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BOISE — After many hours of debate, two legislative working groups on Thursday called for a special session of the Legislature to be convened as soon as possible, on both civil liability and education issues stemming from the coronavirus pandemic.

The House and Senate Judiciary committees debated for more than three hours before their divided vote to recommend a special session to consider legislation to broadly provide immunity from lawsuits during all declared emergencies for businesses, government agencies, medical providers or others who make good-faith efforts to comply with laws and regulations.

Hours later, the House and Senate Education committees also voted to call for a special session, citing budget-flexibility proposals for schools now facing budget cuts, adjustments to school transportation funding and enrollment calculations, and clarifications on who has authority to close schools.

Rep. Ryan Kerby, R-New Plymouth, a retired school superintendent who serves on both panels, said four budget-flexibility proposals for schools submitted to the committee match changes enacted during the great recession, when schools also faced deep budget cuts. “It was a tremendous help,” he said.

The education panels didn’t endorse any specific draft legislation; just topics.

On the liability issue, the judiciary committees heard testimony Tuesday on concern over lawsuits stemming from the COVID-19 pandemic.

“My goal has always been to ensure that we aren’t authorizing poor behavior, that we aren’t giving coverage to bad actors, but rather, we’re allowing people to do their best in a rational way,” said House Judiciary Chairman Greg Chaney, R-Caldwell.

The standard, he said, should be, “What would a reasonably prudent person do? … Tying it to an emergency allows that quick, ‘we don’t have time to get our bearings about us’ response.”

The draft legislation on immunity from lawsuits won the support of the two judiciary committees, meeting as a joint working group, on a divided vote, with the House members backing it 12-6 and the Senate members backing it 7-2. It includes an emergency clause and would be a permanent change to Idaho law.

The panel is one of three legislative working groups looking into the need for a special session of the Legislature in response to the coronavirus pandemic; under the Idaho Constitution, only the governor could convene a special session.

The House and Senate Education committees were near-unanimous on backing a special session, with just Sen. Jim Woodward, R-Sagle, voting no.

In the judiciary working group, a competing proposal from Sen. Grant Burgoyne, D-Boise, for a more limited liability immunity proposal focused only on COVID-19, and with a “sunset” or expiration date of July 1, 2022, failed on a divided vote, with Senate members of the working group rejecting it 3-6 and House members closely split, 8-10.

Burgoyne called the approved proposal, drafted by Chaney, Senate Judiciary Chairman Todd Lakey, R-Nampa, and attorney Ken McClure of the Idaho Liability Reform Coalition, far too broad.

Rep. Melissa Wintrow, D-Boise, agreed. “It just doesn’t feel right in my gut,” she said, “and it feels rushed.”

A third proposal from Rep. Julianne Young, R-Blackfoot, to just call for a special session on COVID-19 liability without recommending any specific legislation also failed; it won majority support from House members of the working group, 11-7, but got just a 3-6 vote from Senate members. Under the charge from legislative leaders to the joint working group, each house’s members must pass a proposal for it to carry.

Chaney, who made the motion to approve the successful draft, argued against Young’s motion, saying, “Simply recommending a special session and walking away is an exercise in futility, complete futility. Because if these 27 people on this working group can’t get behind a draft now, why would we pay to bring 105 people to Boise to sit around and wait for us to do it later?”

Rep. Heather Scott, R-Blanchard, told the committee, “It is our job as a legislative body to address these issues.” She said she was “offended” that the governor asked for a specific proposal before agreeing to call for a special session. “I’m not ready to turn over my duties to the governor,” she declared.

Under the Idaho Constitution, only the governor can call the Legislature into special session, and the special session has no power to legislate on any subject other than those specified in the governor’s proclamation convening the special session.

Scott called instead for lawmakers to invoke the Idaho Constitution’s provisions for impeaching the governor. “If we truly as a body believe there are issues that need addressed, then let’s stop messing around,” she said.

Chaney said, “We can officially slam our fists on the proverbial desk and we can demand a special session, by golly.” But he said that would have little effect, saying, “We’re going to have to give him specific legislation sooner or later, so we may as well do it now.”

He spoke out against Burgoyne’s proposal, saying it would go too far to protect those who don’t make good-faith efforts to protect people during the COVID-19 pandemic, including long-term care facilities.

Kerby favored the successful draft, saying it would work well for schools.

“The schools people are getting guidance and recommendations from a return-to-school committee that the governor and state board put together; they’re getting recommendations from cities; they’re getting recommendations from health districts,” he said. “They’re conversing amongst their own staff. And it’s going to be very difficult to follow everybody’s wishes out there.”

The draft legislation would protect schools or other entities from lawsuits if they failed to follow guidelines, but not if they failed to follow mandated laws or regulations.

Kerby offered an example: “A kid goes to school, gets COVID, or thinks he got it there, goes home, and grandfather dies. There’s a lawsuit. It’s going to be very easy for them to make the case that the school district did not comply with one of those sets of guidelines,” he said.

Some Idaho school districts plan to reopen for the school year as soon as Aug. 14.

Karen Echeverria, executive director of the Idaho School Boards Association, testified to both working groups in favor of a special session. She said schools need both liability concerns and budget-flexibility issues settled now, as they launch classes for the fall.

“We would need to know sooner rather than later,” she said. “Because by January, more than half of our funds are going to be expended. … If we have the flexibility now, then we know that we could move money around in those particular line items.”

Betsy Z. Russell is the Boise bureau chief and state capitol reporter for the Idaho Press and Adams Publishing Group. Follow her on Twitter at @BetsyZRussell.

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