Md. lawmakers have no guidebook for legislating during a pandemic

Senate President Bill Ferguson and House Speaker Adrienne Jones were grim-faced at Gov. Larry Hogan's news conference on COVID-19 Thursday. (The Daily Record/Bryan P. Sears)

Senate President Bill Ferguson and House Speaker Adrienne Jones were grim-faced at Gov. Larry Hogan’s news conference on COVID-19 Thursday. (The Daily Record/Bryan P. Sears)

ANNAPOLIS — There were no gatherings of people in the State House Friday. The usual suspects — the advocates and the lobbyists and the tour groups that usually congregate in the spaces between the House and Senate chambers — were devoid of people save for a few state employees.

On any other typical day, a session in the Senate would be opened with a prayer from a member of the clergy invited by one of the senators. Instead, Sen. Kathy Klausmeier read a poem clipped from a newspaper and saved by her late mother-in-law.

In the galleries, two lobbyists sat and watched what soon became the last legislative session they will likely be allowed to view for at least the foreseeable future.

Welcome to lawmaking in the time of pandemic.

Senate President Bill Ferguson, in his first session leading the chamber, called for his colleagues to be flexible.

“When they asked what it was going to be like following someone who was here for 33 years, I said ‘Well, there’s no template, there’s no guidebook,'” said Ferguson. “Throw a pandemic on top of it.”

Now the session is about change and flexibility.

During his comments Thursday morning, Ferguson announced lobbyists would no longer be allowed to attend floor sessions and committee hearings — a change from 12 hours earlier. Seconds after the announcement, two lobbyists who sat alone in the gallery above gathered their belongings and left.

On Thursday, Gov. Larry Hogan announced the state’s first case of COVID-19 from community transmission. The dozen cases before that were all in someway related to foreign travel.

The governor also announced a series a sweeping orders that included the closure of public schools for at least the next two weeks as well as the closure of all state buildings to the public, including the State House.

By Friday night, Hogan was calling for the General Assembly to swiftly approve the state’s operating budget, confirm his new state police superintendent and pass emergency legislation related to the COVID-19 response — all no later than by Tuesday.

“It is impossible at this time to know how long this public health emergency will continue, and it is critical for legislators to take these actions immediately in the event that this rapidly evolving situation requires them to immediately adjourn,” said Hogan in a statement.

The governor has no ability to end the session.

Friday morning, the chambers were quieter. Non-essential staff and the public all missing.

The House and Senate were scheduled to meet late Friday through the weekend, including a rare Sunday session. One longtime observer said she could only remember one such Sunday meeting around Easter or Palm Sunday nearly three decades ago.

No one knows for sure how long the General Assembly will continue to meet. The session is scheduled to end on April 6 but could end earlier.

Ferguson and Speaker Adrienne Jones are asking lawmakers to prioritize bills in case the need to end quickly arises. By law, the General Assembly need only pass a budget but there are other priorities including passing legislation on education and a package of bills to fund it that would raise $600-$700 million.

Comptroller Peter Franchot said state economy will be “significantly damaged” by the public health crisis.

“Annapolis for some reason is in a bubble right now and folks are stampeding in a rush to increase, if you can believe it, taxes by billions as if the house is not collapsing around us right now because of the coronavirus impact on our state’s economy,” Franchot said during an interview on WBAL radio. “So I would suggest for people that support higher taxes for education and people that oppose them, shouldn’t we take a time out and make sure we get through the coronavirus situation before we add to the burden of increasing people’s taxes, etc.?”

In the House, Jones told delegates that hearings would move to sponsor-only, meaning only lawmakers can present bills to committees. Lobbyists and advocates and the public would not be allowed to attend but could submit written testimony through their respective delegates.

“No one will be permitted to linger in the hallways of the buildings,” said Jones.

Lobbyists outside said they would have to rely on a combination of waiting for lawmakers to cross from the office buildings to the State House and the use of texts, emails and phone calls to make their cases.

The closures have raised questions about holding public meetings in the absence of the public, a right guaranteed by the Maryland Open Meetings Act.

“We are going to limit the access of the public, which is not something this body would ever feel comfortable in doing except for the fact of the extraordinary nature of the circumstances we find ourselves in,” said Ferguson.

And Ferguson and Jones have been advised that they have the ability to limit that access without running afoul of open meetings laws.

The act gives the public the right to attend and observe meetings of government bodies across the state including the legislature. But that law “does not afford the right to participate in the meetings,” according to a memo written by Sandy Brantley, counsel to the General Assembly.

And while the rules of both chambers establish how bills are handled by committees those rules are not laws and can be suspended. Brantley added that the open meetings laws can be suspended by the governor during a time of emergency.

Brantley advised the legislature that the standing committees should continue to provide public notice of meetings and agendas as well as continuing to livestream those hearings and floor proceedings.

Currently, credentialed members of the press are allowed to attend hearings and floor sessions but Brantley wrote in her memo that reporters could legally be limited to the galleries above the chambers rather than their current floor access. Reporters could also be prohibited from attending committee hearings.

But Friday, on the first day that the public was barred from the building, the House and Senate livestreams were subject to widespread outages. Reporters and lawmakers received complaints from staff and lobbyists and interested Marylanders complaining about an inability to listen in.

“The internet is down again,” said Sen. J.B. Jennings. “We’ve been having problems all morning.”

And while the House continued through the problem the Senate paused.

“If the internet or stream is not working, I don’t think we should proceed. I think we should take a recess.” said Ferguson. “We’re working on it. This has got to be right given the circumstances.”




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