SALT LAKE CITY — On the final day of the Utah Legislature’s first virtual special session Thursday, lawmakers approved a bill requiring the governor to give legislative leaders notice when issuing certain emergency orders — after narrowing the requirement to 24 hours instead of 48.
The bill, HB3005, was changed in the Senate after negotiations with Gov. Gary Herbert and passed 27-2, with two Democrats opposed. But before the House concurred 66-9, a number of representatives expressed concern about getting less notice from the governor while others worried about separation of powers.
The bill’s sponsor, House Majority Leader Francis Gibson, R-Mapleton, advised them the measure faced a veto unless the changes were accepted, later saying “for those of us who are wavering between 24 and 48 hours, there’s no one that has been more frustrated than myself on that issue.”
Gibson said the governor already weighs in on legislative matters “every time he feels he needs to,” summoning lawmakers to his office in some cases, so he should also have to alert them in advance about “what’s going on” before issuing emergency orders in some cases.
The majority leader disputed what he called a “narrative” that the bill is an attempt to take power away from the governor.
Rep. Merrill Nelson, R-Grantsville, who had previously voted against the bill, said he “was not being disloyal to the Legislature but my primary concern was to our state constitution, which separates the three branches of government.”
Nelson said he believed the governor should not have to consult with the Legislature to exercise his powers, but ended up voting to accept the changes made by the Senate.
Rep. Patrice Arent, D-Millcreek, also raised concerns about separation of powers and was one of nine Democrats who voted against the bill.
Rep. Paul Ray, R-Clearfield, said he doesn’t like the changes made to the bill, but it is still “better than nothing.”
Ray said the bill still at least “puts some kind of limitation. I think what we’ve seen is a lot of these executive orders have been driven by media. It’s almost like they’re playing whack-a-mole within the executive office without really sitting down to consider long-term effects.”
The House has passed a previous version of the bill 56-18 last week to require the governor to provide 48-hour 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’s Senate sponsor, Sen. Evan Vickers, R-Cedar City, said the new version of the bill “narrows” requirements on the governor before issuing emergency orders or declarations, only under an epidemic or pandemic. It would also create a “legislative pandemic response team” of House and Senate leaders.
The bill allows the Legislature to overturn an order or regulation issued by the governor through passage of a joint resolution.
The new version of the bill still includes exemptions allowing the governor to issue orders without notifying the Legislature if there is an “imminent threat of loss of life,” according to the bill.
Senate Minority Whip Luz Escamilla supported the bill, saying it brings more “balance” to the relationship between the executive and legislative branches — though she noted many Utahns likely don’t care about balance of powers between the two branches amid today’s COVID-19 pandemic.
“The bill has now been worked and it’s way better,” Escamilla, D-Salt Lake City, said. “From the beginning I think if we can have communication between the legislative branch and executive branch in an emergency like the one we’re facing, it’s critical.”
Lawmakers had several other pandemic-related bills to wrap up.
- Lawmakers approved SB3007, which would protect businesses from claims related to COVID-19. The bill’s Senate sponsor, Sen. Kirk Cullimore, R-Draper, said he’s spoken with a number of businesses fearing that they could be sued if someone contracts coronavirus in their establishment.
“A lot of businesses after being shut down are concerned about when we reconstitute the economy and start opening up again, has that duty of care changed, have the standards changed and what that liability might be,” he said.
While prevailing on a negligence claim for contracting COVID-19 may be difficult, he said, even facing a suit could hurt a business.
The legislation would provide businesses with immunity from negligence claims, but would not protect against reckless or willful conduct or intentional harm, he said.
Debate was lengthy in both the House and Senate. Several lawmakers expressed concerns that the public should be more involved in setting such a law. Some are worried it could create a “slippery slope” with businesses demanding immunity for other issues.
“I’m wondering what kind of precedent we are going to set,” said Sen. Todd Weiler, R-Woods Cross. “Once we start doing this, I’m wondering if every time there is something new that we are going to be pressured by constituents or industries saying, ‘Well now give us protection for this.’”
