City Council Meetings

Page 1 CITY COUNCIL PROCEEDINGS JULY 3, 2020 MINUTES OF THE SPECIAL MEETING OF THE CITY COUNCIL Wichita, Kansas, July 3, 2020 Friday, 02:00 AM The City Council met in special session with Brandon Whipple, Cindy Claycomb, Bryan Frye, Becky Tuttle, James Clendenin, Brandon Johnson and Jeff Blubaugh via phone. Staff Members Present: Bob Layton, City Manager, Jennifer Magana, City Attorney, and Karen Sublett, City Clerk. OPENING OF SPECIAL MEETING Mayor Whipple thanked staff for coming in on their day off to accommodate us for this special meeting. Stated this is something that none of us wanted to do be we also know that this is a once in a 100 year pandemic that has taken more American lives that anything we have faced. Stated we also know there is a correlation with this spread in large gatherings, so the day before the Fourth of July is when this is supposed to take affect according to the Governor's order. Stated the emergency meeting by the County Commission prevented that, forcing us to respond in due time, which is why we are here. Mayor Whipple called the Special Meeting to order at 2:00 p.m. Reading of the call for the meeting by the city clerk: Pursuant to City of Wichita Code Sec. 2.04.210 titled "Special meetings." I, Brandon Whipple, Mayor of Wichita, hereby call a "special meeting" on July 3, 2020 to take place at 2:00 p.m. in the City Council Chambers. The objective of the meeting is to discuss and vote on an ordinance concerning the mandating of the use of masks and face coverings in public. Consideration of the business in the order embraced in the call for the meeting. IX) COUNCIL MEMBER AGENDA 1.) ORDINANCE REQUIRING THE WEARING OF MASKS OR OTHER FACE COVERINGS. Attachment: Agenda Report No. IX-1 Attachment: Ordinance 51-307 Attachment: Emergency Declaration 51-307 Attachment: Email public comments 1  Page 2 CITY COUNCIL PROCEEDINGS JULY 3, 2020 Attachment: Email public comments 2 Attachment: Email public comments 3 Attachment: Email public comments 4 Attachment: Email public comments 5 Attachment: Email public comments 6 Attachment: Email public comments 7 Attachment: Email public comments 8 Mayor Whipple recognized County Commissioner, Lacey Cruse. 1) County Commissioner Lacey Cruz stated I come to you as a member of the Board of Health, as a colleague, of a constituent of District 6, as an essential worker, as a mother of a school-aged child and a friend. Stated I come today to ask you to vote to protect the health and wellbeing of the most vulnerable in this community. Stated I come to you to ask you to support your local Health Department who is overwhelmed and understaffed. Stated I ask you to vote to support the medical community, to support your hospital systems and to support our business community. Stated please put aside personal relationships within the Council, and to put aside how this meeting was called, and to vote for a common sense solution because wearing a mask is an easy way to protect others. Stated we only have so many things in our tool box and wearing a mask is a temporary solution but burying a loved one is a permanent one. Stated what is in front of you right now is a common sense method of preventing a worst case scenario; please vote for one of the few things that we have in our tool box to slow this spread. Council Member Frye stated I have been out of town on vacation and was not privy to the County Commission Meeting that was held on Wednesday; what was the action that the County Commissioners took. Commissioner Cruse stated the action of the Board of Health was to recommend mask wearing. Council Member Frye asked if that was the entire order. Commissioner Cruse stated in order for the Board of Health to overturn the mandate that the Governor put down in her Executive Order, we had to have some findings and was found that we only recommend, which the action was taken. Council Member Frye stated it was recommending to wear mask, not a mandate but to recommend to wear masks. Commissioner Cruse stated correct. Mayor Whipple stated he understood that the County Commission made a recommendation to finish the Ad Astra Program instead of having it mandated and asked Commissioner Cruse if she could comment on the success of mandates versus recommendations.  Page 3 CITY COUNCIL PROCEEDINGS JULY 3, 2020 Commissioner Cruse stated over the past week we had over 170 new cases over a 24 hour period; we see that recommendations don't work. Stated if a recommendation did work, we wouldn't see the spike in cases that we have seen this far. Mayor Whipple stated according to the article that was written in the Wichita Eagle, the County Health officer described the COVID-19 cases as exploding. Commissioner Cruz stated over the past month or so, each day we have seen cases in 10's and 15's but over the last week we have seen 100's. Stated at our Health Department we have lines that are backed up, the Health Department staff was overwhelmed in a sense that we cannot return phone calls, we don't have enough staff to handle the volume. Stated we had to suspend our a-systematic testing because we didn't have enough staff to handle the influx of people wanting to be tested. Mayor Whipple stated Commissioner Cruse and I have been on calls with the hospitals who have asked for mandates to be put in place. Commissioner Cruse stated every Commissioner receives an update from the hospital calls and yesterday she asked what were the cases today for yesterday's special meeting. Stated the email she received yesterday says, "in addition to Wesley's 12 plus cases in the hospital, they have one case that is admitted as a patient under investigation, their Monday numbers were six positive cases, six patients under investigation. Via Christi reports 15 COVID positive cases today, one patient under investigation, of the positive COVID cases, 13 are on the general floor and two are in the ICU. There are 13 available floor beds today and eight available ICU beds. I guess I will just cut to the chase, we are up 12 positives and we are getting very concerned. The Governor's Executive Order needs to be exercised by the County Commissioners, everyone needs to wear a mask in our county starting immediately." Mayor Whipple stated the president of Wesley Hospital sent the County Commission an email firmly asking that a mandate is put in place so they can protect our community. Commissioner Cruse stated that is correct. Council Member Frye stated to be clear, the County Commission voted to overturn the Governor's order mandating mask and that was a vote of 3 to 2 and asked which Commissioners voted in favor. Commissioner Cruse stated Chairman Meitzner, Commissioner O'Donnell and Commissioner Dennis. Council Member Frye stated you are not speaking on behalf of the Commission right now. Commissioner Cruse stated she is not speaking on behalf of the Commission. Stated she is speaking as a member of the Board of Health and on her own and nobody asked her to come today. Mayor Whipple read a quote from the County Health Officer and Health Director, "in the last 24 hours we have added 170 cases, so it is just exploding and unless there is some kind of intervention, we do not anticipate that number to decrease. We still have the Fourth of July weekend to get through" and asked Commissioner Cruse if that is an accurate quote. Commissioner Cruse stated that sounds right.  Page 4 CITY COUNCIL PROCEEDINGS JULY 3, 2020 Mayor Whipple stated on our calls and on your emails, it seems like when there is a holiday or a day in which our culture traditionally gets together with other folks, two to three weeks afterwards we see a bump in the numbers. Commissioner Cruse stated yes what we see today is what happened two weeks ago and what we will see in two weeks is what happens today. Stated we are not going to really be able to tell what happens this weekend, until two weeks from now. Mayor Whipple stated there was a bump on Mother's Day and the trend is that we continue to see without masks being worn and precautions in place, bumps in the numbers two weeks after public gatherings. Stated the medical community has made it clear on our calls that because it takes two to three weeks for it to show, if we wait on those numbers and there is a run on our hospitals, it is too late to act at that point. Commissioner Cruse stated she wants to remind people that we don't know enough about this yet and people keep saying that our hospitals are going to be overrun but what about the health system in general. Stated our Health Department is reaching out to her and asking for us to do these types of things because we just don't know enough about this disease and is nervous about what may happen, which is why she is standing in front of you today. Vice Mayor Claycomb thanked Commissioner Cruse for being here and for the thoughtful discussion yesterday. Mayor Whipple turned the floor over to 10 medical experts who shared their testimonies. 1) Dr. Steinshouer stated she is a Critical Care Medicine Specialist and what we know about what is going on with COVID right now in Wichita is that our case numbers are increasing at a rapid rate. Stated we have curves that mirror those in Phoenix or Houston. Stated our percent positive test rate as of today for Sedgwick County's dashboard is seven percent, Phoenix is percent positive is 12 percent. Stated at the beginning of June our percent positive rate was 1.6 percent, by the middle of June our percent positive rate was 2.9 percent, so the rate of spread in the community is increasing rapidly. Stated we are testing more and there are concerns that we are finding more positives because of the testing, but this outpaces the number of tests that we are doing. Stated even though we are testing more, a higher percentage of each of those tests is positive now and with that we are seeing more cases come through our healthcare facilities and have seen workplaces are losing their staff during quarantine times. Stated hospital numbers will be delayed from your cases, so as our case numbers are starting to climb, our hospitalization rates are going up at a slightly delayed time frame and our severe illness and death rate will be slightly delayed behind that. Stated we are at the early part of this curve, this is our chance to change that so looking at what is happening in Phoenix and Houston, we want to avoid that. Stated they have allocated their scarce resources plan which means they are having to choose who gets care and who goes on a ventilator because they are running out of resources and running out of healthcare equipment and staff. Stated we want to avoid getting to that place, so one of the easiest ways that we can do that is to social distance, masks and good hand hygiene. Stated we can see a one percent decrease for every 15 percent of people wearing masks, there have also been financial analysis of this and by increasing mask use by 15 percent, we can reduce GDP loss by five percent. Stated what we can do is make a huge economic impact on our community by increasing our mask utilization. Stated we have tried to ask and suggest and have had a mixed response in the community with people wearing masks. Stated we have seen communities that mandate wearing masks is not the numbers go up significantly and it changes their course of diseases in  Page 5 CITY COUNCIL PROCEEDINGS JULY 3, 2020 the community and reduces how many people get the disease and reduces both the burden to businesses and the healthcare system. 