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Overreach or fix? Utah House passes bill curtailing governor’s declaration powers

Bill would require governor to give legislators 48-hour notice on emergency declarations; other COVID-19 bills approved in virtual special session

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Legislative staff members prepare for the Utah Legislature’s virtual special session from the House chamber at the Capitol in Salt Lake City on Thursday, April 16, 2020.

Steve Griffin, Deseret News

SALT LAKE CITY — In an historic, first virtual special session, the Utah House and Senate each passed bills Thursday responding to the global coronavirus pandemic, including setting limits on the governor’s powers and creating a commission to recommend how the state will begin reopening economically.

Because of the technology involved in holding the session online, the House met first in the morning, followed by the Senate in the afternoon. The special session, also the first called by lawmakers themselves, is limited to 10 days and will continue at least through Friday, likely into next week.

Among the bills lawmakers dealt with Thursday is one requiring the governor to give the Utah Legislature at least 48 hours notice before issuing certain emergency declarations — a bill that even some Republicans decried as a legislative power “overreach.”

The House voted 56-18 to pass HB3005, which would require the governor to provide notice and consult with legislative leaders before issuing a declaration of a state of emergency — or making other executive orders or actions in response to an epidemic or pandemic disease. The bill was held in the Senate for negotiations, with changes expected.

Bill sponsor House Majority Leader Francis Gibson, R-Mapleton, said the bill does include some “carve outs” and allows an exemption if there is an “imminent threat of loss of life,” but otherwise would require the governor to consult with legislative leaders prior to issuing a declaration.


Sen. Evan Vickers, R-Cedar City, pictured at top on a television monitor in the Senate chamber gallery, gives a thumbs-up as Senate President Stuart Adams, R-Layton, leads the Utah Legislature’s virtual special session at the Capitol in Salt Lake City on Thursday, April 16, 2020.

Steve Griffin, Deseret News

“I don’t think it’s too much to ask,” Gibson said, noting that some legislative leaders didn’t receive notice of one of Gov. Gary Herbert’s declarations related to the COVID-19 pandemic until about “15 minutes before” the declaration was issued.

Rep. Merrill Nelson, R-Grantsville, argued against HB3005, worried it would “slow down” the governor’s ability to act swiftly in emergencies and “burden the exercise of his authority.” Nelson called the bill “undue and unnecessary,” and expressed concern the bill would allow the legislative branch to “overstep” and perhaps be a “violation of the separation of powers our Constitution enshrines.”

“I don’t see the need for it,” Nelson said. “It seems like an overreach.”

Gibson said he “totally” disagrees with Nelson, and argued it wasn’t an overstep or overreach of power. Gibson again noted there are exceptions for “imminent loss of life,” but amid the COVID-19 pandemic he saw “nothing that was so crucial to not require 48 hours” of notice. He said it would “lay the groundwork” for “a better working relationship” between the legislative and executive branch in the future.

“This is a unique bill and a unique time,” Gibson said. “Hopefully it’s something that never has to be addressed again.”

Herbert and his staff have concerns with the bill in its current form and are working with legislative leaders to tweak the bill, according to Anna Lenhardt, the governor’s spokeswoman.

“The bill appears to be an attempt on the part of the Legislature to formalize communications and notifications with regards to certain emergency actions on the part of the governor,” Lenhardt said in a prepared statement. “We have concerns with elements of the bill and its impact on executive branch operations. We are working in good faith with legislative leadership to address those now.”

Katie Matheson, spokeswoman for the left-leaning group Alliance for a Better Utah, said Nelson was correct when he called it an overreach.

“A pandemic is no time for a power grab, and an emergency is no time for governing by committee,” Matheson said. “This bill would make it harder for the governor to do (his) job during an emergency, and could make future responses slower and less effective.”

House Speaker Brad Wilson, R-Kaysville, told reporters in an online media availability later Thursday HB3005 wasn’t a power grab, but rather an effort to ensure “the right balance of power” between legislative and executive branches. He said the bill is “a lot less about feeling like the governor did anything that was an overreach” and more about ensuring a good process that includes the Legislature in policy decisions.

Senate President Stuart Adams, R-Layton, told reporters later Thursday changes are likely coming to the bill as lawmakers work with Herbert, his staff and attorneys on “nuances” to ensure the governor can “speak freely” but still give notice when he takes officials actions.

Adams also said it’s not a power grab and doesn’t restrict the governor’s power — but rather is an effort to create a “communication process of how we deal with each other, and I think it’s actually a really good policy.”

Asked why lawmakers wanted to act on that bill now rather than wait until the next general session, Wilson said the COVID-19 pandemic is expected to “be something that’s going to be with us for a while,” so lawmakers wanted to ensure they’re included in future decision-making sooner rather than later.

