Omaha and the County Mask

Delineation vs Arbitrary and Capricious Authority

Update, the measure passed the City Council 5-2! My surprise!

On March 29, the City Council heard a proposal on changing the City ordinance regarding the County health director. To avoid being “fowl” in going colloquial, let me say it was a cluster duck. Councilman Palermo put the proposal out to clarify the ordinance and yet ended up putting an amendment to it which pushed the public testimony into near chaos. Dr. Huse and Douglas County Commissioner Boyle clung to authoritarian, arbitrary and capricious rule, while others demanded to know why just one bureaucrat gets to pontificate edicts.

Dr. Huse, the Douglas County Health director, as well as many County and City officials, are confused by the State, County and City laws. I am still stunned by County and City attorneys who admit Dr. Huse cannot impose a county-wide mask mandate yet still retain authority to do such a mandate in Omaha. Do they know the different powers of a County and a Chartered City under Nebraska law?

If Dr. Huse imposed a County-wide mask mandate, enforcement would clearly be upon the Douglas County Sheriff and citizens could clearly complain to Douglas County Commissioners to challenge the Health Director which could allow for adjustments. People could contact the Douglas County Sheriff or Douglas County Attorney office as well as both are elected officials. This did not happen because Huse does not have state authority to do so.

The Omaha City Charter provisions permit such County-wide impositions if approved by state authorities. However, such provisions in the ordinances only allow the Douglas County Health director to merely to carry out their county-wide responsibilities with the permission of the City Charter, but not to exceed it. If Dr. Huse does not have the authority to do a mask mandate for the County, she certainly does not have it to impose it on Omaha.

However, Dr. Huse made a mask edict specifically and only for Omaha which ultimately split authority. Was the mandate to be imposed by the County Sheriff’s office or by Omaha Police? Were citizens to complain to the Douglas County Commissioners or the City Council? This edict is an example of arbitrary and capricious authority. Good lawyers should see this as a very bad formation of the law and seek reform. Delineation of the authority must be clear and obvious but with such edict, nothing was clear.

The Huse edict also violated civil rights law and the American Disability Act because the people of Omaha are perceived as having a health problem while the rest of the County does not. The principle of equality before the law is violated. The County Sheriff cannot treat one group of people differently under the law (Omaha and not Omaha) so how was it to be enforced without breaking the law? Furthermore, why should Omaha Police obey Dr. Huse when she is not a paid employee of the City and is limited by state statute? Fortunately, the mask edict did not last long enough to trigger other legal objections.

As to the City ordinances, I would simplify the Ordinance to state, “the Douglas County health director has the authority to conduct County-wide responsibilities in Omaha unless specified otherwise by law.” This should fix the most immediate problem of the County Health director issuing such edicts. Of course, some will say it is foul, but it was a cluster duck to begin with.