Senate Assistant Minority Whip Jani Iwamoto, D-Holladay, proposed an amendment that would require businesses to post a sign disclosing that patrons are “waiving critical rights,” which was shot down. Cullimore said the amendment would undermine the intent of the bill, explaining the legislation is to prevent frivolous lawsuits against businesses over COVID-19.
The bill passed 22-6 in the Senate and 54-21 in the House.
- Lawmakers also unanimously passed a revised SB3006, which provides COVID-19 federal relief funds for agricultural business loans, residential housing assistance and commercial rental assistance. Lawmakers approved the bill last week but brought it back Thursday to account for additional guidance from the federal government.
Senate sponsor Sen. Lincoln Fillmore, R-South Jordan, said the changes provide coordination between the various funding programs the federal government has made available, outlines reporting guidelines and specifies some grant amounts.
- In a second special session called by the governor that began and ended Thursday afternoon, the House and Senate approved HB4001, appropriating some $255 million of more than a billion dollars in federal stimulus funds coming into the state to deal with the impact of the coronavirus pandemic, including unemployment, Medicaid and personal protective gear.
Lawmakers are limited in how much they can spend when they call themselves into special session, necessitating the second session of the day. The House debated spending $6 million for treatment drugs because of the state’s effort to stockpile hydroxychloroquine, an anti-malarial drug with an unproven efficacy against the deadly virus.
The bigger issue of how much to cut the $20 billion state budget passed earlier this year won’t be taken up until the next special session, likely in May. Before the new budget year begins July 1, Senate Budget Chairman Jerry Stevenson, R-Layton, said lawmakers will consider three tiers of cuts — 2%, 5% and an “extreme” 10%.
“We’re trying to be very pragmatic as we look at this,” Stevenson told reporters, including asking the governor that only essential positions in state government be filled. He said Utahns may have to “get used to a lower level of services” even though “we’re a long way from panic and we’re a long way from bankruptcy.”
Senate President Stuart Adams, R-Layton, said the state is “as prepared as we could be” to deal with a budget shortfall, having built up reserves that include money set aside for new buildings that can now be used elsewhere. “This may be a little more significant than a rainy day, but we think we’ll get through it.”
Lawmakers also passed two bills vetoed during the general session that were brought back with changes.
- HB4002, sponsored by Rep. Joel Ferry, R-Brigham City, would lift the exemption for state sales tax on locomotive fuel, funneling the revenue to railroad crossing projects — about $3.6 million each year.
Ferry said there are “significant public safety concerns” at some crossings and that the fund generated by the sales tax would help address those issues by constructing overpasses and other safety measures. The bill passed 63-10 in the House and 23-6 in the Senate.
- HB4003, which would provide scholarships to students with special needs by establishing a refundable tax credit for individuals and corporations to fund the Special Needs Opportunity Scholarship program for families that want to seek services at private schools, passed the House 40-34 and narrowly scraped by in the Senate 15-14.
House sponsor Rep. Mike Schultz, R-Hooper, described the legislation “as a win-win” because it provides students and their families a choice to receive a scholarship to pursue an education at a private school or other special services.
Schultz said the revised bill implements a means test with the intent of helping lower- and middle-income families.
In an April 1 letter explaining his veto, Herbert said the initial legislation would have created a tax credit, which under normal circumstances may have been appropriate, however, with the “unprecedented uncertainties” of the economy it was not the right time. He also expressed concerns that the Special Needs Opportunity Scholarship program may be unnecessary as a similar tuition assistance program already exists — the Carson Smith Special Needs Scholarship Program.
Schultz told the Deseret News that a compromise was reached with the governor’s office.
Some lawmakers echoed these concerns during debate, saying the intent of the bill is appreciated, but questioned whether the decision should be rushed.
Schultz said another change made to the bill is that a study will be done on the feasibility of combining the program with the Carson Smith Scholarship. The goal, he said, is to take the best of both parts and roll them together.
Rep. Marie Poulson, D-Cottonwood Heights, said she is concerned that the scholarship would draw from the education fund.
“No one has any idea what the pandemic and economic fallout of this pandemic is going to have on public education funding, and I don’t think it’s responsible for us to make this kind of financial promise now without having a handle on our education funding,” she said.