2) Dr. Rebecca Reddy stated she is a private practice pediatrician and she and her colleagues care for 7,000 plus children in the Wichita community. Stated her office group actively participates in a group called Kansas COVID Work Group for Kids and part of our recommendations from the COVID work group is how to safely return to school. Stated their recommendation has been in agreement with the American Academy of Pediatrics for the past several weeks since they released their recommendations, that kids return to school in person as much as possible and that children sixth grade and younger, return without masks but that all staff remain masked. Stated children in middle school and high school, return to school and wear masks throughout the entire day because we know that this works and we are asking this of the children of our community and yet, there is inconsistent messaging in the community for what we are requesting of the adults. Stated as a physician and a scientist and as a pediatrician, she considers herself a public health advocate as we are the ones here responsible for vaccinating children in our community, strongly supports a universal mandate on masks so that we can protect one another and slow the spread. Stated she is very concern that our children and the entire community will not be able to return to school in time if we don't flatten our curve and doesn't see another way that we can effectively do that as a population other than to mandate masking and as a lifelong Kansas resident, feels that this is very much consistent with our attitude and vibe and doesn't think there are that many people who strongly object to wearing masks. Stated in her own practice with just a recommendation that they come to her office in masks, we have at least 75 percent of our parents and families who wear masks and is somewhat dismayed that there was not a mandate that came from the County Commission because she sees that her patient population, which is very diverse and broad, was largely in favor of mandatory masking. 3.) Dr. Jacob Ott stated he is the Medical Director at Wesley Medical Center Emergency departments. Stated we are seeing a lot of new cases, probably fall out from both Mother's Day and from Memorial Day weekend and from the lifting of the state home orders previously. Stated he feels it is just the tip of the iceberg at this point and if you look at the Sedgwick County COVID Dashboard, which he looks at almost every day, you are seeing a steep increase in the curve of new cases and believes it is going to continue to go up and just this morning saw 509 new cases and it is continuing to rise. Stated he is seeing many new cases and many suspected new cases and is having to develop plans for if he has to quarantine his doctors if they get exposed or test positive themselves so he is looking at taking part of his physician team off line, which is concerning to him as well because he will have to be seeing an increased patient population with a decrease in team providers to see them. Stated there have been studies showing that universal masks wearing will decrease the spread or help decrease the spread of COVID, it will also help improve the economic impact and how it will improve the GDP. Stated one of the opposition points is that this is a freedom limiting thing but wearing masks is actually a freedom increasing rather than a freedom limiting issue. Stated he wants to add his voice to the voices that you have already heard recommending that we mandate rather than recommend mask wearing. Stated we have a history of mandating laws public safety measures, we mandate seat belt wearing in cars, we mandate child safety seats in cars because we know these are public safety measures that work and save lives; this is no different and wants to strongly recommend to this Council that we mandate that people wear masks in public during this time of great danger. 4) Dr. Sheryl Beard stated she is a family physician here in town and works for Ascension Medical Group and is a primary care physician and sees patients of all ages. Stated the most recent up to date evidence in Atlanta, shows that masking does reduce the spread of the Corona Virus so instituting mandatory masking will help reduce the spread and help keep the curve flatten so that we can go on and continue to have our  Page 6 CITY COUNCIL PROCEEDINGS JULY 3, 2020 kids go to school and continue to have our parents go to work and not be ill. Stated she likens the spread of Corona Virus and masking to having sex and condoms. Stated everyone wants to sort of share each other’s air and in order to protect ourselves we need to wear masks in order to share each other's air. Stated if you think of it is that context that might help ease people's minds of them being too close to someone and risk the chance of being infected. Stated if we want to continue to go to the hairdresser and have football games this fall and have our kids in school, thinks it is very important that we have mandatory masking. 5) Dr. Steve Davis stated he is a family practice doctor in the community and has been following some of the comments on You Tube and wants to address a few things just for clarity. Stated he is seeing a lot of information that people are really focusing on is how effective masks might be in blocking the transmission. Stated our job here is essentially what is called source control among infectious disease, which is an effective old school technique that keeps people from spreading things like Tuberculosis and other respiratory pathogens and this has been around for a long time. Stated it is a tried and true low-tech type of intervention and in this case sees a lot of people bouncing around about particle size and that kind of stuff and there is a wealth of information in the CDC about this but essentially the reason we use the .3 micron particle size that particles that are smaller than that can get through the fibers of a mask even an N-95 but they lack the mass to actively effectively penetrate. Stated particles that are larger than .3 microns are generally caught within the fibers, which is why this is kind of the gold standard size when they are talking about N-95 masks. Stated surgical masks are thought to block between 60 and 80 percent of airborne particles and cloth masks will block some airborne particles. Stated when you are talking about protection that way, it is important to understand that feature of the science of it. Stated then you get into respiratory droplets versus airborne particles and respiratory droplets generally travel up to about six feet before they land on something and stop moving and this virus is spread almost exclusively by respiratory droplets so if you are wearing a mask, you actually stop respiratory droplets effectively from coming out of that person and stop transmission. Stated airborne particles is one of the reasons we don't want people sitting in rooms together because those airborne particles go into aerosol, they are floating around in the room and people can breathe those and that is why healthcare professionals wear N-95s in many circumstances because they are trying to shelter out those particles that become suspended in the air and after we are exposed to multiple patients, we are breathing that air that might be accumulating viral particles. Stated this is not a controversial issue, it is very simple stuff. Stated he has seen a lot of comments from people saying they don't really know anybody that has had the disease, which is not an effective argument. Stated we know that the disease is out there and we know that it spreads like wildfire when left unchecked and eventually everyone will know someone who has had it and everyone will know someone who had had a complication or died from it if we wait and we don't want to wait for mass gatherings like the Fourth of July weekend. 6) Dr. Patricia Wyatt-Harris stated she has been in private practice in OB/GYN for 34 years here in Wichita. Stated she is also the president of the Sedgwick County Medical Society and this has come up so quickly that we didn't have time to have an official board vote on a mandate from the medical society but physicians in this community and public health officials, are overwhelmingly supportive of a mandatory mask rule. Stated if we don't do this, we are going to be back in a situation where we have to shut things down, we want people to be able to go back to school in the fall and with the current trend, is afraid we are going to have to go back to the shutdown that we were in before. Stated as an OB/GYN physician, has overwhelming support from the OB/GYN physicians for a mask mandate in Wichita. Stated a lot of people are saying they don't have it and that they don't know anyone who has it, so why do I have to wear a mask. Stated the most important time to protect people is during the a systematic time when they can spread the virus, a lot of people aren't going out when they are sick because they don't feel like it but  Page 7 CITY COUNCIL PROCEEDINGS JULY 3, 2020 when they are out and keeping our businesses open, it's the time when they are a systematic that they are going to be most likely to spread this and we are protecting people from us spreading it to them by wearing a mask. 7) Dr. Tom Moore stated he is an infectious disease physician and is a life-long Wichitan and trained with Dr. Fauci. Stated his position on this has been made public and very clear and one of the problems we have experienced is that there has been a mixed message in the past when this whole problem started. Stated there was a shortage of masks and we didn't want everybody to have a mask because we wanted to save them for healthcare workers and there were some data that suggested that masks actually increased the risk of infection because people were constantly touching their faces. Stated since then we have learned so much about this virus and its transmission that the message has changed significantly and can now say with absolute confidence that the science is very clear that masks save lives. Stated one concern we all have is that we don't know if it is now too late as with the case of Arizona and Houston, they are acting at a point where Houston has run out of ICU beds, they have expanded their capacity and expect to run out of all hospital beds in the next week and they are just now starting to talk about mandatory masks, which is too late. Stated he does not know if a mandatory mask order with the City will prevent the deluge of cases that we may see but without a mandatory mask order, we definitely will see a tsunami of cases that will threaten to overwhelm us and will definitely cost lives. Stated this is a public health emergency and the problem is, that it is more pervasive. Stated we have public health initiatives that mandate seat belts and kids in car seats, all which have been proven to save lives but this is more pervasive because this is an invisible threat that no one can see when it is being transmitted. Stated this is a point in which we need to act in order to stop transmission of this virus or at least block the transmission of the virus and prevent it from taking more lives. Stated the simple message is that masks save lives. 