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story.lead_photo.caption Gov. Asa Hutchinson answers a question during the covid-19 briefing on Wednesday, Sept. 16, 2020, at the University of Arkansas Community College at Batesville. (Arkansas Democrat-Gazette/Thomas Metthe) - Photo by Thomas Metthe

FAYETTEVILLE -- Gov. Asa Hutchinson gets high marks across party lines for many of his decisions under the emergency powers act, but some local legislative candidates on either side of the partisan divide expressed concern about the breadth of those powers.

The candidates gave their opinions in response to a questionnaire from the Northwest Arkansas Democrat-Gazette. The candidates are all on the Nov. 3 general election ballot and seek to represent districts that include at least some part of Benton or Washington counties. All but three of the 26 candidates participated.

The question about the governor and the continuing covid-19 emergency was: "What do you think about the governor's exercise of his executive powers during the pandemic? Would you propose any changes to the state's emergency powers act?"

The Arkansas Emergency Services Act of 1973 permits whoever is governor to declare an emergency and "issue executive orders, proclamations and regulations and amend or rescind them" to address the situations. It also says those "executive orders, proclamations and regulations have the force and effect of law."

The governor first declared an emergency because of the covid-19 pandemic in March and has extended the emergency since. He extended the emergency declaration most recently on Aug. 14, for another 60 days.

Eighteen members of the 135-member Legislature joined a lawsuit earlier this month suing to end the state of the emergency. None of the region's legislators who were sent the questionnaire are plaintiffs in the lawsuit against the governor. None of the other candidates sent the questionnaire are plaintiffs either.

"The governor did a good job early in the pandemic when decisions had to be made quickly," said incumbent Rep. Clint Penzo, R-Springdale.

"Now that more information is available, I would like to see more legislative oversight. If any situation meets the severity to declare an emergency, it should also meet the threshold to call a special session of the Legislature."

Hawley Woods, Penzo's Democratic challenger in the House District 88 race, holds much the same view, although she was more critical of the governor's early decisions.

"I agree with several of the actions he took because sometimes you do need a strong leader to step forward and act," Woods said. "I think some of them could have been made sooner, such as the mask mandate. I do think he needed to close down access to crowded places that could become hotbeds to spread the virus. I do not understand, however, why the governor is not letting the Legislature perform its function of appropriating money. Representatives should decide how to appropriate money to best help their constituents."

CARES money

Arkansas received about $1.25 billion in federal taxpayer dollars through the federal Coronavirus Aid, Relief and Economic Security Act, commonly known as the CARES Act.

The money is to fight the covid-19 pandemic in the state and mitigate its economic effects. The governor set a steering committee to decide where the money should be spent. The Legislative Council, a committee of the Legislature that oversees state operations when the Legislature is not in session, has the power to reject decisions of the governor and his steering committee.

However, legislators have complained the Legislative Council process is designed for fine-tuning and overseeing state policy and spending, not allocating more than a $1 billion of public money. Allocating public money is the constitutional role of the Legislature -- its chief power under the constitution.

In all, four Democrats and seven Republicans of the 23 candidates said they would at least consider changes to the state's Emergency Powers Act, although most did not have a specific change they proposed.

One candidate with a specific proposal was Josh Bryant of Rogers, Republican nominee is the House District 96 race.

"I would support the change of a special legislative session being mandatory if the governor declares an emergency," Bryant said. "This would allow the Legislature to form independent committees to monitor the various state agencies being tasked with critical changes into how business is conducted."

Democrat Jon Comstock, Bryant's Democratic opponent, praised Hutchinson's actions overall but would also consider limiting emergency powers in the future.

"On balance, I believe that the governor has acted properly and with restraint," Comstock said. "It does seem that the Legislature should play a greater role when it comes to allocating federal dollars for the pandemic response. I don't know enough of the details to know what that would look like exactly, but I do believe it should be reviewed."

Pros and Cons

Others had a more mixed view of Hutchinson's use of emergency powers.

"Like most people, there are actions the governor has taken in an emergency situation that I agree with and things I disagree with," said Rep. Jim Dotson, R-Bentonville. "The current emergency powers act is from 1973, before the days of digital communication, so the covid-19 pandemic has created an opportunity to improve upon our emergency powers act and bring more accountability to it."

Dotson drew an opponent in his District 93 House race. Democrat Daisy Bonilla said she would not make any changes to the state law.

"It's in our state's best interest that we implement consistent prevention guidelines for everyone to follow across the state in order to protect one another to the best of our ability," Bonilla said of the governor's mask mandate.

"However, I do not agree with the governor's executive order that protects businesses from lawsuits related to covid-19 and makes it harder for workers to receive worker's compensation if they contract covid-19," she said. She referred to the governor's June 15 executive order granting immunity from civil liability to businesses and their employees resulting from exposure to covid-19. The immunity does not apply in cases of willful, reckless or intentional misconduct.

Sen. Jim Hendren, R-Sulphur Springs, praised the overall actions of Hutchinson, who is his uncle. In principle Hendren also supported the governor -- any governor -- being "able to make decisions quickly during times of emergencies. The legislative process is simply too slow to allow for timely decisions during a crisis.

