AG: Pima County’s mask mandate safe, for now, from order

Gov. Doug Ducey’s executive order in late March lifting most of Arizona’s remaining pandemic restrictions, including local mask mandates, likely cannot stop Pima County from keeping or enforcing its mask requirements, according to an informal opinion issued Tuesday by the Arizona Attorney General’s Office. But mostly on a technicality.

The Arizona Attorney General’s Office said a state statute the governor cited in his executive order doesn’t give him the authority to preempt counties from enacting stricter protocols than the state.

However, the governor could call on the Arizona Department of Health Services to set statewide policies on masks to prevent the county from maintaining its rules, according to the opinion.

Ducey has chosen not to pursue a statewide mask policy throughout the COVID-19 pandemic, instead, issuing an executive order last summer to allow local communities to make that call. He rescinded that authority, along with the state’s pandemic restrictions on businesses, on March 25.

The opinion came a week after three Republican state lawmakers asked the attorney general to weigh in on whether Pima County’s decision to keep its mask rules conflicted with Ducey’s March order. Ducey’s order stripped cities and counties from enforcing mask mandates that had been in place since last summer to curb the spread of COVID-19, except for in government buildings and on public transportation.

In the wake of Ducey’s order, Flagstaff and Tucson swiftly announced that they would keep their local mask rules in place. Pima County followed on March 30 and Phoenix Mayor Kate Gallego announced Tuesday that the city’s mask mandate also would remain despite Ducey’s order.

A Pima County spokesperson told The Arizona Republic that the Attorney General’s opinion was in line with the county’s.

“We look upon the AG’s opinion favorably as it agrees, for the most part, with the opinion of our own attorney,” County spokesperson Mark Evans said.

Ducey spokesperson CJ Karamargin said the Governor’s Office was weighing its options. “We are reviewing the Attorney General’s informal opinion and what impact it may have or authority it may assert. But given local governments inability and unwillingness to enforce mask ordinances when they were most necessary we believe it is largely inconsequential,” he said.

The Governor’s Office did not immediately respond to a request for comment.

Sens. Michelle Ugenti-Rita, R-Scottsdale, and Vince Leach, R-Saddlebrooke, asked the AG on March 30 to determine whether Pima County’s mask mandate conflicted with Ducey’s executive order. In a separate request, Leach’s seatmate, Rep. Bret Roberts, R-Maricopa, also asked the agency to weigh in.

None of the lawmakers live in Pima County through Legislative District 11, which Leach and Roberts represent, spans the northern part of the county.

Brunn Roysden, the solicitor general who wrote the opinion for the AG’s Office, said Ducey’s order relies on the wrong state statute to preempt cities and counties from enacting mask rules. Ducey’s order states cities and counties can’t issue pandemic protocols that conflict or are stricter than the state’s rules under Title 26 related to emergency management.

That law doesn’t appear to give Ducey the power to preempt county regulations that have been issued under Title 36 related to public health and safety, like Pima’s mask regulation, Roysden wrote. Roysden noted Ducey could ask the Arizona Department of Health Services to do so.

The state health department has broad authority under Title 36 to set and enforce statewide health measures and coordinate public health responses during a state of emergency, which Arizona has been under since March 2020.

In choosing to keep its requirement that people wear masks in public places, Dr. Francisco Garcia, Pima County’s chief medical officer, said the state had made gains in terms of the number of people being vaccinated, but the pandemic was far from over.

“Our goal here isn’t to fight with the governor or fight with the state. Our goal is to try and do the best thing we can for Pima County,” Garcia said at a news conference last week.

He said the governor overstepped by stripping local authority and that the state Legislature, not the governor, granted counties authority to make local decisions.

County officials have argued that state statute gives the Board of Supervisors and County Health Department broad authority to enact and enforce measures needed to preserve public health, particularly during an emergency.

However, the courts struck down a similar argument when a group of Tucson bar owners challenged the county’s 10 p.m. curfew. A Pima County Superior Court judge ruled against the county, finding that the curfew violated executive orders issued by Ducey that prohibited local governments from enacting rules stricter than the state’s.

Evans, the Pima County spokesperson, told The Republic on Tuesday that the county’s mask mandate remains in effect and County Health Department officials continue to investigate complaints with an emphasis on education first.

Health inspectors can enforce mask rules at businesses regulated by the Health Department, mostly those preparing or serving food, but law enforcement also can take action at other establishments, under the county’s mandate. Evans said the county hasn’t received any indication from the state Department of Health Services that it plans to set any statewide policies regarding mask use. He noted that state health officials still encourage residents to wear masks to prevent the spread of COVID-19 on the department’s website.

An ADHS spokesperson did not immediately respond to a request for comment.