8) Dr. Wes Kirk stated he echoes everything that has been said by his colleagues, he is an internal medicine hospitalist at Wesley Medical Center as co-director of our group and was with our Crisis Care Committee with COVID response here since its inception. Stated the things we are seeing in other states where they are now having to back off and now do mandates or close down parts of the economy that had previously been open and thinks this is our warning signal of now is the time before we get to that point if we haven't already missed it. Stated a lot of what he has heard out in the community from friends is that they don't have symptoms or that they don't know anybody who has been infected, so they feel that the risk is low. Stated we are starting to see more of those patients come in for other things and are getting tested for Corona and are turning up positive and have no idea where they could have gotten it. Stated he feels that wearing a mask is something that we can easily do for our neighbor to show that care and concern for those around us who are maybe more likely to suffer the consequences and thinks the ask of wearing a mask is much less than the potential if things were to get out of control and we would have to back off of the opening of the economy, which is a much bigger ordeal and would cause much more harm than simply wearing a mask would be. Stated a mask mandate at this point is warranted to help emphasis the dire need of wearing them. 9) Kimber Kasetts RN and Director of Health Services for Wichita Public Schools stated she also serves as the president of the Kansas School of Nurses organization and is a member of the National School of Nurses organization. Stated one of their concerns is how to return to school in the fall safely for staff and students, which their foremost concern and priority is health and safety. Stated we are advocates for children in our community as well as the adults and the staff in our schools. Stated a lot of school districts are currently working with KSDE including Wichita public schools and we are looking at the recommendations from the Kansas COVID Work Group for Kids, which is health care providers from all across state giving evidence-based recommendations to school districts on the return to school and  Page 8 CITY COUNCIL PROCEEDINGS JULY 3, 2020 recommending masks for students age 12 and up and for all staff in the schools, visitors, vendors and volunteers. Stated Wichita public schools has already implemented mandatory mask wearing for staff members and we are seeing that people are doing that, they want to be safe. Stated we conducted a survey of our staff and our family's and the number one concern with returning to school was safety for themselves and their children. Stated she strongly asks to mandate mask wearing in public places; our kids need to get back to school not only to learn but for their social and emotional health and well-being to have access to food and care. (Council Member Clendenin momentarily left the bench) 10) Dr. Joe Nold stated he is a general and trauma surgeon, critical care specialist and the president of the medical staff at Via Christi St. Francis and Medical Director for Surgical ICU. Stated as a surgeon he wears a mask the majority of the time and wearing it out in public is a nuisance sometimes but it is the safest thing that we can do. Stated as a surgeon, our patients that come in that are a systematic COVID carriers are at a tremendously higher risk for complications with even routine surgeries. Stated whatever we can do to slow down the spread of the Corona Virus before patients get to us, helps us out and helps the patients out tremendously. Stated it is difficult sometimes to convince people to do this and we don't like to mandate things but this is the safest thing to do. Stated as an intensive care physician, he is also part of the team that is in charge of scarce resources when we become overwhelmed, so there is a team of people that take calls and are involved in this and we are the ones that have to decide who gets a ventilator and who doesn't if we run out of them and who gets an ICU bed and who doesn't. Stated this just doesn't affect patients that have the Corona Virus, if you are in the hospital and we run out of ventilators; if you had a heart attack or a stroke, or any number of surgeries and you are sick you go to the same pot of patients that are fighting for a ventilator. Stated that is a very difficult decision that hopefully we don't have to make but may have to make that decision if we don't slow down the growth of our spread. Stated we don't like to mix medicine and politics, he is a life-long Libertarian and does not like to be told what to do but using the freehand of the free market counting on that to guide people's choices and to let things work out; that counts on people making rational decisions in their best self-interest and the best way we can do that is to wear a mask. Stated whatever we can do to trust the expertise of all the healthcare providers that are on this panel today, to listen to the two experts in pulmonary diseases and infectious diseases. Stated it is a simple easy thing to do and it gets us back and if we can do the simple things we can avoid draconian measures where the government has to shut down businesses, this gets us back to normal and gets our kids back to school faster. (Council Member Frye momentarily left the bench) Vice Mayor Claycomb thanked all of the doctors and healthcare providers today and appreciates you sharing your expertise and experience with us. Council Member Clendenin thanked all of the health professionals for taking time out and being here today on your busy holiday weekend. Stated his issue isn't with any of the facts that our medical community has made today, does not want to dispute anything they have said and does not have a doctorate but it is his job to take a look at the law and see what we can and can't do and what our purview is. Stated K.S.A.65-119 gives the Joint Board of Health the authority to handle issues of infectious or contagious diseases, the state does not give us authority to make an ordinance that would even include through Home Rule, to govern the handling of infectious or contagious diseases, it gives it to the Board of Health. Stated we have to be very careful about overstepping our boundary, we care and a lot of people are scared but making this decision because we are scared and because it is something that we feel like we  Page 9 CITY COUNCIL PROCEEDINGS JULY 3, 2020 need to do, does not give us the authority to do it. Stated we also had House Bill 2016 that gave extra authority for the County Commission to do what they did yesterday, whether we agree with it or not they have the authority to do that and according to K.S.A. 65-119, we aren't the Board of Health, we do not have that authority to act as the Board of Health and to act in a way that would make a decision based on infectious or contagious diseases. Stated this really does lye with the County Commission. Stated he knows that our Attorney General has been reached out to but does not know if he is going to give an opinion, he did give an opinion on House Bill 2016 but it is very clear that counties have that sole authority. Mayor Whipple stated you mentioned that you don't have a Doctorate, does that include a jurist- Doctorate, which is required to practice law. Council Member Clendenin stated the citizens elected him to read and look at the law and interpret the law and has to vote on ordinances that we put into law and thinks it shouldn't matter if he has a law degree. Stated if he is voting on laws he has to be able to know if we have the authority to that. Mayor Whipple asked our legal staff to address the legal concerns of Council Member Clendenin; do we have the authority to pass an ordinance such as this. Jennifer Magana City Attorney stated as the agenda report specifies, this is operating under the City's Home Rule authority which derives from the Kansas Constitution. Stated this is separate and apart from any statutory scheme, the county's and the state have special powers under statute for emergency operations, there is a Chapter 65 that talks about county's authorities as a Board of Health or various boards of health. Stated it is her opinion that this is different and apart from that, it is not clear to her that Chapter 65 specifically, intentionally and clearly preempts local authority to act under Home Rule, there is a framework to look at whether state law has preempted the field, it has to actually present a conflict from what you are trying to do at a local level from what the state law says. Stated she believes under the City's Home Rule authority, which is to regulate matters of local concerns like health, safety and welfare that this ordinance operates under that authority and like any other ordinance can be challenged. Stated the basis for this ordinance in her opinion is local Home Rule under the Kansas Constitution. Mayor Whipple asked if the Attorney General reached out to her and said that we cannot proceed with this. Jennifer Magana City Attorney stated no. Mayor Whipple asked if it is her legal opinion that there is no interpretation of the Kansas statute that would prevent us from moving forward with this health ordinance. Jennifer Magana City Attorney stated there is no Kansas published case that would address this particular ordinance and can look at other things in interpreting the Home Rule authority that we have and believes in similar cases based on these facts the best that she can tell. Stated Home Rule would be an appropriate source of authority for this ordinance. Mayor Whipple stated he wanted to make sure that we are in our legal authority so that we can suppress any concerns that we would be outside of our jurisdiction.  Page 10 CITY COUNCIL PROCEEDINGS JULY 3, 2020 Council Member Johnson thanked our medical professionals for taking the time today as his colleagues have, to be here and provide your expertise and some powerful information that addressed a lot of the social media experts that he hears from as well and this is something that he will continue to share for them to hear your thoughts and perspectives. Vice Mayor Claycomb asked legal staff, there was a question if the AG had reached out and asked us to stop this; would that be typical. Jennifer Magana City Attorney stated no it would not. Council Member Frye asked legal staff if the AG has seen this proposed ordinance. Jennifer Magana City Attorney stated she has not shared it outside of City staff and elected. Council Member Frye stated he wants to note that earlier this morning, we got it for the first time. Jennifer Magana City Attorney stated that is correct. Mayor Whipple asked if it is typical for the AG to see an ordinance before we pass it. Jennifer Magana City Attorney stated not in her experience. Mayor Whipple asked Deputy Police Chief Salcedo to approach the podium. Stated one of the things we are trying to avoid is another lock down. Stated during the lock down there was some concern that issues of domestic violence went up, that when people were in lock down we saw those numbers rise and asked DC Salcedo if he can confirm that. Deputy Chief Police Salcedo stated we were observing an increase in domestic violence before COVID and there was a slight jump but was already trending up before COVID. Mayor Whipple stated during the lock down, did you or other officers experience any undue stress while trying to enforce the lock down. Deputy Chief Salcedo stated not anything noticeable. Mayor Whipple stated the Chief told him that he felt the lock down was causing more problems with folks who were concerned about being locked down; is it your experience that wasn't the case. Deputy Chief Salcedo stated any time people are cooped up or locked down, you are going to have a lot more family stress and we did see some of that. Mayor Whipple asked how they become aware of family stress; is it because it magnified itself as a crime or do you get called out for those situations. Deputy Chief Salcedo stated mainly we get calls. Mayor Whipple stated when people are cooped up during a lock down, it actually causes more family stress, which includes more policing.  