"I do think there should be some discussion about emergencies that extend over many months and how the Legislature might be called in to session to affirm or remove executive orders that do not represent the will of the people of Arkansas as represented in the General Assembly," Hendren said.

Hendren's Democratic opponent in Senate District 2 did not respond to the survey.

Rep. Robin Lundstrum, R-Elm Springs of House District 87, praised the governor's early actions, but now worries about the precedent being set.

"Even during a pandemic, we have three equal branches of government," she said. "As Gov. Hutchinson continues to extend the emergency powers, when we are no longer in an emergency, we are setting new precedence in governing that is stretching constitutional boundaries," Lundstrum said.

Lundstrum's Democratic opponent is Michael Bennett-Spears. He was not as pleased with this governor's decisions, but would not propose any changes to the emergency powers act, he said.

"I don't approve of his use of executive power to protect businesses from being sued for putting employees in harm's way during this pandemic, which would include the harder hit communities that work in the poultry plants, "Bennett-Spears said.

"I understand that we are facing unprecedented times and some degree of risk is unavoidable, but shifting the burden to the labor force in an already uncertain time only adds to the degree of distrust and fear while setting a dangerous precedent."

More News

Editor’s note

The Northwest Arkansas Democrat-Gazette sent a questionnaire to the 26 legislative candidates in our region in contested races. A questionnaire was chosen because of the ongoing covid-19 pandemic. Restrictions on gatherings curtail the usual sources of information to voters such as debates, forums and “meet the candidate” events.

This is the third of six stories on their answers.

Answers

The following are the complete answers given by candidates for Arkansas Senate and House to the following question:

“What do you think about the governor’s exercise of his executive powers during the pandemic? Would you propose any changes to the state’s Emergency Powers Act?”

An asterisk (*) by the candidate’s name signifies he is an incumbent.

House 80

Charlene Fite (R)* — “These are unprecedented times. For the most part, I believe Governor Hutchinson has provided the right balance between the economy and public safety.”

Lou Reed Sharp (D) — “I think the governor missed the opportunity to save lives by failing to use his emergency powers to require the mask mandate sooner. In April, we knew that the combination of wearing face masks and social distancing contained the virus. How many lives could have been saved if we had listened to the experts all those months ago?

“The governor has also abused his emergency power by putting the blame on sick people when they get infected by the gross negligence of employers or health care providers. Instead of just doing the right thing, the governor took a convoluted, carrot and stick approach, and issued a trio of executive orders on June 15, which limits the liability of health care facilities and workplaces if they substantially adopted Arkansas Department of Health guidelines. Sadly, these executive orders just don’t add up. The consequences are that people are going to get stuck with medical bills they can’t afford because they are forced into unsafe work situations or unsafe medical practices. The incentives just don’t align to protect people. I will put public health first.

“I would propose that the state’s Emergency Powers Act be updated to make it clear that the Legislature — a coequal branch of the Arkansas government — has a role to approve emergency action after it can safely meet. The fact that these emergency declarations are in place when the state Legislature is now safely meeting, isn’t right. There needs to be more legislative oversight in order to limit government overreach.”

House 85

David Whitaker (D)*— “The governor’s use of emergency powers has really been a mixed bag in my view. I oppose his over-reach when he ties the hands of cities, counties and school districts that are trying to enact common-sense measures to protect their citizens. I see it as part and parcel of an ongoing assault on home rule in favor of direct rule from Little Rock. On the other hand, a lot of us have been frustrated by his hesitancy to issue needed orders in a timely manner. It’s clear that we should have mandated masks sooner. It’s clear that we should have struck a more serious tone in our messaging about social distancing earlier and it’s clear that we failed to educate the public about the dangers of this virus.”

Brian Hester (R) — “I believe the governor has done a good job during a difficult time. He has had to make some tough decisions in an attempt to do what he believes is best for Arkansas.”

House 86

Nicole Clowney (D)* — “Few things are more sacred in our country than the principle of the balance of powers in which each branch of our government works to hold the other branches accountable. I play a role in that system of checks and balances at the state level, and I take that oath very seriously. At the same time, extraordinary circumstances sometimes require the use of emergency powers. Thus far, I believe Governor Hutchinson has taken a very measured approach to his orders. I have supported many of his decisions, like the mask mandate and first responder protections. I have disagreed with others, like the order providing liability immunity for businesses.

“Of course, it is dangerous for any one person to hold unlimited power, for an unlimited amount of time. But that’s not what we’re seeing in Arkansas today. While we should always stay vigilant against potential abuses of power, we do need to recognize that in times of a global pandemic and a state health emergency, the most prudent path forward will require executive orders from our governor on issues limited to the pandemic and only for the duration of the pandemic.”

John LaTour (R) — “The governor is doing a good job.”

