Utah lawmakers seek to curb emergency powers of governor, public health officials

Another bill under consideration aims to end mask orders and other COVID-19 restrictions.

(Francisco Kjolseth | Tribune file photo) The Capitol was closed to the public as members of the House and Senate gathered as the Utah State Legislature opened the 2021 legislative session at the Capitol in Salt Lake City on Tuesday, Jan. 19, 2021.

The Utah governor and his public health advisers would lose some of their power to singlehandedly issue long-lasting emergency orders under a new proposal, written following months of debate over executive actions during the coronavirus pandemic.

Still, the legislation doesn’t go far enough to satisfy some of those upset about mask mandates and other safety restrictions enacted during the COVID-19 era. And it has also sparked concerns among public health representatives who said medical experts need to stay in the driver’s seat during a health crisis.

“Here in Utah, we have stood as an example in many ways of how a balanced response has been able to slow the spread, saving lives and livelihoods,” Alysia Ducuara, president of Society for Public Health Educators of Utah, testified about the legislation. “Public health decisions should not be left to non-public-health professionals, and we fear that this bill would damage that decision-making.”

But the bill’s sponsors, Senate Majority Leader Evan Vickers and Rep. Val Peterson, said it would leave the governor, health officials and local leaders with the flexibility to act swiftly in any future pandemics.

“We didn’t want to hamstring the executive branch to the point where they can’t address emergencies,” Peterson, R-Orem, told the House Government Operations Committee. “The purpose behind this is to make sure that we have the appropriate balance between the executive branch and the legislative branch.”

The legislation places a number of checks on the power of public health officials to enact emergency orders, even allowing the state Legislature or county officials to suspend stay-at-home mandates at any time during a public health crisis.

A state of emergency declared by the health department and governor could last no more than a month unless the Legislature extended it, according to SB195. And during a public health emergency lasting longer than 30 days, health officials would have to give lawmakers 24 hours’ notice before issuing restrictions. For these long-standing emergencies, lawmakers would also be able to limit which emergency powers the governor or local leaders could exercise.

After an emergency declaration lapses, the governor or health officials could not issue a new one for the same disaster except under “exigent circumstances” arising if a situation has significantly worsened and poses “an imminent threat to public safety or health.”

This specific provision recalls last year’s tensions between former Gov. Gary Herbert and state lawmakers who refused to extend a lapsing COVID-19 emergency declaration. In that case, Herbert simply issued a new order, but that option would no longer be available under the bill sponsored by Vickers, R-Cedar City.

Also under the bill, the governor would generally have to give state lawmakers notice before taking any executive action during an emergency that lasts longer than 30 days. The process at the local level would be similar, with a county or city council able to terminate or extend a mayor’s emergency orders.

The measure also stipulates that public health orders can’t restrict religious meetings any more severely than other types of public gatherings.

And while flouting a health order can currently draw fines of up to $10,000 per violation, most people would pay no more than $150 for breaking these rules if Vickers’ legislation passes, and enforcement agencies couldn’t penalize the same person more than once a week. The measure would also allow fines of up to $5,000, but only for those who recklessly violate the rules in a way “likely to result in a serious threat to public health.”

Richard Saunders, executive director of the state’s health department, told committee members that laws on statewide emergencies didn’t seem to contemplate a scenario like COVID-19. And while health officials and the governor “did not make siloed or vacuumed” public health orders during the pandemic, the bill would set forth a more balanced approach to decision-making, he testified.

However, a handful of public commenters and one state representative suggested they’d like to see the legislation go further in reining in the power of public health officials.

“An emergency is an event, it is not a lifestyle change. You can’t really have a yearlong emergency,” said Dalane England, a Republican activist who indicated she wished the bill would prohibit any restrictions on religious gatherings.

And Rep. Phil Lyman, who has railed against mask mandates and COVID-19 closures, argued that public health officials shouldn’t have the power to issue economically damaging mandates — and that only elected officials with “skin in the game” should be allowed to restrict businesses and residents.

The bill passed the committee with all members voting in favor except for Lyman, R-Blanding. It will now head to the full House.

COVID ‘endgame’

While Vickers’ legislation is trying to lay the groundwork for future emergencies, another bill is attempting to develop an “endgame” for the current one, according to Rep. Paul Ray.

The measure sponsored by Ray would terminate local and state emergency orders once three things happen: First, the number of first-dose vaccines allocated to Utah tops 1.5 million; second, the state’s 14-day case rate is less than 101 per 100,000 people; and third, the state’s intensive care beds are no more than 15% filled by COVID-19 patients on average over a week.

As of Monday, the federal government has allocated a little more than 500,000 first doses to Utah, according to a health department spokesman. Ray testified in a House and Government Operations Committee hearing that he believes the total is closer to 900,000.

The legislation would also do away with health orders impacting K-12 schools in the state and allow each district to make its own decisions about whether to require masks. And even local mask orders would automatically expire by July 1, according to the legislation.

The bill, HB294, would also end the statewide mask order, although local governments could still issue their own versions.

A Utah public health order issued last week laid out a different framework for rolling back mask mandates, indicating that the first step would be for the federal government to allocate at least 1,633,000 first doses of the COVID-19 vaccine to the state.

Eight weeks after that point in time, masks will not be required in counties designated as having a “low” transmission level of the virus, according to the order signed by Saunders.

And he testified that some of the provisions in Ray’s bill were worrisome to the health experts in his agency. In particular, he said, Ray’s bill does not address large public events.

“Pulling back too early and letting these large gatherings take place, side-by-side seating and filled completely, is a concern to public health,” he testified.

He estimates that the state would only have to wait a couple of weeks to reach the 1,633,000-dose mark, encouraging lawmakers to hold off for that short period before getting rid of public health orders.

“We think it’s probably worth the wait to wait two or three more weeks to get the people vaccinated” so the state can get closer to herd immunity, he said.

The committee voted in favor of the bill, which will now move on to the full House.

Senate President Stuart Adams told reporters on Monday that he’s willing to give Ray’s bill consideration.

“Whether it’s time or not, I believe there needs to be an end,” Adams, R-Layton, said of the COVID-19 restrictions. “We need to get, ... if the numbers allow us to, as much back to normal as possible.”

—Tribune reporter Bryan Schott contributed to this report.