Page 11 CITY COUNCIL PROCEEDINGS JULY 3, 2020 Deputy Chief Salcedo stated that is a fairly accurate statement. Mayor Whipple stated if we wanted to relieve family stress and issues of domestic violence and your workload burden, we should try not go into a lock down; is that a fair statement? Deputy Chief Salcedo stated we work at your leisure and can't say that is correct and cannot answer that. Mayor Whipple stated during his conversations with Chief Ramsay it seemed that a lock down caused your folks and other folks and particularly domestic violence and have had the domestic violence community reach out to us during this and wants to get on record that avoiding a lock down has more than just an economic impact. Deputy Chief Salcedo stated we did see a slight uptick in family violence during that period. Vice Mayor Claycomb asked DC Salcedo if he has seen the ordinance that we are being asked to vote on today. Deputy Chief Salcedo stated no. Council Member Blubaugh stated he appreciates everything the Deputy Chief has been doing and knows that they have been under a lot of stress with the protests and wanted to see if he had a good grasp on how you guys would be able to handle and enforce such an ordinance or do you believe that it would overwhelm our current 911 and police response. Deputy Chief Salcedo stated Chief Ramsay has actually reached out to peer agencies around the country and what we found out was there are three components that are very important before going into straight enforcement which is, education, information and officer discretion. Stated the position you find ourselves in is as the governing body is that this goes to the very core and this goes with the Fourth Amendment. Stated we would detain a person, identify them and get through those issues so it is not a simple, here is a citation; it involves a lot of things. Stated he thinks we would engage in education and information and discretion before we went straight into enforcing it. Stated if this ordinance is passed, he would like for our officers to have masks to educate and hand out because there are populations in the City that might not be able to afford a mask. Mayor Whipple stated hopefully the intent would be that we value education and arm our officers with the resources with masks. Stated his understanding is that when we had the lock down, education was incredibly effective. Deputy Chief Salcedo stated yes it was powerful. Mayor Whipple stated education has apparently been working. Deputy Chief Salcedo stated that is correct. Mayor Whipple stated those who might be worried about the fines that are quite modest and hopefully we will not to get to those given our recent history and success of education. Deputy Chief Salcedo stated yes.  Page 12 CITY COUNCIL PROCEEDINGS JULY 3, 2020 Council Member Clendenin read from the AG's memorandum to Kansas prosecutors and law enforcement based on the mask order and the county's authority on that. Stated to our legal staff, if the county has made its decision and the AG says that because they have made that decision that a mask ordinance cannot be enforced because they made it less stringent; how can we pass a law that makes our law enforcement enforce a mask ordinance. Jennifer Magana City Attorney stated this is the AG's opinion analyzing the Executive Order and House Bill 2016 that interpreted statutory framework the analysis to see whether the statute is preempted as a process. Stated we believe again under Home Rule that there has to be a clearly stated area of law that clearly conflicts and it is her opinion this has not occurred. Stated we believe that Home Rule is not in conflict with anything in Chapter 65 at this time. Council Member Clendenin stated you are saying that if we were to create an ordinance in opposition to what the County Commission had ruled, then we have the ability to preempt the Board of Health in a decision that they make; we can go around their authority. Jennifer Magana City Attorney stated in legal terms this isn't going around or particularly contradicting that action, this is acting independently and apart from that framework under the City's Home Rule ordinance. Council Member Clendenin stated do you believe the Kansas Constitution allows us to act independently in this case based on the law. Jennifer Magana City Attorney stated based on what she has analyzed, we have that authority under Home Rule. Dr. Reddy asked if she could comment. Stated she wants to clarify the comment that Council Member Clendenin may have inadvertently made when he stated that we were scared of COVID as healthcare professionals. Stated we are not scared, we are extremely concerned and outraged potentially that our community has not been able to come together with such a simple ordinance as masking to protect our citizens and our patients. Stated she does not know if ever in her career seen a group of professionals, her colleagues come together with such bravery in the face of caring for patients who can potentially infect us with the disease that kills us. Stated she expects the same kind of bravery from her elected officials and knows that many of you as City Council Members feel that you are being put in a difficult position but expects bravery of those who she has voted for and doesn't understand the politicization of this issue and asks you to examine your conscience in the medical professionals who take care of you, your grandparents and your children and show bravery in the face of your uncertainty and concern about your own political future. Council Member Clendenin stated his comments were not directed at the medical community but at those from the community that have emailed us and comments made to him that there is fear in the community. Mayor Whipple stated we will not go out to Century II for public comments. 11) Aaron Mount thanked the Council Members for calling this meeting to talk about this very important topic. Stated he is a student at WSU, works and suffers from some health issues that puts him at risk. Stated since the stay at home order was given, he has worn a mask almost every single day to work, over the last few days he has noticed that more employees where he works are starting to wear masks but  Page 13 CITY COUNCIL PROCEEDINGS JULY 3, 2020 noticed that only 10 to 20% of people specifically guests who come into the hotel are actually wearing them. Stated his opinion is that mandating a mask order is paramount in protecting our essential workers like me and my peers. Stated he knows the County Commission was concerned about the ability to enforce such an order but is also concerned because he is the one that has to enforce that policy at his job. Stated this isn't brand new, we have seen things like this before such as the Kansas indoor Clean Air Act that was passed; this is an issue of public health. Stated if the Council were to strongly recommend like the County Commission did, it is not going to do anything and has seen what "strongly recommends" does and that is just a way government to say that they want to support something but not actually go out and support it. Stated his job cannot handle another lock down and will probably have to shut down if there is one so if a mask mandate is not ordered, he will possibly lose his job because of other people's negligence would possibly die and you all have the power to prevent that, so use it. Vice Mayor Claycomb asked Mr. Mount if we pass an ordinance, how he thinks his place of work would enforce that, what measures would he use. Aaron Mount stated the same way we enforce our current no smoking policy in our lobbies and in our rooms, we ask people to leave and if they don't leave we call the police. 12) Pamela Clarkson stated she works for the City of Wichita at the library and has not been able to go back to work since our lock down because she has a small child and has to stay home with her. Stated she will be running out of leave in the next month and doesn't know what she is going to do then depending on what schools do. Stated another shut down could put her husband's place of work out of business as well. Stated she wants the Council to mandate masks because we have seen what strong recommendations do, which appears to be basically nothing. Stated she personally knows people who, though they know it is important to wear a mask are too self-conscious to be the only one wearing one in a store; don't estimate the power of peer pressure. Stated if it is the law it is no longer a political statement for her to be wearing a mask, she is just obeying the law. Stated it also gives businesses somewhere to go, they don't have to make it their policy and risk alienating their clientele, it's the law everybody is doing it. Stated she is asking the Council in its capacity as stewards of our community, to make decisions to protect us and to make decisions in the best interest of the community at large and thinks that is your responsibility and thinks this is what will do it. 13) Anitra Stewart stated the Economic Policy Institute says that black and brown workers are disproportionately affected by Corona Virus in general. Stated this happens in a variety of means and according to the Economic Policy Institute, black workers make up one in nine workers overall, they represent 11.9% of the workforce, however, black workers make up one in six of all front line industry workers, they are disproportionately represented in unemployment, grocery convenience and drug stores, 14.2% public transit, 26% trucking warehousing, 18.2% postal services, 17.5& health care, and 19.3% in childcare and social services. Stated people of color are disproportionately affected by Corona Virus in general according to the CDC, Hispanics account for 34.4% of all COVID-19 cases, blacks and mixed people account for 24.9%, Asians make up 3.4% and Native American people make up 1.8% of Corona Viruses. Stated minorities in general make up about 42.1% of the population but 64.5% of all Corona Virus cases are people of color so in order to protect the most vulnerable people in our community, is asking that we go ahead with this legislation because like all of the people before her have said, masks help reduce the spread of Corona Virus, which is currently affecting our community of color disproportionately.  