The Ames City Council voted to approve an ordinance that would mandate face coverings in the city of Ames but will have no penalty enforcing the mandate during the City Council meeting Tuesday night. According to attorney Mark Lambert, nonpenalized mandates are rare.

The original draft of the ordinance that failed would have enforced any person 3 years and older to wear a mask anywhere the public is invited and social distancing is not accessible and accommodated for anyone with medical conditions unable to wear masks.

A violation would result in a $50 fine, but in attempts to “obtain compliances” with the ordinance, “education and encouragement” would be utilized first, making a citation a last resort, according to the draft.

The motion that passed does not include a fee of any kind and will specify the lack of penalization as well. A concern of those opposing the original ordinance was whether the Council had the authority to enforce a mask mandate.

Earlier in the summer, the Council wrote a letter to Gov. Kim Reynolds asking for permission to mandate masks in the city of Ames, the Council has yet to receive a response. The state attorney general interpreted in the Emergency Management Section of Iowa Code and from the Public Health Section of Iowa Code that the governor has all of the authority and is then able to delegate that authority to cities, according to Lambert. Reynolds has yet to do so.

The other side of the debate is the argument of home rule authority, therefore granting the city with the ability to pass such ordinance. Opposing the draft, 2nd Ward Rep. Tim Gartin said he supports wearing masks but concerns lie with the issue of authority.

“At the end of the day this is very murky waters at best, but when you couple this with Governor Reynolds’ clear statement on this I think that this is not a good thing that we should do,” Gartin said. “I think the fact that we took an oath to uphold the Constitution, this is very, very risky and I am opposed to this.”

Rep. Bronwyn Beatty-Hansen voted in favor of the original motion and said she would be willing to have the courts establish who truly holds the authority in this particular situation.

“I think that for the public health and safety, this is a time to make a stand,” Beatty-Hansen said. “[…] this is untried in the sense that we have the attorney general’s informal opinion and we know what the governor believes, but what she believes is not necessarily what the court of law would necessarily say the law is, we don’t know that, and in this case, I am willing to go to that to have the courts establish that.”

There have been cities in Iowa to mandate masks with penalties, but there has yet to be any state challenges against them. Removing the penalty from the draft would also remove the likelihood of a state challenge.

Rep. Amber Corrieri said this law would have had low enforcement priority due to a citation being a last resort as stated in the draft, but that a penalty is an important mechanism to have just in case things get out of hand.

“I am generally not supportive of an ordinance that doesn’t have a mechanism for enforcement, I think it essentially renders an ordinance completely useless if you don’t have an enforcement tool,” Corrieri said.

The second motion that excluded the penalty passed 4-2, 4th Ward Rep. Rachel Junck voted in favor of both motions but said she was disappointed with how the discussion resulted.

“Just because what we did tonight is legal, doesn’t mean it is ethical,” Junck said. “I think it is kind of frustrating to end up essentially where we were before with an unenforceable expectation of mask wearing. I just wanted to clarify, I voted yes because I think what was proposed is better than nothing, but in my opinion, I think it falls short of what our community and our residents need in the face of this public health crisis and I really just wanted to echo what someone said during the public forum, people who do not wear masks impede my freedom to stay alive. I think it is really important that we wear masks with this expectations even without a mandate to protect others and not just ourselves.”