Legislature(2021 - 2022)ADAMS 519
03/18/2021 01:30 PM House FINANCE
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| Audio | Topic |
|---|---|
| Start | |
| HB69 || HB71 | |
| Presentation: Reverse Sweep - Office of Budget and Management | |
| HB128 | |
| HB76 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 69 | TELECONFERENCED | |
| += | HB 71 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| *+ | HB 128 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 76 | TELECONFERENCED | |
HOUSE BILL NO. 76
"An Act extending the January 15, 2021, governor's
declaration of a public health disaster emergency in
response to the novel coronavirus disease (COVID-19)
pandemic; providing for a financing plan; making
temporary changes to state law in response to the
COVID-19 outbreak in the following areas: occupational
and professional licensing, practice, and billing;
telehealth; fingerprinting requirements for health
care providers; charitable gaming and online ticket
sales; access to federal stabilization funds; wills;
unfair or deceptive trade practices; and meetings of
shareholders; and providing for an effective date."
2:35:59 PM
Co-Chair Merrick indicated the committee would be taking up
amendments for HB 76. There were 7 amendments that had been
submitted. She reviewed a list of people available online.
Representative Josephson MOVED to ADOPT Amendment 1 (copy
on file):
Page 1, line 2, following "pandemic;":
Insert "approving and ratifying declarations of a
public health disaster emergency;"
Page 3, line 21, following "EMERGENCY;":
Insert "APPROVAL, RATIFICATION, AND"
Page 3, line 22, following "EMERGENCY.":
Insert a new subsection to read:
"(a) The declarations of a public health disaster
emergency issued by the governor on November 15,
2020, December 15, 2020, and January 15, 2021,
are approved and ratified."
Reletter the following subsections accordingly.
Page 3, line 28:
Delete "(a)"
Insert "(b)"
Page 4, line 5:
Delete "(b)"
Insert "(c)"
Page 11, line 7:
Delete "If this Act takes effect after February
14, 2021"
Insert "(a) Except as provided in (b) of this
section"
Page 11, following line 8:
Insert a new subsection to read:
"(b) Section 2(a) of this Act is retroactive to
November 15, 2020."
Representative Carpenter OBJECTED for discussion.
Representative Josephson reviewed the amendment. He hoped
that the amendment would be agreeable to every branch of
government. It did what had been done in the prior year in
March. The legislature had been sued because there was a
belief that the revised program legislative (RPL) process
had not been followed properly. As a result, the
legislature essentially blessed the governor's first batch
of RPLs. His amendment was analogous. According to the
legislature's counsel, the governor's extension of the
emergency declaration after November 15th was not within
his power. The amendment acknowledged that the legislature
had the power by ratifying the governor's extension. He
thought the governor would like the amendment.
Representative Carpenter thought the legislature failed to
act in the past, and it should be a part of the past. He
did not believe the amendment was necessary.
Representative Edgmon spoke in strong support of the
amendment. He thought it was apparent in the prior
November, December, and January before the convening of the
legislature, that there were impediments associated with
bringing the legislature together to declare a disaster
declaration required by law. The governor decided to make
the declaration under the circumstances. He thought the
governor had made the right decision because of the
restrictions resulting from Covid. He gave additional
reasons behind not being able to come together as a
legislature prior to the beginning of session. He agreed
with the maker of the amendment that it also provided cover
for the governor if there was any kind of litigation
surrounding the issue in the future.
Representative Rasmussen asked Mr. Dunmire to speak to what
the amendment would do to the legislature's ability to
bring forth a lawsuit and whether it protected the governor
from a lawsuit.
2:41:43 PM
ANDREW DUNMMIRE, ATTORNEY, LEGISLATIVE LEGAL SERVICES (via
teleconference), was not prepared to discuss the issue. He
could look into it and get back to the committee.
Representative Rasmussen asked Mr. Dunmmire to speak to the
function of the amendment. Mr. Dunmire responded that the
amendment would put the legislature's stamp of approval on
the three disaster declarations that the governor made in
November [2020], December [2020], and January [2021] during
the interim period when the legislature was not in session.
The law, as it was currently written, allowed the governor
to declare a disaster. However, it was up to the
legislature to extend it. In the current situation the
governor made 30-day extensions in the interim when the
legislature was not in session.
