Lawmakers ponder balance of power issues in pandemic

During another Special Session via online technology on April 22, Utah lawmakers overwhelmingly passed a bill requiring Gov. Gary Herbert to notify them prior to issuing any pandemic executive order.

SALT LAKE CITY – In the midst of the ongoing Coronavirus outbreak, the question of the day is starting to be: “Who’s in charge here?”

At a state level, a task force led by Lt Gov. Spencer Cox is coordinating Utah’s response to the health crisis and developments are updated by Gov. Gary Herbert on a daily basis during a broadcast press conference.

But the Utah Legislature has passed a bill requiring Herbert to give lawmakers 24 hours notice prior to issuing certain emergency orders. The vote margins by which that bill was approved in the Utah House and Senate during the second legislative special session of the past two weeks indicate that lawmakers are ready to overturn a veto from the governor, if necessary.

At the local level, health district officials across the state are also issuing updates and advisories on a daily basis. In some locations, health officials are coordinating closely with elected officials. In others, however, local social distancing and business closure guidelines are actually exceeding those coming from state level.

Those situations have prompted a growing chorus of voices to question the influence of local public health officials in the response to the Coronavirus.

At the State Capitol, lawmakers disputed the narrative that the passage of House Bill 3005 was a legislative over-reach aimed at limiting the powers of the governor.

The bill merely brings more “balance” to the relationship between the executive and legislative branches of the state government in an emergency situation, according to Sen. Luz Escamilla, D-Salt Lake.

But the new law will not only require consultation with lawmakers prior to any executive order, but also create a Legislative Pandemic Response Team of House and Senate leaders and give the Legislature the power to overturn executive orders through passage of a joint resolution.

The balance of power between elected officials and health officials at local level is also matter of concern to some observers.

“One of the things that has surprised me during this Coronavirus outbreak is how much power that health department officials have in this kind of situation,” said Tina Cannon, a member of the Morgan County Council and a candidate for Utah’s seat in the 1st Congressional District. “This thing has turned around to the point where health department officials are completely in charge. But they’re not elected officials who are accountable to the public.”

That concern was echoed by Kerry Gibson, another GOP congressional candidate. In one of his virtual town hall meetings, Gibson admitted that he worries that local health officials have “tunnel vision” in that they sometimes issue social distancing and stay-at-home orders without considering their economic consequences.

An attempt to resolve the “who’s in charge?” question at local level was introduced in the Legislature on April 16. House Bill 3009 would have mandated that elected officials – mayors, county commissioners, city managers — make decision on “orders of constraint” in a declared emergency rather than district health officials.

One of the bill’s sponsors, Sen. Jacob L. Anderegg, R-Lehi, said HB 3009 came in response to ill-conceived definitions of what constituted essential businesses in the recent stay-at-home orders issued by health officials in Summit and Salt Lake counties.

The proposal is now “on-hold” after being met with a barrage of negative public response via social media. But Anderegg said HB 3009 would likely be re-considered by lawmakers during another special session in May.

The “who’s in charge?” issue isn’t a critical concern in the Bear River Health District, according to Cache County Executive Craig Buttars.

“One of the changes that we’ve made recently,” Buttars explained in a April 14 meeting of the Cache County Council, “is that the health orders being issued by the Bear River Health District are now signed by Director Lloyd Berentzen, myself, Commissioner Jeff Scott from Box Elder County and Commissioner Bill Cox from Rich County, because we all serve on the BRHD board of health. That demonstrates that we’ve all been involved in the discussions that led up to those orders and concur with them.”

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