HELENA — Hugs. Back slaps. Group huddles. Masks perched on chins.
That was the scene at the Republican legislative caucuses on Wednesday, one that Lewis and Clark County Public Health Office Drenda Niemann had warned of, and that at least one Democratic leader described as a worrying sign of how precautions meant to minimize the spread of COVID-19 will — or won’t — be followed by a significant number of lawmakers in the coming months.
In a Monday letter, Niemann asked lawmakers to consider participating in their caucuses virtually and to maintain social distancing and wear face masks when caucusing in person, in addition to following other public health guidelines. On Thursday, she told Montana Free Press she was disappointed to see so many lawmakers disregard that advice.
“Legislators are our local leaders, and local leaders need to stand up and support public health,” she said.
The disregard of public health directives on display at the Capitol Wednesday raises questions about the upcoming 2021 legislative session: Will lawmakers adhere to current health orders including a statewide mask mandate while at the Capitol? Will leadership encourage or ensure that legislators follow local public health directives? And if not, can anyone make them?
On Thursday, the state reported 1,236 new cases of COVID-19 statewide. Of those, 55 are in Lewis and Clark County, which currently has 826 active cases and has recorded nine COVID-19 deaths.
For anyone other than lawmakers — including lobbyists, legislative staff and members of the public — county and state orders such as the statewide mask mandate apply. But it will ultimately be up the Republican-controlled Legislature to determine what rules lawmakers must abide by and how they’ll be enforced.
Susan Fox, executive director of the Montana Legislative Services Division, said legislative lawyers have determined that lawmakers are likely exempt from county or state health orders while conducting legislative business during the session, based on a section of the state Constitution that says a “member of the legislature is privileged from arrest during attendance at sessions of the legislature and in going to and returning therefrom, unless apprehended in the commission of a felony or breach of the peace.”
“Breach of the peace,” Fox said, is not well defined. Further, she said, the sergeant-at-arms for each chamber is bound to legislative rules, which have yet to be determined by lawmakers.
Niemann said she has received varying legal opinions, including from the Lewis and Clark County attorney and Gov. Steve Bullock’s office, regarding the county health department’s authority to enforce health directives at the Capitol. Given that lack of clarity, she said she’s hoping that lawmakers will decide to voluntarily abide by and self-enforce adherence to local health mandates.
But newly elected Senate President Mark Blasdel told Montana Free Press in an interview Thursday morning that his philosophy is to allow individuals to make their own decisions regarding adherence to public health mandates. He said individual caucuses determined how to handle their events and what precautions would be required for their meetings this week.
In the Senate GOP caucuses, he said, it was left to individual lawmakers to decide whether to wear a mask or maintain social distancing.
“We left it up to personal responsibility and personal choices,” Blasdel said. “We had members that felt that was what they wanted to do, and that’s the way I think it should be.”
He said that while he believes it’s important for legislators to do their work in-person, he believes the Legislature’s yet-to-be-set rules will allow accommodations for people who do choose to observer public health guidance, like seating Democrats in a corner of the Senate chambers where they can socially distance or allowing the public to comment on bill proposals virtually. Blasdel added that the process of determining how the session will be conducted when it starts in January is in its early stages.
House Minority Leader Kim Abbott said what she saw from her GOP counterparts on Wednesday was a discouraging sign of their respect for public health concerns, though she said she hopes the Legislature can agree to accommodations that allow social distancing and virtual participation in the session.
“What I saw on video … was reckless,” Abbott said. “We cannot participate in that kind of recklessness.”
Niemann said she’s received several complaints from members of the public who watched yesterday’s caucuses virtually, including one from a medical professional who Niemann said had “strong opinions” about the dearth of masks and lack of adherence to other public health recommendations. State officials also received one complaint related to yesterday’s caucuses, which was forwarded to Lewis and Clark County, said Montana Department of Public Health and Human Services spokesman Jon Ebelt.
Also on Wednesday, the Lewis and Clark City-County Board of Health delivered a letter asking legislative leaders to hold the entire 2021 session virtually. In the event that an all-virtual session is deemed impossible, the board asked the Legislature to allow as much virtual participation as possible, and to enforce strict adherence to social distancing recommendations and the statewide mask mandate.
The board also asked legislative leaders to assign a dedicated person to conduct contact tracing at the Capitol. The county doesn’t have the resources to conduct contact tracing of cases tied to a lawmaker or to the Capitol, which the board said would be a complicated, multi-county investigation.
“As we draw near the start of the 2021 Legislative session in January, the Lewis and Clark City-County Board of Health would like to take this opportunity to advocate that legislators carefully plan to provide the greatest amount of protection for legislative members, staff, the public, and our community here in Helena,” said to the letter, signed by Board of Health Chair Justin Murgel. “This request comes as the State of Montana, including Lewis and Clark County, are experiencing a sharp increase in daily COVID-19 case incidences. Our hospitals are stretched beyond capacity to serve our communities, and we are losing our neighbors, friends, and family to this disease. Unfortunately, Helena is no exception.”
Senate President Pro Tempore Jason Ellsworth said he hopes lawmakers and the public will bring concerns about the safety of the upcoming session to leaders or the Joint Rules Committee when it meets Dec. 8 to begin hashing out the session’s logistical details. Ellsworth added that he believes all lawmakers regardless of party are concerned about the pandemic and want to “be responsible to the public, to our constituents [and] to our staff.”
“I really believe that everybody here genuinely is concerned about everybody’s health. And I think we will address those things,” he said. “When we come up with those joint rules, we all sit down, and we all have factual, scientific-based evidence, and then we make our decisions. And that’s the process we’re going to go through.”
While how those decisions will play out remains unclear for now, Fox said legislative staff in the legislative fiscal, services and audit divisions will at least be required by division administrators to wear masks while working.
While any legislative session usually means a hectic Capitol, Fox said, the unresolved issue of public health rules and enforcement “just adds three layers of chaos.”