No mask mandate for Sioux Falls, mayor breaks council tie: 'My official vote on this is a 'no''

Trevor J. Mitchell
Sioux Falls Argus Leader
Sioux Falls City Council Tuesday, Nov. 10, 2020.

After nearly two hours of public comment and another hour of discussion, the Sioux Falls City Council voted down a mask mandate ordinance on Tuesday evening — but only after Mayor Paul TenHaken stepped in to break a 4-4 tie.

The ordinance, which would have required face coverings to be worn by people in most "indoor public places where 6-foot social distancing cannot be achieved or maintained," had been contentious since Councilor Curt Soehl proposed it in late October. 

Soehl, who said the city was in "a crisis for public safety" as he implored his fellow councilors to support the bill, reiterated his prior comments that this bill was intended to keep businesses open, keep children in school and avoid overloading local hospitals. Statewide, more than 100 people have died of COVID-19 since Nov. 1.

"Now the state of South Dakota will identify those people by the county that they originate in," Soehl said. "But they're dying in Sioux Falls. They're dying in our hospitals here."

Soehl also proposed an amendment based on feedback he'd received regarding the ordinance that would have carved out more exemptions, including families and participants in team sports.

Three councilors joined him in voting for the ordinance, all of whom had shown support for it prior.

Mayor Paul TenHaken listens to public input on the first reading of a possible mask mandate at a city council meeting on Tuesday, November 3, at Carnegie Town Hall in Sioux Falls.

What did councilors have to say?

Co-sponsor Rick Kiley addressed several topics that came up repeatedly during public comment, noting that the city manager of Brookings told him they'd had no problems enforcing their mask mandate, and saying he'd envisioned the ordinance being enforced "with a smile and a 'here's a mask.'"

And he seemed to reference TenHaken's comments from a press conference last week when he said Sioux Falls should be setting the bar for the region.

"We can only control what happens in the boundaries of our city," Kiley said. "If we want others to follow, then we need to lead by example."

Councilor Janet Brekke's comments focused largely around her frustrations that the mask mandate was being treated much more seriously than other ordinances, like mowing a lawn or shoveling snow from a sidewalk.

"Generally speaking, the city uses [ordinances] to get a change in behavior, and it uses it in a way that we get something done collectively as a group," Brekke said. "I don't want to look back and say I didn't do enough, and I could have saved more lives. And I believe this is an issue that can save lives."

Councilor Pat Starr, echoing comments he made last week, arguing that while he supported the mask mandate, it was "way too late," and said he agreed with some of the public detractors that the mandate would be ineffective, as it should have happened in August.

"There is more we have to do," Starr said. "We can't allow this to spike in our community without taking further action."

The four councilors who voted in opposition all expressed similar concerns around enforcement, and several pushed back on the idea that there was only one right way to address the pandemic.

Councilor Marshall Selberg had been the least committal on how he'd vote on the ordinance since it was proposed, and said at the meeting that the enforcement part of the bill was keeping him from supporting it.

"I fully support where you're going with it and what we're trying to do is lead, show the people what we want them to do," said Selberg, adding he would have preferred it been presented as a resolution, not an ordinance.

Councilor Christine Erickson said she did not buy into the idea that "leadership is supporting it and only supporting it," and said she believed many people in Sioux Falls were already wearing masks.

Erickson also said she believes that many of the mental health issues that have accompanied the pandemic's spread over the last year "just as dangerous, with mental health, as this virus, in my opinion."

Councilor Alex Jensen's remarks were fairly brief, noting that he would not support the measure but saying he appreciated the discussion, adding "I think we're all for masks in South Dakota."

Councilor Greg Neitzert — the only member of the council who was not masked or appearing at the meeting remotely — had the strongest dissent against the ordinance, as he did on Nov. 3 when he took the unusual measure of voting against it moving to a second reading.

Neitzert said the mandate was being pushed based on the "hope that it will work, without evidence, I don't think necessarily, that proves it," as well as fear.

He said that, whether there was a fine or not, "I don't want to live in a city where people are calling the police because somebody's not wearing a mask."

Neitzert also focused on the personal freedoms aspect of the mandate, saying that as a council "We have to balance a public good versus individual liberty."

With a tie vote clearly upcoming, Soehl looked toward the next steps.

"If this passes or fails, either way, I would respectfully ask my colleagues to contact me tomorrow, and let's plan what's next," he said. "If it passes, what's next? If it fails, what's next? Let's keep working on this thing, cause it's not gonna go away."

Soehl then said there had "been a lot of talk about fear on this," which led into an emotional speech as he concluded his remarks.

"I'll tell you what, I'm scared," he said. "I'm ... scared. Two daughters that are nurses. Two son-in-laws that work in health care. I have eight grandchildren. And I'm scared for them. And I'm scared that when I go to bed tonight — if I do tonight — when I go, that I haven't done enough. You guys can do whatever your conscience leads you to do, and I respect that. I'm worried that I haven't done enough to protect my family and the citizens that I said that I would protect."

TenHaken breaks the tie

As the tiebreaking vote fell to TenHaken, he was clear that he wouldn't be diverging from what he'd been saying for weeks, if not months — he wouldn't support a mandate.

He opened by saying he had supported mask wearing, had mandated it across 1,300 city employees and had worked to get mayors across the state to sign onto a joint letter encouraging masking.

But there are challenges, TenHaken said, citing Fargo's mask mandate, which he said has "made little to no impact."

"The unenforceable nature of it is a challenge," TenHaken said, saying it had been a hard year already for police. "I'm not putting anything else on our cops. I'm going to defend those cops, and I'm not putting anything else on their plate."

TenHaken also said that the "small uptick in compliance" they would see from a mandate "are not worth the community division that this will create," and that a mask mandate was "not an effective way to control a pandemic that doesn't know where the Sioux Falls city limits are."

TenHaken said he could continue to emphasize the importance of masking and other mitigation measures against the virus, but said he wouldn't be mandating them.

"I know how emotional this topic is," he said, saying that "it sucks to be in this position."

And then, with little fanfare, he broke the tie, 

"So my official vote on this is a no, and that item fails 5-4. Next item."