With the onset of COVID-19, Utahns watched the Emergency Management Act in effect for an extended period for the first time in our state’s history. It became clear the Emergency Management Act is not structured for long-term emergencies such as a pandemic. After listening to Utahns' concerns, the Senate and the House of Representatives began working with the governor’s office to create checks on broad executive emergency powers.
S.B. 195 Emergency Response Amendments, limits extensive executive emergency powers during long-term emergencies without hindering rapid response. It does not disrupt the executive branch’s or health department’s ability to respond to short-term emergencies, such as natural disasters.
“The COVID-19 pandemic has been new territory for all of us, and over the last 11 months, we realized the need for adjustments,” said Sen. Evan Vickers, Senate sponsor. “Utahns voiced concerns and lawmakers looked for ways to improve the process to ensure democracy is upheld, even in times of crisis. We have an opportunity and duty to take the lessons learned and prepare for future prolonged pandemics, whether it is in a year or 30 years.”
In an extended emergency, S.B. 195 would allow opportunities for the public to provide input, ensure fines are not overburdensome and address concerns with executive powers and state and local health departments.
“The past year has been unlike any before and each branch of government did their best to address many unforeseen challenges,” said Rep. Val Peterson. “Moving forward, we must ensure that our actions maintain the appropriate separation of powers during both long-term and short-term emergencies.”
In Utah, preparation is part of our foundation and heritage. Together, as a state, we are finding ways to protect Utahns’ rights during prolonged emergencies while still promptly addressing and providing for state needs.
“The pandemic showed that modifications were needed in order to adequately face our next extended emergency,” said Sen. Luz Escamilla. “During a state of emergency, decisiveness is critical, and suspending some rules and laws may be needed. However, when an emergency extends past a specific time frame, it can no longer be classified as an emergency but instead should be considered a prolonged circumstance.”
The proposed changes to emergency powers are not a condemnation of any agency, individual or action. The Senate and House of Representatives, along with the governor's office, have been involved and support the bill concepts, which will continue to be refined as the bill goes through the legislative process.
A detailed summary of the bill is as follows:
Emergency Response Amendments Foundational Principles
- Create checks on executive emergency powers without hindering rapid emergency response • Apply state policies to local level in relation to health departments, chief executives, and legislative bodies
Checks on Broad, Restrictive Orders
- Places checks on broad, restrictive orders issued by public health officials through the defined term "order of constraint," which are emergency actions taken by the state or local health departments that:
- Apply broadly to groups or places; and
- Enforce isolations, quarantines or stay at home orders, exercise control over public gatherings or property, or closes schools, theaters, or other gathering places (lines 446-458, 260, 655-666).
- Legislature may terminate:
- an order of constraint or restriction issued by the state or local health departments (lines 314-315, 370- 371, 627-628, 826-827, 892-893)
- a local emergency declaration or emergency action of a city or county chief executive (lines 1469-1470). Note: The Legislature already has this power in relation to an order issued by the governor.
- County governing body may terminate:
- an order of constraint issued by a local health department (lines 316-317, 629-631, 828-830, 834-836, 894-896, 900-902)
- an order of constraint or an order of restriction issued by a local health department (lines 316-317, 372- 373, 536-537)
- Requires a local health department to provide notice to a county legislative body before declaring a public health emergency or issuing an order of constraint (lines 784-772)
- Prohibits a local health department from issuing an order of constraint without approval of the relevant county chief executive (lines 824-825, 831-833 890-891, 897-899)
- Prohibits UDOH from issuing an order of constraint without notifying legislative leadership in the same way the governor is currently required (lines 493-496).
Nullification of Executive Powers
In an emergency that lasts longer than 30 days, allows the Legislature to identify and nullify individual emergency powers of the governor, the Division of Emergency Management, or the chief executive of a political subdivision (lines 1264- 1280)
Expiration of Emergencies
- Prohibits the governor, state or local health departments, or local chief executive from continuing an emergency after it has expired (lines 519-522, 529-531, 808-811, 818-821, 1240-1242, 1249-1252, 1346-1348, 1355-1358).
- Specifies that a public health emergency, state emergency, and local emergency expires the earliest of the following:
- When the person that issued the emergency determines the need has passed;
- When terminated by the Legislature for a public health emergency/state emergency, by a local legislative body for a local emergency or public health emergency, or by the local chief executive for a public health emergency;
- 30 days after it is issued; or
- The date designated by the Legislature for a state/public health emergency, or local legislative body for a local emergency. (lines 506-514, 793-801, 1229-1235, 1330-1340)
Unilateral Extension of Emergencies
- After an emergency has expired, allows the relevant state or a local health department, governor, or a local chief executive to re-declare the emergency without legislative body approval in "exigent circumstances" (lines 523- 528, 812-817, 1243-1246, 1349-1354). Exigent circumstances occur when there are increased and imminent threats to public health or safety that were not known and could not have been known when the original emergency expired (lines 435-441, 1079-1085).
- Requires the state and local departments of health to notify the Legislature or county legislative body respectively before unilaterally re-declaring an emergency (lines 524, 813-814)
Legislative Review of Continuing Emergencies
- If the governor or the state or local departments of health needs to extend an emergency, they must notify the speaker/president no fewer than 10 days before the expiration of the emergency (lines 538-544, 919-924, 1526- 1531).
- Speaker/president poll the Legislature regarding whether to extend the emergency (lines 549-550, 928-929, 1537- 1538).
- Newly created Legislative Emergency Response Committee may convene to review the first 30-day extension but is required to convene to before a second or subsequent 30-day extension (lines 551-556, 930-932, 1539-1543). • To get a broad cross-section of the Legislature, the Legislative Emergency Response Committee is composed of the current makeup of the Executive Appropriations Committee, with 4-6 additional appointments by the speaker and president each. Additional members appointed with respect to minority/majority and House/Senate balances (lines 1498-1523).
- Committee convenes to receive public comment, receive expert testimony, and recommend whether to extend the emergency (lines 557-566, 931-940, 1544-1552)
Prohibits the governor, the state or local departments of health, or a local chief executive from placing a more restrictive order of constraint on a religious gathering than on other public gatherings (lines 568-583, 837-853, 903-918, 1554-1571).
Limitations on Penalties
With regards to an existing $10,000 maximum fine that may be levied by the Utah Department of Health for a violation of a health order, clarifies the fine is applicable only to businesses, creates a similar $150 maximum fine for individuals, and allows for the penalties to be waived (lines 385-404)
Administrative Rules Review
Provides a review process for the Administrative Rules Review Committee to review and provide recommendations on administrative rules and other executive actions made under emergency procedures (1657-1659, 1678-1675, 1740-1742).