Page 14 CITY COUNCIL PROCEEDINGS JULY 3, 2020 14) Leanne Bradley stated she is a non-profit accountant, wife and mom and is speaking today as a citizen and constituent of the District 5 and is here to voice her support of the mandatory mask policy. Stated the science and data is becoming increasingly clear in areas where masks are mandatory the spread of Corona Virus is significantly mitigated if there is a policy around using face masks in place, it has a direct and significant impact. Stated our country was founded on personal freedoms and liberty but personal freedom without personal responsibility and accountability is chaos and has been proven to us that a large swath of our citizens feel little obligation to keep those around them safe via mask wearing. Stated recommendations don't work, if you go to any grocery store or gas station wearing a mask, more than likely you are the odd man out. Stated she loves her country and city and feels a duty to do what she can to keep our citizens safe and healthy and considers mask wearing her patriotic duty. Stated sporadic mask wearing is not helpful in reducing transmission, patchwork policies don't work. Stated one purpose of our government is to ensure that the good of the collective whole takes priority over individual whims and feelings, masks save lives. 15) (No name given) stated as a Mayor, Sheriff or Governor believes that all of those people have taken an oath of office to get into the position that they are in and believes the oath of office says that I don so solemnly swear to protect and uphold the Constitution against foreign and domestic enemies. Stated she takes this freely and without evading her duty to public service. Stated we are wearing masks to prevent another shut down, in the shutdown ordinance for Kansas it says unless you are an essential business, you must shut down. Stated she does not know if you are familiar with the 14th Amendment that was created after slaves had been freed, they wanted to buy land and they made a law that said you cannot buy land unless your grandparents own land and can buy land also. Stated every American born and naturalized has the opportunity to pursue life, liberty and happiness under equal protections of the law. So if it is her dream to sell Barbie dolls, and it makes her happy to make a living selling Barbie dolls and her neighbor wants to sell groceries, it is not constitutional for anybody to make a law that says I have to shut my business down but my neighbor doesn't. Stated she works hard for her money and doesn't want to use it on a mask when professionals wear this every day, they change it often, they are not reusable masks, they are disposable; why would I spend my hard earned money on a mask that she doesn't even want to wear. 16) Joseph Clarkson stated he works an essential job at Panera Bread, lives with his parents, his mother is immune compromised and lives in fear that he might pass this disease on to her. Stated he is pretty much the only person who wears his mask at his job and maybe 10% of the customers who come into eat wear a mask and thinks we have seen clearly that strongly recommending does very little and is here to strongly encourage you to vote yes to make this mandatory. Vice Mayor Claycomb asked if we are ready for technical questions on the ordinance or just comments. Stated she has some questions for legal on the ordinance. Mayor Whipple stated yes we can discuss the order now because the conversation has come back to the bench. Vice Mayor Claycomb stated to her it looks like item 1c. is in conflict with item 2e. Stated she wants to make sure that we don't pass something if we have a motion that is in conflict and would make us subject to law suits. Jennifer Magana City Attorney stated this language was patterned after the Executive Order, it is not adopted under the authority of the Executive Order but was language used for that purpose. Stated this language can be modified if you have suggestions.  Page 15 CITY COUNCIL PROCEEDINGS JULY 3, 2020 (Mayor Whipple momentarily left the bench; Vice Mayor Claycomb in the chair) Vice Mayor Claycomb stated item 1e. and item 3g., talks about individuals being outdoors and not being able to maintain six feet and then there is an exemption for that for athletes and thinks we should be clear. Jennifer Magana City Attorney stated it is difficult for someone to draft these types of things without some language that is going to raise a question or be considered a conflict and are open to any suggestions that we have to clarify. Vice Mayor Claycomb stated in SECTION 4, 2. A person, firm or corporation convicted of a violation shall be punished by; asked who is liable. Jennifer Magana City Attorney stated that language is similar to other ordinance penalties we have in other ordinances, so in those cases it is a factual question to determine who is in charge, who has acting authority and who might be the person that is corporate authority. Stated it doesn't come up that often but that is the language that is in our current ordinances for other violations. Vice Mayor Claycomb asked if it would be up to the police. Jennifer Magana City Attorney stated it would be a factual question for the police and the prosecutor would look at it as what is a rational approach, factually supported and who would have authority to make a decision. Stated it would be a case by case it doesn't come up that often but is accepted language. Vice Mayor Claycomb stated on the agenda report, it says it has no financial considerations but if the police are going to have to be educating and informing enforcement; thinks there is going to be a financial consideration if they are going to be asked to do extra work outside of what they normally do. Jennifer Magana City Attorney stated that is something that the Police Department and Finance Department would weigh in on in a process. Bob Layton City Manager stated he does not anticipate that there will be additional staffing, it would be a matter of distribution of workload and doesn't know if you can put a number on that, it is a matter of priorities and moving away from some type of calls in order to be able to do this work. Vice Mayor Claycomb stated it should probably be somewhere in the agenda report because there will be a staffing implication even if it is not a financial one. Bob Layton City Manager stated yes it is a matter of workload. Council Member Johnson stated as an elected official, feels it is his job to do what is in the best interest of the public and especially public safety. Stated as a member of the Black Alliance and being a black man, thinks it is his duty to do what is best and in the best interest of the populations who are more at risk to catch COVID-19 and more likely to die. Stated we have seen this virus have a negative impact on black people around the country and in the state of Kansas. Stated he takes this virus very seriously and is typically supportive of any effort that keeps the public safe including wearing a mask and his hope is that everyone watching wears a mask. Stated he has questions he wants to ask particularly about the  Page 16 CITY COUNCIL PROCEEDINGS JULY 3, 2020 ordinance, which is not that he is opposed but has some information he would like to get some answers on. Stated looking at SECTION 3, 2a. for clarification for him and the public, is this saying that if you are at work you need to be wearing a mask. Stated looking at the wording if you have a non-profit organization the public can come into that office and if he was in there he would need to wear a mask. Jennifer Magana City Attorney stated the courts would give ordinances the reasonable reading the ordinary meaning of words would be applied and thinks it is reasonable to expect that from this language. Council Member Johnson stated SECTION 3, 1a. speaks to indoors and automatically thought of Home Grown so using that type of business model that has indoor and outdoor spaces for customers, would it include a business like that who has already taken precautions to socially distance with customers who are sitting at a table that is open and six feet away from another table; would they still have to wear a face mask as well. Jennifer Magana City Attorney stated it would be given the practical reading so if distancing is just not possible, thinks masks would be required but where it is possible, thinks that is the exemption. Council Member Johnson in SECTION 3 under the Business and Organizations, looking at exemption b) persons with medical conditions, mental health condition or disability that prevents wearing a face covering, this includes persons with a medical condition for whom wearing a face covering would obstruct breathing or who are unconscious or incapacitated or otherwise unable to remove a face covering without assistance. Stated he wants clarity for the public and represents an area called the Timbers, which is a community of Wichitans who have one or more health conditions or disabilities and has had a few members of that community ask if this would apply to them. Stated some of them cannot physically put on a mask or if they have one on it could be detrimental to their health so by reading this would assume that answer is no. Jennifer Magana City Attorney stated she would agree. Council Member Johnson stated while we were talking he tried to catch You Tube and some social media comments; would that also apply to individuals who have serious asthma. Jennifer Magana City Attorney stated this language has medical conditions and thinks that is a broad phrase that could include that. Council Member Johnson stated SECTION 4, 2. regarding the potential violations, thinks enforcement of this would be necessary for some people to take serious but is concerned about the low-income communities and would hope that if this is affirmed today with the potential penalty, that law enforcement would hand out some of the masks that they have and think about the potential for the downward spiral of poor individual getting a ticket and what that can actually do to them. Stated if we kept it that way, understands the need for enforcement but if there was also some other alternative that we can think about today, to help out in those types of situations. Stated it was recommended by three people that rather than penalizing the individual to put more of the onerous on businesses because they have come up with practices to make sure folks either have a mask before they enter or they are monitoring that and thinks that would help add a little more control of this. Stated SECTION 5 says that this is in effect until modified by the Council by repeal or extension; essentially there is no ending date which will allow us the flexibility to monitor spikes in the City and potentially vote at some point to end that. Stated would that be an immediate ending or would it have to go to a second reading since it is an ordinance.  