The COVID-19 Health and Economic Response Act, which passed the Senate 23-6, creates a new Public Health and Economic Emergency Commission appointed by the governor and legislative leaders that would make recommendations starting no later than next Wednesday intended to allow businesses to begin reopening.

The decision would be up to the governor, according to the sponsor of SB3004, Senate Majority Whip Dan Hemmert, R-Orem, but he would be required to either adopt the recommendation by the end of the month “or explain why he isn’t.”

Hemmert said the commission would continue to look at balancing economic needs with public health and safety.

The bill, which still needs House approval, was criticized by Sen. Gene Davis, D-Salt Lake City, for seeming to “put the fiscal health of the state ahead” of local health concerns. He said, “That really concerns me that we can take and worry more about the dollars in this state than we can worry about members of certain communities.”

Senate Minority Whip Luz Escamilla, D-Salt Lake City, said she wanted to see those hardest-hit by the pandemic, including people of color, represented on the commission, “bringing underserved communities to this conversation.”

Hemmert said the focus is still on the “overall well-being” of Utahns, but that the state is reaching the point of easing back on restrictions put in place to stop the spread of the virus to give more weight to economic health.

Adams said leaders are racing to appoint commission members, noting “we have some very smart people in the state” with the skill to use data to make that recommendation.

“We hope this commission actually uses the best talent we have,” he said. “They’ve got a very short time frame to come up with (a plan).”

Wilson kicked off the special session with a call to lawmakers to fulfill their legislative duties during an unprecedented and challenging time.

“We are here to fulfill our constitutional role as a Legislature by calling ourselves into a special session under very challenging circumstances in very unprecedented ways,” the speaker said.

He noted when the Legislature’s general session closed just five weeks ago, “we left with a balanced budget, and a lot has changed since then.” He said the governor and the executive branch has “worked tirelessly” for Utahns during the pandemic.


House Speaker Brad Wilson, R-Kaysville, left, leads the Pledge of Allegiance during the Utah Legislature’s virtual special session from the House chamber at the Capitol in Salt Lake City on Thursday, April 16, 2020.

Steve Griffin, Deseret News

“Now it’s our turn,” he said, “as a legislative branch to pass policy and make certain that the state of Utah remains fiscally sound and is prepared to come out on the other side of this pandemic stronger and more united than we’ve ever been.”

Wilson said lawmakers seek to work on a plan to begin reopening the economy, with a goal to start that process by the beginning of May.

Wilson told reporters that plan likely won’t include opening every business at once — but rather the process will be “methodical” and based on data. He pointed to Hemmert’s bill to create the Public Health and Economic Emergency Commission, aiming to begin efforts to ease Utah’s economy back to normalcy.

“This is something that will be with us, based on what we’re hearing and we believe, for quite a while,” Wilson said. “So we’re going to have to figure out a way to manage the new normal of COVID-19 as part of the backdrop of our state, of our country, of our health care system. And we’re going to have to be very careful as we work over the next year or longer to make sure we put the right measures in place to protect the health and welfare of our citizens but also to make sure we play attention to the economic welfare of our people.”

Wilson said COVID-19 is likely to have a long-lasting impact — and fiscal analysts are already estimating loss of tax revenue of between $500 million and $1 billion that will hit state and local government budgets.

“The economic implications of COVID-19 are significant,” Wilson said.

Adams opened the Senate’s afternoon session later than expected after the hosting system being used by lawmakers crashed nationwide. Adams, too, spoke of the difficult times facing the state because of the deadly virus.

“These are times I don’t think I’ve ever experienced before in my lifetime, as we face a pandemic and as we see the economic challenges it presents,” Adams said.

To respond, the Utah House and Senate approved a slate of bills related to COVID-19, seeking to tackle a range of issues from the budget to the upcoming June primary.

  • House members quickly passed two bills intended to get the state budget back on track. Both HB3001, which raises the state’s bonding limit, and HB3002, which makes changes to the budgeting process, were also approved by the Senate and now go to the governor for his action.
  • The same was true of HB3003, which adjusts state income tax filing deadlines to match those of the federal government, which moves the traditional April 15 due date for paying taxes to July.
  • The Senate easily passed SB3001, which shifts money between the current budget year that ends June 30 and the upcoming budget year to account for income tax revenues coming in later than usual. Decisions on what will be cut from the next budget year’s $20 billion spending plan will made in a future special session.
  • The House and Senate also both passed HB3006, a bill to make Utah’s upcoming primary election on June 30 entirely by mail, except to accommodate disabled voters. The bill does allow for “mobile voting” from a vehicle in counties that choose to use the method.

