As Alaska Gov. Dunleavy continues to support local mask mandates, some boroughs first want proof they’re legal

During a recent Zoom call with state Republican party officials, Gov. Mike Dunleavy said Alaskans need to take responsibility for their own health while pledging not to issue a statewide mask mandate to slow the spread of COVID-19.

Then Dunleavy reaffirmed his publicly stated position that mask decisions should come only from local governments.

“He cannot and will not overstep local control,” according to a summary of the Nov. 17 call reviewed this week by the governor’s office.

Ed Sniffen, Alaska’s acting attorney general, last month said municipalities, including the state’s second-class boroughs, can mandate face masks using their disaster powers.

But seven of Alaska’s second-class boroughs — some with surging numbers of COVID-19 cases — say they don’t have the police powers or general health powers to do that. Second-class boroughs need voter approval to exercise many powers.

The day after that Zoom call with Dunleavy, attorneys representing the boroughs sent Sniffen a letter citing specific laws prohibiting second-class boroughs from enacting mask mandates in response to a pandemic. They asked for the legal analysis behind the state’s contention that they can require masks.

The letter was signed by attorneys representing the Matanuska-Susitna, Kenai Peninsula, Fairbanks North Star, Ketchikan Gateway, Kodiak Island, Bristol Bay and Aleutians East boroughs.

Sniffen sent a reply via email the same day, Nov. 18. He said the Department of Law provided initial legal analysis to the Alaska Municipal League on July 24 and the group released guidance that disagreed with some of the state’s analysis.

“We will take a look at the additional information in your letter, and provide a response,” Sniffen wrote.

As of Tuesday, there had been no additional response from Dunleavy’s top legal official, numerous borough attorneys said.

Mandating masks, especially in second-class boroughs, is “clearly” the governor’s responsibility, said Fairbanks North Star Borough Mayor Bryce Ward, who recalled feeling shocked last month when Sniffen told municipal leaders they had an authority that they were “pretty darn sure” they didn’t.

At this point, Ward said, it doesn’t seem like the Dunleavy administration is going to change its position and clarify the legal questions.

[On masks, Alaska Gov. Dunleavy tells local leaders to use power they say they don’t have]

During last month’s Zoom call, Dunleavy was described as saying it’s not his job to keep Alaskans healthy, according to the call summary.

But, he continued, it is his responsibility to make sure “our systems do not collapse” -- meaning keeping health care or law enforcement personnel healthy enough to do their jobs.

“His point was that Alaskans need to take personal responsibility for their health by frequent handwashing, social distancing, wearing a face mask and other steps to slow or stop the spread of the virus,” the governor’s spokesman, Jeff Turner, said in an email Monday. “This has been his advice and policy since the pandemic began.”

There are almost 40 communities around the state with mask mandates, according to an informal survey last week by the Alaska Municipal League. Seward just passed a new one last week. Several governments decided against them, including the cities of Ketchikan and Sitka over the summer.

Palmer’s city council on Friday night is expected to decide whether to enact a mandate after hearing hundreds of public comments, the majority in opposition. Approval requires a 6-1 vote.

The boroughs’ attorneys say they wrote the letter to stave off potentially costly lawsuits down the road from citizens opposed to mask mandates.

“We just don’t have the authority,” said Colette Thompson, borough attorney for the Kenai Peninsula Borough. “Our concern is we’d be inviting litigation if we were to attempt that.”

Each of the second-class boroughs brings “slightly different scenarios” included some with limited health powers, said Scott Brandt-Erichsen, a private attorney who represents Kodiak Island Borough.

“If the AG is making a blanket statement, you’ve got to actually look at what authority each one has: Why are you doing it? Can you do it?” Brandt-Erichsen said. “In some instances, there may be defensible reasons. In others, there may not.”

Officials with the Mat-Su and Fairbanks North Star boroughs say they never considered proposing a mandate, based on legal opinions from their attorneys starting in March when the pandemic arrived.

Second-class boroughs also don’t have the staff to roll out mask mandates, officials say. And given the more conservative tendencies of those boroughs, as well as the Kenai Peninsula, any mandates would probably face an uphill battle.

More broadly, however, the dispute between the state and boroughs illustrates the need to clarify the powers granted to local governments by Alaska’s constitution, said Ward, the Fairbanks North Star Borough mayor.

“Especially as we see the state push more responsibility onto the local level without the necessary funding or authority to do so,” he said.