Page 17 CITY COUNCIL PROCEEDINGS JULY 3, 2020 Jennifer Magana City Attorney stated this language is similar to other ordinances in the way that it can be repealed or modified. Stated the Council has authority to create a particular sunset date or another mechanism for the ordinance to become repealed. Council Member Johnson stated personally he would like us to consider setting a 30-day review so we are not at the last minute coming up with let's end this and trying to put together a report and bring that back to Council. Stated if we had a 30-day review that was maybe the first week of August, we could look at what the trends have been and say at that point we want to vote to end this or not. Stated he doesn't want to leave this open ended. Stated today he will be supportive of this because of the risk, where we are right now and hearing our medical professionals and knowing the impact this could have on lower income communities and communities of color but wants to make sure in our haste to address this, that we get this right and try and think through unintended consequences. Council Member Tuttle stated the end date is something that is going to be an issue for her and the last thing we want to do is to call another special meeting to repeal it and thinks that needs to be cleaned up. Stated SECTION 4, 2. seems to be an issue for many of us and back to the financial considerations there is going to be some logistics that we need to work through and while it was said that the fines are modest, to some people it isn't modest. Stated she doesn't have a better solution but worries if somebody is not wearing a mask it could be because they cannot afford one or they do not have access to one and fining them is not helping the problem. Stated it is confusing to her on who is going to get the fine and how that works and the end date. Mayor Whipple stated he is going to take the Chair's prerogative and recess one hour so that members of the Council can meet with legal with proposed amendments one on one and then we can come back and if we need an additional hour, will recess for an additional hour. Council Member Tuttle asked staff if the Mayor can call a recess without a vote. Jennifer Magana City Attorney stated a recess can be made at a reasonable time and for reasonable purposes during meetings providing special requests shall not be made during debate or discussion or immediately prior to a vote for purposes of influencing a vote or for harassing other members or individuals appearing before Council, which is what the City ordinance says. Mayor Whipple stated he wants to be clear, it is so that the members who have expressed that they would like amendments to be made to this document have a chance to get those amendments prepared so that we can move forward and ensure that our community stays safe for the Fourth of July as medical professionals have suggested and have a product that doesn't have the unattended consequences. Jennifer Magana City Attorney stated this is during discussion but doesn't know if it is still occurring or not. Mayor Whipple stated during discussion if it starts to show that members are okay with proceeding and doing the amendments on Tuesday, that's good as well. Stated he doesn't want to waste staff's time today with some of these smaller things that he thinks could be clarified with a one on one legal and maybe will not recess if people seem okay with it. Stated he wants to make sure we pass a good product and we are not moving too fast. Council Member Frye stated there is a lot to digest here and finds the entire ordinance extremely vague  Page 18 CITY COUNCIL PROCEEDINGS JULY 3, 2020 with no ability to provide regulatory guidance a lack of details especially as it relates to due process and enforcement and feels like a one size fits all approach. Stated there are many holes and has similar concerns with the Executive Order that the Governor issued last week and maybe that is why so many counties rejected it. Stated he feels we are hastily making a decision, that we are not fully educated on the medical science behind this. Stated yes we have had a lot of good input today but as stated before, we are not the Board of Health, that is the county's role and they have been monitoring this everyday with much greater detail and access to numbers and data than we have. Stated he is kind of in a dark spot as it relates to how much we really know and how much truth are in all of these numbers. Stated he does not feel comfortable making a decision on a Board of Health issue when that is not our purview or role and by statute this should fall on Sedgwick County and for us to say otherwise feels like a gross overstep in our role. Stated should we choose to wear a mask, socially distance and practice safe behavior, absolutely but should we use government power to exercise and adopt those behaviors. Stated he has a tough time supporting that given the limited amount of time we have had to review this, we just saw this ordinance early this morning and thinks there have been times in the past where we have asked the AG to give us an opinion on something that could be controversial to avoid potential litigation and hopes that we could do that before making a decision on this ordinance. Stated it seems like a lot of effort that could be just a defacto recommendation. Council Member Johnson stated he disagrees with the recess because we are all here at the bench and figured we should hammer it out now. Stated he agrees with the sentiment of Council Member Frye in that we did just get this this morning and understands there is a lot of reading through here and thinks we should not recess and have this conversation today right now about some of the issues we raised. Stated there were not a lot of changes, just concerns about penalties and knows there were some Constitutional concerns there but the other pieces were just wording and alternatives SECTION 5. Council Member Blubaugh stated he doesn't know who drafted this, it did come across very fast and seems like someone put a lot of thought into it but none of us got to look at it and evaluate it and has a lot of questions on it. Stated it feels very rushed and has to question where we are at as a City right now. Stated we made the decision that when people have a fix it issue with their car, we are giving them a voucher to get their car fixed but with this crucial issue we are going to set up a fine schedule and fine people. Stated he would think that we would push people to adhere to the rule rather than fining them. Stated we have a lot of work to do here and is not ready to go forward with what he has seen today. Mayor Whipple stated the ordinance is four pages with variant spacing so if we need more time, is happy to recess, to call a meeting tomorrow or tonight; what do we need to do? Stated it seem like people are overall okay with the concept but if we want to get some of these technical issues knocked out, we can do it at the bench. Stated let's entertain a motion or amendment to the fine structure, let's ensure that discretion and education is written in there so that there is no confusion. MOTION: Council Member Frye moved to delay decision on this ordinance until the Tuesday Council Meeting to give the public ample time to review this ordinance and weigh in and get an opinion from the Attorney General, which will give us time for transparency and for visibility and input from the community at a time when we absolutely shouldn't rush into this. Mayor Whipple stated if this motion is made and this is tabled, can I call a special meeting in two hours and have a new draft delivered.  Page 19 CITY COUNCIL PROCEEDINGS JULY 3, 2020 Jennifer Magana City Attorney stated if this motion is to defer until Tuesday; there is a limit on motions to reconsider, if it is viewed as a motion to reconsider, then no and thinks there is authority in the ordinance for the Mayor to call a special meeting. Stated he wants people to know that as we entertain this motion that he could make a special meeting in two hours with the amendments to this document for those who want to work this through and make sure that we follow the advice of 10 of our medical professionals who have said it is dire that this is done today. Council Member Blubaugh asked for clarification on the motion. Mayor Whipple asked the Clerk to close the roll. Stated this is a debatable motion and therefore have two Council Members on the list to speak. Council Member Tuttle stated she heard a motion to defer this until Tuesday and there was a second, which in her mind means Tuesday; then she is hearing we are going to do something in two hours and is not sure if she is voting for Tuesday or two hours. Jennifer Magana City Attorney stated she would defer to the Mayor to clarify his suggestion. Mayor Whipple stated if we were to table this ordinance as is until Tuesday that will close out this meeting. Stated there is nothing that prevents the Mayor from calling another special meeting with two hours’ notice to bring us a version of this ordinance in which the amendments that have been asked for us to do at the bench today would be included in that document, that would technically be a different ordinance and thus this one would still table in which we would discuss at Tuesdays meeting in case this new one that we want to craft would fail. Stated if the ordinance was to pass, this ordinance would still come up but is guessing we would table it again or vote it down because we might have an ordinance in place by then. Stated if this tables and we wasted a day, can he as Mayor call a second special meeting with a two hour notice to do a variance of this type of ordinance with the amendments of those folks who are here today who asked to amend this from the bench. Jennifer Magana City Attorney stated if there is a different ordinance that is a different meeting and the ordinance allows a special meeting to be called if you state the purpose of the ordinance and provide the other information that is required. Council Member Tuttle stated if it is this ordinance with revisions that is not a new ordinance it is just this one with the revisions. Jennifer Magana City Attorney stated that would call into question the motion to defer that has yet to be voted on. Council Member Tuttle stated we can in two hours put together a brand new ordinance, it can't be this ordinance with revisions. Jennifer Magana City Attorney stated if this ordinance is voted to defer which that motion is pending and hasn't been voted on yet.  