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Bill that would give legislators more oversight of governor’s emergency orders advances

A bill that would allow the state Legislature to review emergency orders put in place by the governor after 60 days is headed for a House-Senate conference committee.

House Bill 103 would also require the governor to justify the suspension of any laws during a declared emergency.

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The measure cleared its third and final floor vote on by a 24-2 vote on Wednesday. The no votes were cast by Oahu Sens. Donna Mercado Kim and Kurt Fevella — the latter the Senate’s lone Republican. Oahu Sen. Gil Riviere cast his aye vote with reservations.

Hawaii has been under a state of emergency because of the COVID-19 pandemic since the original declaration by Gov. David Ige on March 4, 2020. To date, Ige has issued 19 emergency proclamations.

If adopted, the law would be changed to require the governor to make a request for extension of an emergency period to the Legislature no later than 12 days prior to the 60-day conclusion of a declared emergency period, with extensions requiring the Legislature to agree by a concurrent resolution. If the Legislature fails to act, the extension automatically goes into effect.

Sen. Lorraine Inouye, a Democrat who represents Hamakua and parts of Hilo, Kohala and Kona, supports the bill. She said she thinks people are tired of the differing sets of rules between the state and the individual counties and are ready for a return to normal.

“If the governor extends (the emergency), there’s no hearings,” she said. “You know, the transparency part? That’s another reason the Legislature felt after the 60 days of a proclamation, if he wants to extend it, we’d like to know why. That’s what’s missing.”

Written testimony about the bill prior to a joint session of the Judiciary and Ways and Means committees earlier this month ran 6-4 in support of the measure.

Organizations in support include For Our Rights, Common Cause Hawaii, League of Women Voters Hawaii, the Civil Beat Law Center in the Public Interest and Hawaii Government Employees Association.

Some of the testimony took aim at Ige’s partial suspension of the state’s Sunshine Law — which provides for open meetings and decision making in public — and his complete suspension of the state’s public records law, since partially lifted.

Brian Black, executive director of the Civil Beat Law Center, called suspension of the public records law during an emergency “unnecessary because the rules that govern record requests already provide flexibility for agencies to address other priorities.” He added the public records law “serves a fundamental role even in emergencies.”

Sandy Ma, executive director of Common Cause, said the ability to request public records and receive them in a timely manner is “necessary for a functioning democracy.”

Randy Perreira, executive director of HGEA, a public employee union, called it “contrary to our democracy for any one individual to have unilateral authority to suspend laws indefinitely without a mechanism for public input and review.”

Organizations submitting testimony in opposition to the bill were the Hawaii Emergency Management Agency and Maui Chamber of Commerce.

Luke Meyers, HI-EMA administrator, said the bill, if enacted, “would severely limit the governor’s duties and legal obligations to provide for the public health, safety and welfare by limiting his ability to determine the duration of an emergency or disaster.”

“The requirement that the governor make the request for an extension to the Legislature no later than 12 days prior to the expiration of the emergency period … may create a situation where necessary ongoing emergency actions must be abruptly halted, causing confusion or inadvertently reversing progress made by the emergency action,” Meyer said.

Pamela Tumpap, president of the Maui Chamber of Commerce, noted the multi-island geography of Hawaii and the possibility of legislators being called into special session when the governor wants to extend an emergency period.

Tumpap said delays and costs associated with decision-making under those set of circumstances “often has a huge impact on our economic health and local community recovery.”

Grassroot Institute of Hawaii offered comments, with Joe Kent, the independent nonprofit think tank’s executive vice president, saying the bill “would take an important step toward addressing an oversight in the state’s current emergency management law that was not apparent until the COVID-19 pandemic: the lack of a meaningful legislative check on the governor’s emergency powers.”

It would seem likely Ige would veto the measure, should it reach his desk, and an override vote of two-thirds of the members in each legislative chamber would be necessary for the changes in the bill to become law.

Inouye said “it’s hard to say” if the Legislature would override a veto by Ige.

“Normally, the leadership looks at, ‘OK, how many bills are we going to override?’” she said. “And that’s the question. And in the past, we haven’t gone back into special session to override, because it costs money.”

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Hawaii County Mayor Mitch Roth didn’t return a call by the Tribune-Herald seeking comment.

Email John Burnett at jburnett@hawaiitribune-herald.com.

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