Representative Rasmussen asked if the amendment was
effective regardless of language about an emergency
declaration in any amended version of the bill. In other
words, if the legislature took the language out that was
currently calling a situation an emergency declaration,
would the amendment accomplish the same thing. Mr. Dummier
responded that it would accomplish the same thing because
it would ratify the disaster declarations made in the past
and not anything that was currently taking place.
Representative Wool commented that the past was relevant.
He thought the amendment provided good cover.
Representative LeBon thought an affirmative vote on the
amendment would be recognition that the legislature had not
completely ceded its authority on the action by the
governor. It would also allow the whole body to consider
the question once it reached the house floor as to whether
the retroactive authority was appropriate.
2:45:00 PM
Co-Chair Foster remarked he was hearing the upside to the
amendment and would be supporting it.
Representative Carpenter had a previous conversation with
Megan Wallace about the bill. He was concerned with the
retroactive nature of the amendment and the bill. There was
a Supreme Court case law that supported the use of
retroactivity in bills. There was also some exceptions and
constraints that accompanied retroactivity. The retroactive
application of the extension, as long as it did not impact
substantive rights, was likely okay. However, if it
impacted substantive rights, the legislature might be in
legal jeopardy. He had discussed the issue with Ms. Wallace
and would be happy to share the legal opinion with the
committee. He thought the legislature might be opening
itself up to some scrutiny.
Representative Rasmussen agreed with Representative
Carpenter's hesitation about lines 4-6 on page 2 of the
amendment. She wanted to offer a friendly amendment and
asked if the maker was willing to remove the section
keeping everything prior to it. In other words, her
conceptual amendment to the amendment would delete
lines 4-6 on page 2.
Representative Josephson was not willing to remove the
section.
2:47:40 PM
AT EASE
2:48:06 PM
RECONVENED
Co-Chair Merrick asked Representative Carpenter if he
maintained his objection.
Representative Carpenter MAINTAINED the OBJECTION.
[A roll call vote was in progress when Representative
Johnson expressed confusion about what was being voted on.]
2:49:01 PM
AT EASE
2:49:52 PM
RECONVENED
Representative Josephson restated his motion to move
Amendment 1.
Representative Carpenter OBJECTED.
Representative Josephson offered a brief summary of the
amendment.
Representative Rasmussen clarified that the amendment
retroactively dated the entire bill in front of the
committee to November 15, 2020.
2:51:01 PM
AT EASE
2:52:48 PM
RECONVENED
Co-Chair Merrick asked Representative Josephson to clarify.
Representative Josephson thought the retroactivity extended
to Section 2(a) of the bill. It was designed to merely
cover the extensions after the expiration.
Co-Chair Merrick asked if Representative Johnson had any
questions. Representative Johnson responded in the
negative.
Representative Carpenter had a legal opinion from Megan
Wallace which he would distribute to members. He read a
portion of the opinion:
"Retroactive application of the disaster extension
does not appear to affect any substantive rights and
is, therefore, likely to be upheld if challenged."
Representative Carpenter thought it sounded like the
amendment would support what Representative Josephson was
trying to do in his amendment. However, he thought Ms.
Wallace's opinion around a substantive right might be
inaccurate. There were varied substantive rights of people
in Alaska who were unable to travel for certain reasons.
Therefore, he thought the legislature was opening itself up
to potential litigation by taking retroactive action.
Representative Josephson thought Representative Carpenter
had stated that the legislature's lead counsel had problems
with the substantive application of his amendment. However,
Representative Carpenter was currently reading it as if she
did not have problems with it. He wanted to clarify whether
the legislature's lead counsel had problems with his
amendment.
Representative Carpenter thought Ms. Wallace opined that
there was not a problem. However, her argument as to why
did not pass muster.
2:55:21 PM
AT EASE
2:59:23 PM
RECONVENED
Representative Josephson indicated Amendment 1 was before
the committee. He had read the legal opinion by the
Legislature's lead counsel. She indicated that the
amendment was proper, and a court was likely to uphold an
extension with a valid retroactive provision. The provision
contained in the measure the legislature used to extend the
disaster declaration could be done retroactively. It was
not what Representative Carpenter stated the first time he
spoke on Representative Josephson's amendment. If the chair
was inclined to roll the amendment to the bottom, he would
not oppose it.
