More changes coming to county health board, emergency power oversight bills

Quarantine and isolation definitional changes remain

The Montana Capitol at Night (Photo by Darrell Ehrlick of the Daily Montanan).

The state House of Representatives on Monday began the process of reconciling several overlapping proposals to limit the scope of public health policymaking in Montana, promulgating amendments to existing legislation aiming to check the authority of both the governor and county health officials in times of crisis.

The amendments the House Business and Labor committee heard Monday consolidate four bills — with bits and pieces from adjacent legislation — into two: one that requires local elected officials to sign off on public health orders from appointed county health boards, and one that gives the Legislature an opportunity to override an emergency declaration from the governor.

“I think the process of merging these two bills together was a very productive process,” Bedey said. “I think we’ve got improvements beyond what was in each of the two bills individually.”

The final bills, House Bill 121 and House Bill 230, from Reps. David Bedey and Matt Regier, respectively, are two of several pandemic-related proposals this session that seek to assert a greater role for elected policymakers at the statewide and local levels in the enactment of public health orders and mandates, especially in times of crisis.

The first major amendment the Business and Labor Committee heard Monday — without public comment, it’s worth noting — folds HB122 into HB230. It gives the governor 45 days in a state of emergency or disaster to “deal with the issue at hand,” as Regier put it; beyond that, a governor must request legislative approval through a polling process to renew the declaration.

“You need a positive action,” he said. “We’re giving a lot of latitude in the first 45 days, after that, the onus is on the governor to get our approval. That’s what was lacking in code before.”

The amendment also removes some provisions in Regier’s bill that were non-starters for Bedey, namely a section that would have allowed the Legislature to amend an order from the governor through a poll — that is to say, without actually convening — which gave rise to concerns over a lack of transparency.

“This notion of whether we make substantive changes in law via polling versus coming into special session is a critical issue,” Bedey said.

However, the amendment, which the committee has yet to vote on, leaves intact one controversial section prohibiting any public agency or official from interfering with “a person’s physical attendance at or operation of a religious facility.”

Republicans in Montana and state legislatures elsewhere have made legislation such as this a top priority, furthering a narrative of personal responsibility and pushing back on shutdown orders, curfews and mandates in the name of supporting business and balancing the powers of government.

Bedey, R-Hamilton, was the first lawmaker this session to advance legislation to this effect, introducing HB121 and HB122 in early January. But Regier, R-Kalispell, soon followed with HB230 and HB236, which opponents found to be so severe in their hamstringing of local health officials that they urged lawmakers to consider Bedey’s bills as a form of “harm reduction” instead.

And still others appeared, moving through the legislative process at different paces and yielding an overlapping, at times congruent and at times contradictory suite of bills that in various ways all seek to constrain the ability of the governor and county health boards to act without additional oversight by other elected officials.

The Business and Labor’s task this week is essentially to blend together elements from all of these proposals — HB121, HB122, HB230 and HB236 — into two coherent bills, one to address the governor’s powers and one to address the authority of county health officials. Bedey and Regier began this process alongside GOP leadership in private earlier in the month, introducing amendments Monday that combine key parts of both sets of proposals.

As all four of the bills had already received hearings in other committees, committee chair Rep. Mark Noland, R-Bigfork, said Monday he would not allow another round of public testimony on the reconciled versions.

The second amendment before the committee combines HB236 with HB121. Per the reconciled bill, several duties previously set aside for local boards of health would become recommendations that the board must make to the local governing body — a board of city or county commissioners, in this case — for approval.

These include the power to appoint of a local health officer, to make regulations for the control of sewage and to control the spread of communicable diseases. In an emergency, the county health officers can still issue directives, but the local elected officials would have the opportunity to review, alter or overturn those orders.

“This puts a duty on the local authority to choose to intervene,” said Bedey, who added that he discussed these changes with the Montana Association of Counties, which “finds this to be a good division of labor.”

An official from MACo could not be reached for comment in time for publication.

However, the provision in Regier’s bill that was most alarming to health officials remains in Bedey’s bill, which contains language effectively preventing the isolation or quarantining of anyone who isn’t confirmed to have a communicable disease — possibly preventing the isolation of those who are symptomatic but have yet to test positive for COVID-19 or whatever the next pandemic might be.

“The definition of isolation and quarantine, if you put them back in, will match what is accepted internationally for those terms,” said Rep. Willis Curdy, D-Missoula.

The committee did not take immediate action on either bill Monday, and the amendments to reconcile the four bills may themselves be amended.

One outstanding question is what will become of the bills of a similar subject that are not captured in this effort. While HB145, which would require county health boards to get approval from local elected officials to do just about anything, was tabled in the House Local Government Committee in January, HB257 passed on a partisan vote out of the House last week.

That bill, sponsored by Rep. Jed Hinkle, R-Belgrade, would prevent any local ordinances or resolutions that “compel a private business to deny a customer of the private business access to the premises or access to goods or services.” It would moreover prevent the government from fining a business, removing its license, or taking any other “retributive action” against a private business for violating the ordinance in question, effectively declawing local mask mandates and other such orders.

“We’re holding off a bit on the Hinkle bill,” said Senate President Mark Blasdel, R-Kalispell, in a press availability Monday. “We’ll have to work with our staff as far as coordinating language.”

Either way, the bills aren’t likely to find a welcome audience among Democrats, some of whom aren’t thrilled about the way Republican leadership let the reconciliation process play out largely away from the public eye.

“If we’re gonna be a working group as a whole working group then maybe we should be able to be involved with the stakeholders,” said Rep. Andrea Olsen, D-Missoula. “I believe that in such a short period of time to try to recreate a process by which government responds to and addresses public health concerns is…irresponsible, confusing and can most likely lead to unintended consequences that could harm our constituents.”