The KBA Advocate is the weekly KBA legislative newsletter that contains up-to-date information on legislation that impacts your practice. It is only published when the legislature is in session and is sent to all KBA members electronically via the KBA Weekly.
Late last week the Kansas Legislature adjourned for 2020 after a two-day Special Session. The Special Session became necessary when Gov. Laura Kelly vetoed COVID-19-related legislation on May 26th. The 2020 Legislative Regular, Veto and Special Sessions saw a significant decrease in legislation passed. It could be argued that 2020 was the least productive session in Kansas history, with fewer than 20 bills approved. On the flip side, we witnessed an increase in the number of issues vetoed by the governor or rejected by the legislature. For instance, Gov. Kelly vetoed HB 2054 which was the Omnibus COVID-19 response bill which forced the Special Session.
The Governor also vetoed:
• HB 2510 that contained education legislation
• HB 2619 which created a loan program for economic recovery, and
• HB 2702 dealing with property valuation
The legislature rejected two of Gov. Kelly’s executive reorganization measures. One reorganization effort would have combined DCF with KDADS; the other would have created the Energy Office. Finally, the Kansas Senate rejected the Court of Appeals nomination of Carl Folsom. The Governor will need to nominate a new candidate to fill the Court of Appeals vacancy.
The legislature was able to reach a compromise with the Governor’s Office on a new COVID-19 measure. That bill—HB 2016—was negotiated by the Governor’s office and legislative leaders. The rank and file members were not privy to these discussions. HB 2016 contains legislative oversight for federal COVID funds, new limitations on the Governor’s powers to close schools and businesses, immunity for healthcare groups and some businesses, product liability protection and extension of certain executive orders.
The bill extends the emergency declaration until Sept. 15th. The governor can extend that date for 15 days with the approval of the State Finance Council. The governor can close schools, but local school boards will have the authority to override her decision. Closing businesses will be left to county commissioners and local health officials.
The bill also creates Contact Tracing Privacy Act to protect the privacy of individuals whose information is collected through contract tracing measures. Contact tracing will not be mandatory, and those refusing to engage in contact tracing will be immune from liability.
Finally, the bill creates a provision that protects notarial acts (notarized signatures) performed via electronic means during the emergency declaration. This creates a safe harbor for remote notaries.
With the adjournment of the 2020 legislative session legislators will return to their districts to begin the campaign season. All 125 house seats are up as are all 40 State Senate seats. We will also have four congressional races and a very significant U.S. Senate race.
As I write this report, the Kansas Legislature is preparing to enter its 24th Special Session—and only the third this century. Gov. Laura Kelly called the Special Session to deal with the Kansas Emergency Management Act. Last week, Gov. Kelly vetoed Senate Sub for HB 2054 which would have significantly amended KEMA. The bill also would have provided funding oversight for the Coronavirus Aid, Relief and Economic Security Act, granted immunity to business and healthcare groups, extended certain executive orders, and allowed the use of tele-medicine.
Once the bill was vetoed, the governor issued a new emergency declaration—a necessary action since the previous declaration was set to expire at midnight on May 26th. The new declaration removed the Ad Astra Statewide Reopening Plan and placed that authority with county governments. Going forward, county commissioners are to decide whether to place any limits before reopening. For instance, Riley County is now open with some restrictions.
The new declaration extends certain executive orders. Those include the use of remote notaries and witnesses to act via audio-visual communication, extends the deadline for tax payments, suspends rules related to the sale of alcohol and extends telemedicine criteria. The latest declaration is set to expire on June 10th.
The legislature will need to negotiate with the Governor’s office on changes to KEMA during the Special Session while negotiating the COVID-19 response that has now moved to local governments. Many legislators advocated for more local control to deal with the pandemic. It will be interesting to see how much legislating takes place when a large issue has been resolved in their favor.With the emergency declaration set to end on June 10th,legislators have a week to move issues to the governor’s desk. One weekmay be sufficient to sort out the problems and come to a mutually beneficial product, but that is not a guarantee.
One major issue is that the legislative process must start anew; there are no “carry-over” bills. Each bill will have to be introduced and move through the legislative process again, which will eat up valuable time. Another issue is deciding what bills actually get worked. KEMA and the emergency declaration are the reasons for the special session, but the legislatureis not restricted to address only those matters. Lawmakers can choose to take up any issue. While unlikely due to the time crunch, they could decide to debate abortion or Medicaid expansion, tax cuts or budgetary issues. The list could grow exponentially. Finally, the Kansas Senate may attempt to confirm the Governor’s Court of Appeals nominee, Carl Folsom. That could get political and drag the special session out even longer.
How the legislature deals with the special session remains to be seen, but given the election year consequences, anything can happen.