But there would be no polling places for in-person voting or same-day voter registration. Ballots would be able to be postmarked on Election Day, rather than the day before, and election workers would have longer to count the ballots to ensure they can be safely handled.

House Minority Leader Brian King, D-Salt Lake City, raised concerns about ensuring voters would not have to pay postage for their ballots. The bill’s sponsor, Rep. Jefferson Moss, R-Saratoga Springs, said federal funding is being “aggressively” pursued and he’s confident there will be money to cover postage costs.

The changes are only intended for the primary election and the bill would automatically be repealed Aug. 1. There initially were discussions about the possibility of moving the partisan election to August, but that idea was dropped amid opposition from legislative leaders.

Salt Lake County Clerk Sherrie Swensen, who had said it was critical to move the primary to August to protect election workers, said Thursday she believes the bill is workable and that additional precautions will be taken.

“We’re going to try to do everything we can. We’ve tried ordering shields, so our staff will be wearing shields over masks,” Swensen said, and taking other steps as preparations get underway in mid-May for the June primary “to make sure we stay safe and the public stays safe.”

  • The Senate voted to extend liability protections to medical providers caring for COVID-19 patients, including those providers who choose to prescribe off-label or experimental drugs such as hydroxychloroquine for treatment by passing SB3002.
  • Legislation to provider workers’ compensation to first responders who contract COVID-19 while on the job soared through both the House and Senate. HB3007, sponsored by Gibson and Sen. Kirk Cullimore, R-Draper, would provide workers compensation to traditional first responders as well as physician assistants, nurse practitioners and others who might become ill responding to the virus.

Gibson noted some concern about an increased premium but countered saying these individuals are providing care that needs to be given under these unique circumstances. He invited those critics to don masks and gloves and respond to the needs themselves.

“If you are that concerned about it, maybe you might be willing to go out and provide this care,” he said.

Lawmakers living in rural communities also voiced their support for the legislation as many of their first responders work on a volunteer basis.

  • A resolution, HCR301, honoring health care workers, law enforcement officers, emergency responders and other essential employees working to save lives and keep the state afloat among COVID-19, also received unanimous approval in the House and Senate.

House sponsor Rep. Melissa Garff Ballard, R-North Salt Lake, said the Legislature and governor are “profoundly grateful for Utahns who have chosen to stay home and stay safe” and for public servants who “have shown to be heroes and great courage on the front lines.”

Ballard lost her father Bob Garff, former Utah House speaker and chairman of the Salt Lake Organizing Committee for the 2002 Winter Olympics, from complications associated with COVID-19 on March 29.

“The world has been ravaged by the COVID-19 virus and has caused significant disruption to our Utah communities,” she said. “I’ve been personally affected, having lost my father recently to this lonely, isolating and mean virus.”

Other lawmakers expressed their condolences for the loss of Garff, who served as speaker of the House from 1985-87.

  • The Senate swiftly passed SB3003, legislation that would waive the one-week waiting period to receive unemployment benefits when a state of emergency has been declared, without dissent.

The bill, which has been sent to the House for consideration, would authorize the Department of Workforce Services to waive the waiting period for an unemployed individual when a state of emergency is declared by the U.S. president, the governor, or when the federal government agrees to pay the benefit.

  • Senators also unanimously passed a bill addressing some of the challenges schools are facing from COVID-19. SB3005 would waive several statutory requirements impacted by school closures, including assessment and accountability measures that the school board cannot complete, teacher and school district employee evaluation requirements, and gives schools the ability to get a waiver to excuse any student unable to complete the required civics test for high school graduation.

For the all-virtual special session, many lawmakers commented and voted on bills while sitting in their own homes and speaking through webcams. Aside from the Senate’s delayed start, the occasional glitch, fuzzy video feeds or spotty audio, the virtual special session was largely smooth sailing as legislators cruised through bills.

“I think it went remarkably well,” said King as the House readied to adjourn.

At the beginning of the session, Rep. Norm Thurston, R-Provo, tried to protest a vote to suspend rules to facilitate Thursday’s session, but Wilson said he did not notice him to allow him to speak before the vote already happened.

Thurston said he hopes in future special sessions called by the Legislature, they will hold committee hearings on the bills to allow for more public comment. Wilson said he agrees with Thurston, noting Thursday’s special session had big technological challenges to overcome, and that’s “something we’ll be working on for future special sessions.”

Wilson told reporters the virtual session went “really, really well.” But he said it felt “lonely” in the House chamber and he preferred a process that included committee hearings.

“I don’t think this is the best way to do policymaking,” he said. “I think we’re better off to be here (together), but in times of crisis you do what you have to do.”