As noted, the most important item we adopted was the one we adopted last, after several rounds of negotiation between House and Senate leaders. It was adopted by a vote of 27-11 in the Kansas Senate and 76-34 in the House; overwhelming margins with almost all Republicans in support.
You can read the legislation by
clicking here
. The Conference Committee Report Brief is particularly helpful, and you can read it by
clicking here
.
As I have addressed in previous newsletters, the governor's emergency powers under current statute are vast, whenever a "state of disaster emergency" exists. While some of the governor's executive orders issued under these powers were good (such as extending tax deadlines) and many were well-intended, some went much too far and/or are quite confusing to follow, such as the complicated phasing plan to reopen the economy. In the opinion of many, this confusion is the product of a system which allows one person almost total control, rather than a collaborative approach in consultation with the legislature.
We have also learned that local public health officials also have enormous power under current statute. For instance, the Johnson County public health director, Dr. Joe LeMaster, extended the stay at home order for Johnson County an additional week (through May 10th), even though a majority of the Board of County Commissioners clearly wanted to open up on May 4th, as scheduled.
HB 2054, the bill we adopted on the last day of the session, attempted to deal with different aspects and challenges of the current situation and I think it did so in a positive way.
I have spoken consistently about the importance of pursuing measured responses
, and I think the bill meets that test. While not perfect - I know some would have liked to go further - I think it was the right approach and that's why I voted Yes.
Over the long haul, I know we will be taking a deeper dive into all of the emergency statutes, and I think that's important.
Here are the key highlights of the bill:
Declaration of State Emergency Process
The first area of concern deals with how the governor issues, re-issues, and extends a state of disaster emergency. As I have covered in previous newsletters,
Governor Kelly has the power to issue a state of disaster emergency, and now has actually done so twice - once on March 12th, which the legislature extended until May 1st, and again on April 30th, which the State Finance Council extended until May 26th - tomorrow.
However, last week, the Attorney General issued an opinion that Governor Kelly did not have the legal authority to issue a second state of disaster emergency on the same topic. In an attempt to address this, HB 2054 does the following:
- HB 2054 makes it very clear the governor cannot issue repeated state of disaster emergencies without approval from the State Finance Council. While the legislation ratifies the current state of disaster emergency until May 31st, it provides that further extensions must receive approval from 6 of the 8 legislative members of the State Finance Council. This is a high bar and very important.
- Additionally, if the state is under a COVID-19 state of disaster emergency, the Governor could not close any businesses for longer than 15 days without approval of 6 of the 8 legislative members of the State Finance Council. Even with that approval, the period of closure could not exceed 30 days.
As noted, these provisions create a system where the governor essentially considers the opinion of legislative leaders, ensuring that your elected representatives are part of the process. This is very important and has been missing throughout this ordeal.
Other Limits on the Governor's Power
Over the past two months, the governor has issued a number of orders that drew controversy or impeded upon constitutional rights. HB 2054 attempts to deal with those items in the following ways:.
- Limits executive orders to the specific powers granted by the statute.
- Requires the governor to call a meeting of the State Finance Council within 24 hours of the issuance of any executive order for the purpose of reviewing the order.
- Specifies that any actions of the Governor under the emergency management statutes must be in conformity with the Kansas Constitution and Bill of Rights and within Kansas statute.
- Adds ammunition to the list of items the Governor does not have the authority to seize under emergency powers. Firearms are already included.
- Requires the Governor to specify the specific provisions granting the authority to issue any future order.
- Replaces the criminal enforcement provision of executive orders with a civil provision. This provision is very important for those business owners who felt a need to proceed forward in opening. This should not be a criminal matter.
Local Control - By Elected Officials
One of the more attractive aspects of HB 2054 is that it provides authority to local elected officials to make the decisions for their county. There are a number of Kansas counties which haven't even had a case of COVID-19, and many others have had cases who have long since recovered. Also, it's simply impossible for bureaucrats sitting in Topeka to know what is best for what is going on in Shawnee.
By the same token, it's very important local decisions be made by elected officials who are accountable to the public, rather than providing local public health officials unchecked authority.
HB 2054 does two important things in this area:
- It allows county commissioners to put in less stringent provisions than those issued by the governor if they find it appropriate. Currently a county can be more, but not less stringent - this would change under this bill.
- It requires county commission approval of orders issued by local county health officers. Johnson County residents, and other counties around state, have been subject to orders by county health officers without any input from elected officials.
Other Provisions
The bill also includes other provisions, including:
Liability Protection
- The bill provides certain liability protection for Kansas health care workers and small business owners, based on the chance that someone could get COVID-19 in their facilities. This is an attempt to stop the lawsuits that could be coming by those looking to take advantage of the system.
Legislative Oversight of Federal Relief Funds
- The Kansas Constitution provides the legislature with the power of the purse, and as such, the legislature should have oversight into how the $1.25 billion in federal relief funds are allocated. This should not be controversial.
Unemployment, Other Issues
- T
he bill also makes temporary provisions to the state unemployment system to help with this current situation. It also temporarily extends several helpful executive orders that Kansans are relying on including those involving telehealth and remote notary services, and extension of tax deadlines. It also ensures that our adult care homes have the necessary personal protective equipment they need. All of this is important to ensure that these positive orders continue even if the state of disaster emergency goes away.
What Happens Next?
The governor has ten days to sign or veto legislation before it becomes law, but she is expected to make a decision by tomorrow, as that is when the current state of disaster emergency expires. If it expires, then all of the orders go away, including those provisions I just mentioned. If she signs the bill, then the state of disaster emergency goes until May 31st and she would have to get State Finance Council approval to go beyond May 31st.
Unfortunately, the governor rushed out to make a very harsh-sounding political statement that was not helpful at all. Legislative leaders repeatedly tried to work with the governor, but she apparently wanted to retain the power all for herself, and that is unfortunate.
Her response stands in contrast to that of Attorney General Derek Schmidt, who issued
this statement
in response to the passing of HB 2054. I encourage you to read it, but here is a key excerpt:
“Many Kansans are eager to get back to work, to provide for their families, to send their children back to school – to return to a sense of normalcy, and to do it safely. Kansans have risen to this COVID-19 challenge and sacrificed for the health and safety of their fellow citizens, and now is the time to move from the initial emergency response to a sustained and cautious recovery effort. Having now preliminarily reviewed the COVID-19 relief bill passed by the Legislature, I consider it a thoughtful and comprehensive approach to fixing many specific problems that need immediate attention.”
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