A joint legislative working group voted 16-2 Thursday to recommend Idaho Gov. Brad Little call a special session to address liability concerns related to the coronavirus.

However, the 27-member Judiciary and Rules Working Group couldn’t agree on the scope of any proposed legislation, leaving co-chairman Rep. Greg Chaney, R-Caldwell, to wonder why the governor would think 105 lawmakers meeting in Boise at taxpayer expense could do any better.

“If we don’t come up with a piece of legislation through this (working group) process that we can understand and feel comfortable advancing, … we don’t get a special session,” Chaney said. “If we signal to the governor, ‘Look, this is kinda, maybe what we want to do, but we have no real consensus,’ there may be hesitation (in calling a session). If we can’t work it out among ourselves without a special session, what’s to say we can work it out with one?”

Over the past few months, various business, education and government entities have advocated for greater liability protection, saying they’re afraid of being sued by people who allegedly contracted the coronavirus at their facilities, or who were negatively affected by actions they took in response to the pandemic.

School districts, for example, could be sued by parents who say their kids were infected because teachers didn’t do an adequate job enforcing a mask requirement.

While lawmakers could wait until the 2021 legislative session to take up this issue, schools and other entities say action is needed in the immediate future.

Under the Idaho Constitution, only the governor has the power to call a special session. He also has the authority to delineate what issue or issues would be addressed.

For weeks now, Little has said he’ll consider calling a special session — when lawmakers reach consensus on a particular topic.

The judiciary working group technically met that standard Thursday. It supported a draft bill that would provide immunity from civil liability to schools, businesses, government entities and individuals during times of declared emergencies.

However, although the proposal passed 12-6 among the working group’s House members and 7-2 among its Senate members, several House lawmakers indicated their support was provisional.

“I absolutely support the recommendation for a special session, and I’d support a motion that says we should consider legislation similar to this draft (proposal),” said House Assistant Majority Leader Jason Monks, R-Nampa. “But if this is the only draft that’s brought forward, I have reservations. I couldn’t support this as our only recommendation.”

Monks noted that Idaho governors have declared more than 20 extreme emergencies over the past 35 years, together with an untold number of regular emergencies.

“So this (proposed legislation) could literally be in effect all the time,” he said. “That gives me pause. COVID-19 might be unique, but this legislation wouldn’t be for a unique situation.”

As presented, the draft bill would offer immunity for actions and decisions made during any declared emergency, so long as the business or individual made a good faith effort to comply with the laws, regulations and guidance in effect during the emergency.

Chaney wrote the bill with input from the Idaho Liability Reform Coalition, which represents a variety of business, industry and school stakeholders.

The intent, he said, is to provide additional liability protection to entities that act in good faith during an emergency, so long as they take reasonable steps to comply with any applicable health and safety guidelines.

“The goal isn’t to shield bad actors,” he said. “There’s a bar that must be reached before you get any extra (liability) protection. I think that’s appropriate.”

Under his proposal, Chaney said, schools that make a good faith effort to get kids to wear face masks or use hand sanitizer would be protected, but those that willfully or negligently cut corners would not.

By contrast, Sen. Grant Burgoyne, D-Boise, advocated for a more limited liability waiver bill that would only apply to “damages or injury resulting from exposure of an individual to COVID-19.”

“The issue of ‘good faith’ is a question that only a jury can decide,” said Burgoyne, who like Chaney is an attorney. “So if you have to take that claim to a jury to resolve, (Chaney’s bill) isn’t going to cut down on the uncertainty or litigation costs.”

He encouraged members of the working group to read his proposed legislation, along with Chaney’s.

“The one that’s harder to understand will cost you more,” he said. “It will create more uncertainty for you in conducting your business affairs or government duties.”

Rep. John McCrostie, D-Boise, supported a more limited approach that focused solely on responses to the coronavirus.

“If we’ve been able to get by without a bill like (Chaney’s) for this long, I question whether we need something that’s broad in scope,” McCrostie said.

A majority of the working group’s House members supported a motion to call a special session to discuss the liability issue, without recommending any specific legislation. However, that motion failed when a majority of the Senate members opposed it.

Burgoyne’s limited coronavirus liability proposal failed on 10-8 and 6-3 House and Senate votes, respectively. That left Chaney’s proposal, which passed on 12-6 and 7-2 votes.

A committee report will now be delivered to House and Senate Republican leaders, who will determine what steps to take next. Two other working groups are also meeting to discuss possible coronavirus-related impacts on public school financial flexibility, election procedures and the governor’s emergency powers.

William L. Spence may be contacted at bspence@lmtribune.com or (208)-791-9168.

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