Masked bandits

City Council assumes powers it does not have

In the Arkansas Ozarks is a place, a shining city on seven hills (more or less), in which erudition and a live-and-let-live characteristic are said to be prized; where “all the women are strong, all the men are good looking and all the children are above average”; and where a certainty of moral righteousness is justification enough to nullify state law.

Welcome to the Fayetteville Autonomous Zone.

Tuesday night, the zone’s Collective — aka the City Council — tried to advance a cause not unlike that of the sovereign citizens, those individuals in our nation who radically believe they have an absolute right to decide which laws to obey and which authorities to ignore.

Council member Matthew Petty’s movement might be more accurately called the “sovereign community.” Apparently tired of the way the governor, Asa Hutchinson, has managed the statewide response to the coronavirus, Petty on Monday informed City Attorney Kit Williams of his plan to “walk on” a proposal to the next evening’s City Council agenda.

His notion was this: With positive covid-19 test numbers rising rapidly in Northwest Arkansas, it was time to force people to wear masks. He proposed to mandate that local businesses refuse service to anyone not wearing a mask and to punish businesses that decline to make the effort. The measure, although it has no direct punishment for individuals, sets up a scenario in which they can be charged with criminal trespass or disorderly conduct if they refuse to don a mask or leave.

It was just Tuesday morning that we, in this space, suggested businesses should take a firm stand with customers, adding “no mask” to the familiar “no shirt, no shoes, no service” standard. And we suggested the governor could set an expectation for businesses to do just that.

So perhaps one might expect kudos and thumbs up for Fayetteville’s decision, and if you believe the ends justify the means, that would be a reasonable thought.

The problem is, the City Council created authority for itself that it does not have, and that kind of action always sets off alarms for anyone who recognizes a government that doesn’t observe the law — that purposely flouts the law — is a dangerous form of government.

Here’s the kind of thing one often hears just before a law-making body’s decides it’s above the law: “To me it’s a simple as this, this is the right thing to do.”

But sometimes people convinced they’re doing the right thing choose a wrong way to go about it.

City Attorney Kit Williams, in clear terms, told the City Council it lacked legal authority to enforce its mandate to wear masks. State law, he said, gives clear authority in a public health crisis to the state’s public health secretary and to the governor. To which Matthew Petty invoked his notion of municipal sovereignty.

“I believe very strongly that the issue of local control, the issue of home rule, deserves a zealous defense,” Petty said.

Regardless of a lack of legal authority, Petty advised the City Council to roll the political dice. Force the state’s hand, he advised. Make the governor prove Fayetteville doesn’t have the authority. If the state really wants to take Fayetteville to court to block a measure to expand mask use in a pandemic, let that be the state’s burden, he suggested.

Let’s take a moment to make one thing clear: Wearing a mask in the covid-19 pandemic is critically important. Everyone should do it. That’s a message we’ve tried to communicate once it became clear the virus’ most efficient path from human to human was via the unavoidable act of breathing. Masks have become even more vital as public health experts determined many people are infectious without having symptoms. They don’t know they’re infected, but they can spread the virus just by breathing.

Let’s also digress for a moment to consider Petty’s “walk on” approach. That means his fellow citizens had no notice of his intent or the details of this very significant ordinance. Much of the time, that’s not much of a concern because ordinances must be read at three consecutive meetings unless the City Council suspends its rules. The public gets a chance to evaluate the proposal and speak out.

Not so here. Petty sprung the measure and pushed its immediate adoption, with an emergency clause. By the next morning, residents and businesses of the Fayetteville Autonomous Zone had a new law dictating everyone wear masks.

If only our society had methods of communication by which residents and businesses could have been informed in advice of these proposed restrictions. Taxpayers actually pay people at City Hall for their capacity to communicate important messages to the public. We know (and Petty does, too) a good newspaper reporter who is devoted to covering city issues. But giving people notice might give them time to react.

What is this, Pope County? Petty cast the action as a crisis measure needed to save lives. Ends justify means, again.

The question after Tuesday’s quick adoption was “What will Gov. Hutchinson do?” Hutchinson declined to be baited into suing a city for a measure that achieves a goal he shares — more people wearing masks. But just as Fayetteville city leaders have expectations that businesses and individuals will follow municipal ordinances, the governor is right to expect all Arkansans to follow state laws. The city attorney made it clear Petty’s measure runs afoul of state law.

When one law is treated as if it has no meaning, it becomes easier to treat all laws that way. We’ve said that when state lawmakers, for example, agree to erect a religious monument that is clearly unconstitutional on public property, but they do it anyway because “it’s the right thing to do.” Some people believe any action is legal as long as you don’t get caught or sued. It’s a lousy and hypocritical approach to governing.

By Thursday, Hutchinson renewed his pandemic emergency order for another 45 days and drew attention to one section giving the secretary of health “sole authority” over quarantine, isolation and restrictions on commerce and travel: “Cities and counties shall not impose any restriction of commerce or travel upon citizens that is more restrictive than a directive or guideline issued by the secretary of health in consultation with the governor,” the order says.

“I think this is important, that we move as a state together,” Hutchinson said, rejecting the notion that there’s benefit to 50 towns establishing 50 ways to handle covid-19 efforts.

His order, Hutchinson advised Arkansans, pre-empts any local decisions — like mandating masks — that are more restrictive than the state’s directives.

What now? This quarrel may play out as a showdown without much legal consequence, unless Fayetteville decides to aggressively prosecute any business owner or individual who doesn’t adhere to the Petty Doctrine. So what is the law in Fayetteville? Our advice: Wear a mask. And if you go into a businesses or otherwise public indoor space in Fayetteville, you can decide for yourself whether you’re wearing a mask as a result of a City Council mandate or as a voluntary effort because you’re trying to watch out for your neighbor.

Either way, you’ll be safer than if you don’t wear a mask at all.