Co-Chair Merrick thought Megan Wallace of Legislative Legal
Services was online.
Co-Chair Merrick rolled Amendment 1 to the bottom of the
amendment packet.
Representative Josephson MOVED to ADOPT Amendment 2 (copy
on file):
Page 10, lines 16 - 21:
Delete all material.
Renumber the following bill sections accordingly.
Page 10, line 31:
Delete "5 - 12"
Insert "5 - 11"
Representative Rasmussen OBJECTED for discussion.
Representative Josephson reviewed the amendment. He
indicated that SB 241, which passed in March 2020 and
extended the Covid-19 declaration, had two provisions
related to liability in the context of Covid. The
provisions were in Section 4 and Section 32. The provision
in Section 4 contained standing orders that Dr. Zink or her
designee would issue orders on how medical providers would
mitigate their activities to protect patients. The current
bill did not contain such a provision. Section 32 of SB 241
contained a provision exclusive to personal protective
equipment (PPE) and liability around defective PPE. The
same section was not contained in the legislation being
considered. Instead, there was language, which he thought
was problematic, from SB 56 [Legislation introduced in 2021
regarding the extension of the Covid-19 disaster
declaration]. He continued that when the House readopted
the language in HB 76, it needed to be remedied. He read
from a portion of the bill on page 10. He was concerned
that the bill extended liability protection to
corporations. He was also concerned because the language
suggested that if a doctor did anything wrong that did not
comply with an order, proclamation, or declaration, they
would not be held liable. He was proposing to return to the
background liability law, which meant returning to the way
liability was handled prior to Covid. He proposed to delete
the language in Section 12 of the bill.
Representative Rasmussen asked if the amendment had any
impact on somebody at the grocery store who unknowingly
spread Covid-19. Representative Josephson did not know what
the law and liability would be in the context of someone
unknowingly spreading Covid. Obtaining proof was the issue
and liability would not likely attach.
3:05:26 PM
Representative Rasmussen referred to Section 12 of the
bill. She asked if civil liability extended to people
accountable for unknowingly passing on Covid-19. She wanted
to better understand the purpose of the section.
MEGAN WALLACE, DIRECTOR, LEGISLATIVE LEGAL SERVICES, ALASKA
STATE LEGISLATURE (via teleconference), asked the
representative to repeat her question.
Representative Rasmussen restated her question.
Ms. Wallace replied that the civil liability protection in
the bill covered a person for action taken on or after
February 14 [2021]and before the effective date of the act
that did not comply with an order, proclamation, or
declaration adopted by the governor. It meant that any
person that acted between February 14, 2021 (when the
declaration initially expired) and the effective date of
the bill, would not be held liable.
Representative Rasmussen asked if the provision would
include travelers coming to Alaska without testing. Ms.
Wallace responded that testing was a recommendation rather
than a mandate and was completely voluntary. She did not
want to speculate that definitively a person would not be
held liable if they knowingly had Covid and engaged in
reckless conduct.
3:09:36 PM
Representative Josephson asked, if the legislature were to
pass the bill with the language contained in the amendment,
whether the declaration would be the legislature's or the
governor's since the governor did not unilaterally issue
the declaration. Ms. Wallace replied that if the
legislature were to act on the bill it would be an
extension of the governor's extension. Under Title 26 the
disaster act did not specifically provide for a legislative
disaster. In her opinion it would be an extension of the
governor's disaster declaration.
Representative Josephson clarified that the amendment was
more generous to parties that might harm other people by
spreading Covid-19 during the gap period between
February 14, 2021, to the effective date of the act. He
mentioned SB 241. Ms. Wallace did not have the language of
SB 241 in front of her, however she confirmed that the
language was narrower.
3:12:21 PM
Representative Wool understood the gap between February
14, 2021, and the effective date of the bill. He asked
where the civil liability clause was in the bill. He
provided a hypothetical scenario. He wondered if there was
any protection for a business. He was concerned with
frivolous lawsuits.
Ms. Wallace responded that there was no other liability
protection currently in the legislation. Absent the clause
they were discussing, a claim would have to be adjudicated
through the court system based on the current set of rules
and expectations of conduct. Any kind of policy decision or
desire to extend liability protection would have to be
included or made as part of a separate piece of
legislation.