Page 20 CITY COUNCIL PROCEEDINGS JULY 3, 2020 Mayor Whipple stated the topic is still open, we would just have to do about 30% alteration to this current document and therefore it would be different. Stated the topic is not tabled but this particular ordinance is off the table. Jennifer Magana City Attorney stated it is hard to say because this ordinance is a work in progress. Mayor Whipple stated there have been no amendments motioned or asked for, for this ordinance and thus as it is right now through discussion there is desire to make this a work in progress but as it stands now, this ordinance is as written. Jennifer Magana City Attorney stated this ordinance is being moved to defer for further discussion and believes the second potential meeting would be the same topic and thinks you have a challenge there in the motion to defer and then coming back to vote on the same ordinance. Mayor Whipple stated the same topic, different ordinance, we would have a different document. Jennifer Magana City Attorney stated you are getting into splitting hairs there. Stated if you are opting to call a special meeting for this ordinance, thinks this would have to be substantially different than the ordinance that is being discussed. Mayor Whipple stated it is his understanding that the substantial difference is 30% variance, is there another standard that we use here at the City. Jennifer Magana City Attorney stated the question has never come up before and doesn't have an answer. Mayor Whipple asked where we got the idea that it needs to be substantially different if it hasn't come up before. Jennifer Magana City Attorney stated it applies some general legal standards to the ordinance, this is kind of a case in first impression. Council Member Blubaugh stated he is still confused because it sounds like what you are asking for and your motion are two different things. Mayor Whipple stated he has no motion on the table. Stated Council Member Frye made the motion to defer this until Tuesday and he is asking in his authority to call another special meeting and what the options are if we were to try to follow the medical advice of the professionals and what he is reading from the bench, which is to allow us to try to work this through since the idea of a one hour recess is not what people are interested in. Council Member Clendenin stated he is going to offer a substitute motion. SUBSTITUTE MOTION: Council Member Clendenin moved to defer until Tuesday and not allow a special meeting on the topic until then.  Page 21 CITY COUNCIL PROCEEDINGS JULY 3, 2020 Mayor Whipple stated he understands on the inquiry that motion is out of order is that there is no guidance in our city code that would restrict the nearest power to call a special meeting, there is only guidance that the Council Members themselves could call a special meeting; is that correct? Stated he thinks the motion would be in violation and therefore be out of order. Jennifer Magana City Attorney stated the ordinance on special meetings says the Mayor or any four Council Members shall have the power to call special meetings of the City Council. Mayor Whipple stated there is nothing that says the Mayor or the City Council could cancel a meeting or even cancel the power of a meeting because the meeting hasn't been called yet; is that correct? Dr. Davis stated this is a health care crisis that we are dealing with right now and time is of the essence. Stated when the reopening "phased" reopening was essentially discarded right before Memorial Day, the predicted outcome was that we would see one incubation period following that decision, the impact of that decision and takes at least 14 days to see the impact of any intervention and then we had Memorial weekend and subsequently have been seeing cases spiking. Stated we are about to have the Fourth of July weekend and there are going to be numerous gatherings and massive exposure and if there is not action taken today, it is going to have serious health consequences and wants you to be forewarned. Mayor Whipple asked legal for an interpretation of the motion, can a motion pass by a single majority supersede the written bylaws as they are. Jennifer Magana City Attorney stated you would have to have a motion to suspend policy, the special meetings ordinance is very simple and says the Mayor or any four Council Members shall have the power to call a special meeting of the City Council. Mayor Whipple we want to actually suspend. Jennifer Magana City Attorney stated she is not sure if that is a very practical approach and would have to do some further research on how you would do that. Stated it may be an amendment of the ordinance and not just suspension of the policy. Mayor Whipple stated the substitute motion is therefore out of order? Stated the vote for the first motion is to defer this until Tuesday, it is the ordinance as it stands not one that we discussed as a conceptual ordinance that might be coming up. Motion failed 3 to 4 (Nays: Whipple, Claycomb, Tuttle and Johnson). MOTION: Council Member Johnson moved to modify SECTION 5 and strike "modified by the City Council by repeal or extension" and add "until August 11, 2020," which is the second Council Meeting in August. Motion carried 6 to 1 (Nay: Blubaugh). Mayor Whipple stated if we find out COVID went away before then, we could retire this before then if we chose to or extend it later if we chose to. Jennifer Magana City Attorney stated you have the authority to rescind, amend the ordinance or modify it at any time.  Page 22 CITY COUNCIL PROCEEDINGS JULY 3, 2020 Council Member Clendenin amendment section 4.2 fines, remove fines and offer opportunity of education. MOTION: Council Member Clendenin moved to propose an amendment that SECTION 4, 2. pertaining to fines to take 2. completely away and not offer a fine but offer and opportunity of education. Mayor Whipple asked Council Member Clendenin if he is looking to strike the entire paragraph or change "shall" to "may?" Council Member Clendenin stated he is asking to strike the whole paragraph. SUBSTITUTE MOTION: Mayor Whipple moved to amend that if we were to strike 2. paragraph that we would add enforcement about enforcement through education. Bob Layton City Manager stated the Department is on record on how they would approach this and is not sure you have to have language in there that says the must educate. Mayor Whipple stated he will retract his substitute motion. Jennifer Magana City Attorney stated for an ordinance to be an enforceable ordinance, there needs to be some penalty provision. Stated we cannot delegate the penalty provision to a third party or to the City Manager. Mayor Whipple stated if we took this away and this amendment passes, we would have to put in a provision but it doesn't have to be financial. Jennifer Magana City Attorney stated legally there has to be some way to resolve the infraction as it is written as an infraction, maybe proof of a mask or a fix-it type ticket. Council Member Johnson understands what Council Member Clendenin is suggesting but to legal staff's point, maybe for an individual enforcement would be presentation of a mask and education but a lot of concerns he has seen o social media is folks within businesses. Stated if the individual infraction was education and presentation of a mask but the firm or corporation, kept the language in for to; is that doable. Stated it separates an individual from a business. Mayor Whipple stated we were to have a substitute motion with 2. instead of striking all the language, it would strike "person" and then an additional language would be added enforcement for a person in violation would be the presentation of a mask. Council Member Johnson stated yes. Bob Layton City Manager stated he thinks you are creating an enforcement difficulty for Department especially if we put the language in there the presentation of a mask. Stated he assumes what you are saying is that we would present a mask and then I'm going to have to have a supply of masks that will be much more significant that what we have had in the past. Stated what we are trying to do is obtain masks  Page 23 CITY COUNCIL PROCEEDINGS JULY 3, 2020 will be helpful but cannot guarantee that all of the officers that are on the street are going to have a sufficient number of masks to be able to present to violators. Stated he is also concerned that we have to tell our officers you are not going to enforce against individuals but you are going to enforce against corporations so now they have two sets of standards that they have to present and then does that mean that company has to have a policy in place. Council Member Johnson asked if it would be the same concern by striking the "person" from that and left firm or corporation. Stated he is thinking about citizens have the freedom to be in our parks or outdoors where potentially it is a little safer and rather than having WPD approaching citizens out at parks and stuff like that, this would just focus on indoor businesses, which is where there is a lot of concern around clusters and people being in close quarters so if there was a report of a business not enforcing this, then WPD could go talk to the business owners about ensuring patrons are wearing a mask. Bob Layton City Manager stated he is trying to think if there is a better way. Jennifer Magana City Attorney stated she thinks you are talking about omitting SECTION 3 of the ordinance, which would take all penalties off persons and place them on to businesses. Mayor Whipple stated if we are being successful with you as an education and influence and we have masks and have an option to give a mask, which thinks we can without having it mandated through this, what if we drop the fines to something very small if that would allow us to stay within the legal limits of an enforceable ordinance without putting an undue process and then we could may is inserted instead of shall, which allows an incredible amount of leniency where the fine will only be enforced in most extreme situations. Jennifer Magana City Attorney stated if the question is can it be a modest amount, the fine can be an amount that you chose to set and thinks shall needs to stay because there needs to be a penalty provision. Stated this only talks about convictions. MOTION: Mayor Whipple moved to drop the fine to one dollar, five dollars and ten dollars in place of the current numbers. Motion failed to Vice Mayor Claycomb asked if it would cost us more to process a one dollar fine, than the one dollar fine. Bob Layton City Manager stated yes it will and if they are convicted there are court costs that will be assessed as well. Jennifer Magana City Attorney stated she is not sure if they would have to pay court costs for an infraction. Bob Layton reminded everyone that this would only be a last resort and if we go down to the fees that you are suggesting, he is going to incur the wrath of Judge Jones for bringing this through her court system. Mayor Whipple stated his substitute motion wasn't seconded so the original motion is to strike all of 2. Jennifer Magana City Attorney stated the ordinance would need a way for the violator to resolve the  Page 24 CITY COUNCIL PROCEEDINGS JULY 3, 2020 infraction. Council Member Tuttle stated if you have an ordinance without enforcement it is just a recommendation and thinks it is personal responsibility and is going to push that we keep some personal responsibility if this proceeds because not all of the responsibility can be on the businesses, they are trying to run a business and are not public health officials. Stated originally she had angst with SECTION 4, 2. is okay with leaving it and it seems like the best option that we have at this point. SUBSTITUTE MOTION: Council Member Johnson moved to modify SECTION 4, 2. the fine amounts to $25, $50 and $100. Motion carried 4 to 3 (Nays: Frye, Blubaugh, Clendenin). Vice Mayor Claycomb stated SECTION 3, 1c. refers to all these medical facilities and believes is in conflict with exemption number 3e. and asked if there is a way to say obtain services from the healthcare sector in settings and this list and then say but with the exemptions listed in 3e.? Jennifer Magana City Attorney stated under 1c. that phrase is modified by unless directed by otherwise by an employee or healthcare provider. Vice Mayor Claycomb stated that would allow if they were told to take their mask off. Jennifer Magana City Attorney stated she believes that is a practical solution. Vice Mayor Claycomb stated she will be fine with that. MOTION: Mayor Whipple moved to strike SECTION 3,3i. because he doesn't think members of the Kansas Legislature should have power that supersedes individuals. Mayor Whipple stated SECTION 3, 3i. it says "persons engaged in an activity or event held or managed by the Kansas Legislature" would this exempt members of the Kansas Legislature for an event they are holding the CDC guidelines we are trying to follow and put in place. Jennifer Magana City Attorney stated this is language similar to the Governor's Executive Order and would apply to an activity or event held by the Kansas Legislature. Mayor Whipple stated but would only apply in Wichita, the original Governor's order was probably for Topeka. Council Member Frye asked how this got inserted into this ordinance was this drafted and carried over by staff and just took the Executive Order and made all of these changes to pertain to us. Jennifer Magana City Attorney stated based on the direction received this generally followed that language. Council Member Frye stated direction received by whom. Jennifer Magana City Attorney stated from the Mayor.  