step.
“I don’t know that (Anchorage is) about to send the police into state buildings and start issuing tickets,” said attorney Brooks Chandler, a specialist in municipal law. “The dispute is laid out on paper, but in practice, I’m not sure what people are going to do.”
Masks have become a politicized issue during the coronavirus pandemic, despite their effectiveness in limiting the spread of the virus that causes COVID-19. Many Republicans view mask mandates as violations of personal liberty, and in a Twitter exchange over the weekend, Clarkson said “local laws are always subject to preemption by the state.”
Gov. Mike Dunleavy, a Republican, has repeatedly urged Alaskans to wear masks in public settings but has not supported mandates to do so. Berkowitz, a Democrat, called the city order a “burden” but said on Friday that burden must be compared against the “potential harm of allowing COVID to spread in our community.” He said some businesses had urged him to take the action.
Anchorage Assemblywoman Jamie Allard, who voted against supporting the citywide ordinance, thanked the governor on Facebook for the memo.
State Rep. Zack Fields, D-Anchorage, said in a written statement that the memo is a “reckless decision.”
“By discouraging the use of face coverings in state buildings, the attorney general is placing state employees at greater risk of catching COVID-19 on the job,” he said.
‘Anchorage has a strong argument’
Anchorage attorney Matt Mead, a specialist in Alaska municipal law, and said, “I think the Municipality of Anchorage has a strong argument.”
In her memo, Vogel said that because Anchorage is a “home rule” city, it “possesses all legislative authority not withheld by the Legislature.” The Alaska Legislature has not passed any law limiting the ability of home rule cities to limit masks, and it has not exempted state-owned buildings from local health and safety rules, Vogel wrote.
Attorney Joe Evans also specializes in Alaska municipal law and works as Kotzebue’s municipal attorney. He thinks Vogel is correct.
“If you followed the state’s logic, then the Anchorage building code doesn’t apply to state buildings, the Anchorage fire code doesn’t apply to state buildings,” he said.
He said he wasn’t surprised that Clarkson’s memo cites no prior cases or existing laws, “because I don’t believe there is anything to cite.”
Dunleavy’s deputy communications director, Jeff Turner, said, “The governor is not opposed to the municipality’s decision on face masks and has always allowed local governments, in consultation with the state, the ability to implement health mandates based on the circumstances in a community.”
“In this case the governor decided to preempt the municipal mandatory mask mandate for state buildings and facilities in the Municipality of Anchorage,” Turner said. “The governor continues to encourage people who want to wear a mask to wear one.”
He said the administration is citing the Alaska Disaster Act as the statutory basis for the preemption.
The city is taking a different view.
In her response Monday, Vogel wrote, “Anchorage’s masking requirement applies to indoor public and communal areas within the Municipality, including within state offices and facilities. The Attorney General’s memo sows confusion and unnecessarily risks the health and safety of Anchorage residents who do business with or work for state agencies … Undermining a local public health order with respect to state buildings is … bad for the health of our community. The Attorney General’s memo also puts State of Alaska employees in legal jeopardy by giving them inaccurate legal advice.”
No mandate, but precautions in place
At the Department of Motor Vehicles on Monday, visitors were being asked to make appointments, and other anti-COVID measures were in place, even if masks weren’t required.
“The customer service counters have barriers installed, stations are sufficiently distanced, employees can wear masks if they choose to, sanitizers are available, and cleaning supplies are kept in stock for increased cleanings,” said Kelly Hanke, special assistant to Department of Administration Commissioner Kelly Tshibaka, by email.
Similar procedures are in place at the Alaska Department of Fish and Game, which is encouraging Alaskans to buy licenses and permits online.
Permanent Fund dividends will be distributed Wednesday, but the lobbies of PFD offices “continue to be closed for the safety of Alaskans,” dividend division director Anne Weske said. She’s encouraging Alaskans to check their status online or by phone. There’s also a dropbox at the PFD office for necessary paperwork.
The Alaska Court System has required masks since June 1.
The Alaska Legislature, also an independent branch of government, is requiring visitors to wear masks at the Anchorage Legislative Information Office and other facilities statewide. Nonpartisan employees of the Legislative Affairs Agency are required to wear them. Partisan employees — those employed directly by lawmakers — are not required to wear them.
Read the memos:
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