Representative Wool asked if the amendment language only
covered the gap period. Ms. Wallace confirmed the amendment
only covered the gap period. Because the bill was
retroactive, it made it clear that if someone exercised
conduct within the gap period, they would not be held
liable for the conduct.
3:16:14 PM
Representative Wool commented that there were other
amendments the committee would be considering in the
meeting. He referenced an amendment that provided immunity
from liability. If the amendment were included in the bill
and the gap period was removed, there might be increased
vulnerability for a business after the bill passed. Ms.
Wallace did not understand Representative Wool's question.
Representative Wool restated his question and referenced
Section 12 of the bill.
Ms. Wallace clarified that the intent of section 12 and the
liability provision being discussed a person would not be
held liable during the gap period at a time that a mandate
or order was being issued. She indicated the language
clarified that a person would not be liable in the gap
period. Representative Wool thanked Ms. Wallace.
Representative Carpenter asked, in talking about liability
protections, whether she was talking about rights that were
considered substantive. Ms. Wallace explained that when
talking about liability or liability protection, there
could be several liability issues, particularly concerning
the uncertainty of people raising claims against other
persons or businesses after contracting Covid. She did not
think that substantive rights violations were being
discussed. They would fall under the category of
constitutional issues.
Representative Carpenter thought civil liability was being
discussed and Ms. Wallace was excluding civil rights. Ms.
Wallace clarified that the civil liability language in the
bill protected conduct that either complied or did not
comply with an order, proclamation, or declaration. A
person always maintained the power to raise a
constitutional violation and challenge. Someone might
assert that liability protected them. She was articulating
that the difference between certain kinds of liabilities
and those that involved substantive rights were not one and
the same.
Representative Carpenter argued that a substantive right
regarding the Supreme Court's decision would include some
sort of constitutional right. Ms. Wallace's recommendation
to the committee, through her opinion given to him,
specifically stated that retroactive application of the
disaster extension did not appear to affect any substantive
rights and was, therefore, likely to be upheld [in court].
The committee was discussing things the legislature thought
it needed liability from that most definitely could be some
substantive rights issues. He commented that there was some
circular reasoning taking place that might put the
legislature in jeopardy. He felt he had to point out
retroactivity as being a cause.
3:22:59 PM
Ms. Wallace replied that the civil liability provision in
the bill was intended so that if the governor issued a
subsequent order or proclamation, it would not be used as a
basis for what conduct someone should have undertaken in
the gap period. It meant that a person would not be held to
the standard of an order that was not in place at the time
they acted. Absent the language, someone might argue that
they should not have taken an action because it was not
permissible under an order not in place. Her comments were
focused on the liability language in Section 12. Her
opinion was that retroactivity and substantive rights were
separate issues.
Representative LeBon asked how gross negligence played into
civil liability in the current discussion. If someone made
a good faith effort to follow best practices but ended up
acting with gross negligence, he wondered if there would be
civil liability for the person. He suspected the answer was
no. He asked if he was accurate. Ms. Wallace replied that
the language in section 12 was currently drafted broad
enough that it did not distinguish between negative and
grossly negative conduct.
Representative LeBon thought that if a person was
intentionally misbehaving there would still be a potential
for wrong doing even if the committee passed the amendment.
Representative Josephson thought Representative Carpenter
was referring Section 12 which he thought related more to
tort. He provided a hypothetical scenario and asked if it
fit the meaning of Section 12.
Ms. Wallace responded in the negative.
Representative Rasmussen MAINTAINED her OBJECTTION.
A roll call vote was taken on the motion.
IN FAVOR: Edgmon, Josephson, Ortiz, Foster
OPPOSED: Johnson, LeBon, Rasmussen, Thompson, Wool,
Carpenter, Merrick
The MOTION to ADOPT Amendment 2 FAILED (4/7).
3:28:39 PM
AT EASE
3:29:13 PM
RECONVENED
Co-Chair Merrick indicated the meeting would be recessed
until Friday, March 19, 2021, following the University of
Alaska finance subcommittee meeting scheduled to begin at
1:30 p.m.
HB 76 was HEARD and HELD in committee for further
consideration.
^RECESSED TO THE CALL OF THE CHAIR
3:29:30 PM
[Note: meeting was recessed until the following afternoon
where the bill hearing continued. See separate minutes
dated 3/19/21 for detail.]