Page 25 CITY COUNCIL PROCEEDINGS JULY 3, 2020 Mayor Whipple stated he was the one who requested the draft in Legislation. Council Member Frye stated so all of this language came from you. Mayor Whipple stated no. Council Member Frye stated from the Executive Order and then tweaked for us. Mayor Whipple stated this language comes from the Executive Order and is put into ordinance format which is different. Council Member Blubaugh asked who authored this proposal if it was not you. Mayor Whipple stated he requested the proposal and the Legal Department authored it. Council Member Blubaugh stated so Jennifer Magana and our team inside the City of Wichita drafted this. Mayor Whipple stated yes based on the Governor's order at his request. Council Member Blubaugh asked if the Governor had an influence on this or did her staff have an influence on this. Mayor Whipple sated no. Motion carried 4 to 3 (Nays: Frye, Blubaugh, Clendenin). Council Member Tuttle stated this was something that Council Member Johnson brought up and also has a question about is SECTION 3, 1a. it says inside any indoor public space where distancing of six feet at all times is not possible. Stated can we revise it to say if you are more than six feet away from people, your mask can be removed. Council Member Johnson stated he still doesn't have a solid suggestion on his end. Council Member Frye stated this goes back to his last line of questioning because in SECTION 3, points 1a and b, differ from the Governor's Executive Order so the language was changed and is trying to understand why it was changed because the Governor's order says in 1a. "Inside or in line to enter any indoor public space" but our version we added additional language. Jennifer Magana City Attorney stated she got input from another attorney in the law office today who said to try that language, we are not tied to that language, and it was just a suggestion for drafting. Vice Mayor Claycomb stated SECTION 3, 1a. thinks the exemptions help cover that because it talks specifically in EXEMPTIONS 3f. about restaurants, so if you are in a restaurant that is an exemption to 1a. and if you are an athlete there is an exemption and thinks it helps, it's kind of clunky but you have these exemptions later.  Page 26 CITY COUNCIL PROCEEDINGS JULY 3, 2020 Mayor Whipple stated if we are able to pass this is sure we can create a memo to help clarify the implication of this. Council Member Johnson stated for g. under the Exemptions, "athletes who are engaged in organized sports activity that allows athletes to maintain a six-foot distance from others with only infrequent or incidental moments of closer proximity." Stated reading this thinking about youth football who is probably out practicing right now, you cannot for the most part maintain six feet because it is a contact sport; does that mean if they are out in any way, shape, or form organized practicing right now that they need to wear a mask? Mayor Whipple stated he believes athletics is exempted. Jennifer Magana City Attorney stated this is a challenge with drafting when you get into specifics, if there is alternate language to offer, that might be appropriate, but it would be a challenge to determine this. Mayor Whipple asked if we can use language that excludes exercising. Council Member Johnson stated exercising yes, and doesn't think if youth football is out there that they should be in close contact right now because of the spike. Stated if this is saying that they should not be practicing at this point because they would need to wear a mask, it is not wise to play football with a mask. Mayor Whipple stated when you get feedback we can make a change on Tuesday. Vice Mayor Claycomb stated that makes her wonder, knows this definition of masks came from the Executive Order but in terms of football heard this morning on a news program that they are looking at face shields for some sports instead of having to wear a mask on your face. Stated there is a cost but that might help if there were teams or leagues that decided to use those and doesn't want to exclude them. Jennifer Magana City Attorney asked if this could be accomplished by broadening the definition of secured to the head. Vice Mayor Claycomb stated that means that if they have a helmet with a face shield attached that would be considered secured to the head. Jennifer Magana City Attorney stated she thinks the key is covering of nose and mouth. MOTION: Vice Mayor Claycomb moved to add to the definition of mask or other face covering or looped over the ears, wrapped around the face or secured to the head by some other method. Council Member Blubaugh stated you can line all these kids up and no six foot distancing but they just have to have a wraparound shield on their helmet, is that correct? Mayor Whipple stated the motion will allow that option. Council Member Blubaugh stated but they do not have to, it's voluntary.  Page 27 CITY COUNCIL PROCEEDINGS JULY 3, 2020 Mayor Whipple stated if they were going within six feet of each other they could have this option instead of a mask or any other type of covering. Council Member Blubaugh stated but they are going to have to be within six feet of each other to play any kind of football. Mayor Whipple stated if they were playing games between now and 30 days, this would allow them an option to play games. Council Member Johnson stated his understanding is it would allow for a team to play as long as they have a face shield that is secured to their head or some other method or device. Motion carried 4 to 3 (Nays: Frye, Blubaugh, Clendenin). Council Member Tuttle stated if she is at a workplace where I am in my office alone can I take my mask off? Stated she would not want to have to wear her mask in my office when I am sitting in there alone and doesn't know exactly where that needs to go but would like to have that discussed. Mayor Whipple stated his understanding is that this applies in the workplace if the business is in frequent contact and open to the public. Stated if someone was in their office and it is not open to the public without going through some channels, believes that is covered. Jennifer Magana City Attorney stated she believes there is a provision in the order that talked about that stating that employees in any space visited by customers or the public regardless of anyone from the public is present at the time. Council Member Tuttle stated what if you are not really in an office where the public comes in but other people can come in like our Council office, the general public is not just going to come walking in but your colleague may, can you take your mask off then. Council Member Tuttle stated while this is hard work, the harder work is going to be communicating this in a very effective way to the community so that they understand this and they know what they are going to do and not going to do and we not only need to think about how we communicate with businesses and organizations across the community but we need to do it in a way that is concise and able to understand and also consider multiple languages and blind and visually impaired. Stated the hard work isn't ending when we walk out of this room, the hard work for staff is going to begin and it is going to be important and is worried about but is going to hope for the best. Jennifer Magana City Attorney stated if you look at SECTION 3, 2d. says "employees are in any room or enclosed area where other people (except for individuals who reside together) are present and are unable to maintain a six foot distance except for infrequent or incidental moments of closer proximity." Stated it seems to apply someone has to be there. Vice Mayor Claycomb stated 2a. says that "employees are working in any space visited by customers or members of the public, regardless of whether anyone from the public is present at the time." Stated to her that means if I am working in my Council office, I have to wear a mask. Jennifer Magana City Attorney stated this talks about visited by customers or members of the public.  Page 28 CITY COUNCIL PROCEEDINGS JULY 3, 2020 Mayor Whipple stated this section adds language to clarify what your concern is that you don't have to wear your mask when no one is in there and if you can social distance and would be very similar to the policies we have in place here. Vice Mayor Claycomb stated she is not so concerned about me, I am concerned about people out in businesses and is that true that those negate each other. Jennifer Magana City Attorney stated she is not sure that they do. Vice Mayor Claycomb asked for Dr. Davis for clarification on this. Mayor Whipple stated yes. Dr. Davis stated if you go to page 4 of the ordinance, we have a whole bunch of Where As, if you go to SECTION 2 and drop down to Definitions b. public space is defined as meaning any indoor or outdoor space or area that is open to the public, this does not include private residential property or private offices or work spaces that are not open to customers or public visitors. Stated even though someone can visit your office, thinks that is implied that this is a private space. Council Member Johnson stated he has appreciated this dialogue today with all of his colleagues in making sausage from the bench and knows many of us were a little frustrated by only having three hours to review this document but this has been good discussion overall and thinks we have been making progress even through some of our disagreements. MOTION: Mayor Whipple moved to pass the ordinance as amended along with the declaration of emergency. Motion carried 4 to 3 (Nays: Frye, Blubaugh, Clendenin). ADJOURNMENT MOTION: Mayor Whipple moved to adjourn. Motion carried 7 to 0. The meeting was adjourned at 5:52 p.m. Respectfully submitted, Karen Sublett, MMC City Clerk