House 87

Robin Lundstrum (R)* — “Even during a pandemic, we have three equal branches of government. Governor Hutchinson performed very well especially during the first two months when little was known and there was concern and confusion. The state needed stable leadership which Governor Hutchinson provided. As Governor Hutchinson continues to extend the emergency powers, when we are no longer in an emergency, we are setting new precedence in governing that is stretching constitutional boundaries. I grow increasingly concerned we are setting up an unequal and unsustainable imbalance of government. We have three co-equal branches of government for a reason. Legislative oversight and input on all budget matters is paramount to maintaining balance in government.”

Michael Bennett-Spears (D) — “I don’t approve of his use of executive power to protect businesses from being sued for putting employees in harm’s way during this pandemic, which would include the harder hit communities that work in the poultry plants. I understand that we are facing unprecedented times and some degree of risk is unavoidable, but shifting the burden to the labor force in an already uncertain time only adds to the degree of distrust and fear while setting a dangerous precedent. I believe Governor Hutchinson has been too slow in using his power as governor to make the critically time sensitive decisions to protect Arkansans.

“I would not propose any changes to the state’s Emergency Powers Act.”

House 88

Clint Penzo (R)* — “The governor did a good job early in the pandemic when decisions had to be made quickly. Now that more information is available, I would like to see more legislative oversight. If any situation meets the severity to declare an emergency, it should also meet the threshold to call a special session of the Legislature. The governor needs the ability to make decisions quickly in an emergency situation, but the legislative branch needs to be involved as soon as possible.”

Hawley Woods (D) — “I agree with several of the actions he took because sometimes you do need a strong leader to step forward and act. I think some of them could have been made sooner, such as the mask mandate. I do think he needed to close down access to crowded places that could become hotbeds to spread the virus. I do not understand, however, why the governor is not letting the Legislature perform its function of appropriating money. Representatives should decide how to appropriate money to best help their constituents.”

House 89

Megan Godfrey (D)* — “I support our state being able to move quickly and decisively during an emergency, which sometimes means action needs to be taken by the governor or Health Department rather than a vote of the Legislature. I would keep an open mind regarding proposed changes to the Emergency Powers Act, but would oppose restrictions that risk our state’s ability to effectively respond to emergency conditions. In addition, it’s important to note that even when legislators don’t have a vote, we have a voice, and I see it as my job to find ways to be creative and energetic in impacting policy. In public and behind the scenes, I have frequently spoken up for policies that have helped Springdale, and I’m proud of the difference we’ve made.”

Jed Duggar (R) — “I believe Governor Hutchinson is doing a good job balancing public health while making sure our small businesses and employers can keep local jobs and our state’s economy as vibrant as possible. I believe appropriating our state tax dollars is the job of the Legislature, so we need to look for areas that could be improved and develop a response plan in case we are ever faced with this sort of situation again in the future.”

House 90

Kendon Underwood (R) – Declined to participate in the survey.

Kelly Krout (D) — “Many were warranted. I appreciated him closing schools in the spring and shutting many businesses down when he did. I wish the mask mandate had been sooner, and I think we have hastily moved into later phases, but I understand the pressure to reopen, and I don’t envy the governor having to make these tough calls for all Arkansas.”

House 91

Nick Jones (D) — “When the governor takes actions that benefit the health and well-being of the citizens of Arkansas, such as wearing a mask or confirming the right to vote absentee, I am for. When the governor acts in the interests of lobbyists and corporations, providing immunity to those businesses that put profit over people, I am strongly opposed.”

Delia Haak (R) — “Governor Hutchinson formed crisis management teams in a number of key areas to focus our state’s experts on how best to navigate this unprecedented health, economic and educational emergency. We must be sensitive to the urgent needs of people and families during this time. Whole industries have been put on hold while other businesses and individuals have been able to maintain, retool and adapt to new opportunities. The state’s Emergency Powers Act is to be used only in extraordinary circumstances and goals for the end game articulated to the public.”

House 93

Jim Dotson (R)* — “Like most people, there are actions the governor has taken in an emergency situation that I agree with and things I disagree with. The current Emergency Powers Act is from 1973, before the days of digital communication, so the covid-19 pandemic has created an opportunity to improve upon our Emergency Powers Act and bring more accountability to it.”

Daisy Bonilla (D) — “I would not make any changes to the state’s Emergency Powers Act as it was originally declared in March.

“Regarding the governor’s use of other executive powers, I agree with the governor’s statewide mask mandate. It’s in our state’s best interest that we implement consistent prevention guidelines for everyone to follow across the state in order to protect one another to the best of our ability.

“However, I do not agree with the governor’s executive order that protects businesses from lawsuits related to covid-19 and makes it harder for workers to receive worker’s compensation if they contract covid-19.”

House 94

John Carr (R) — “This particular situation with the pandemic is a longer term emergency, and the legislative branch should be involved to assist. The Arkansas Emergency Services Act of 1973 should include a provision to trigger a special session of the Legislature if an emergency situation is warranted beyond a few days.”

Jene Huffman-Gilreath (D) — “While I feel the governor acted much too late to mandate masks, I was very thankful that he did act. I would not change the state’s Emergency Powers Act.”

House 96

Josh Bryant (R) —“The Emergency Powers Act is an invaluable tool for the executive branch to utilize when action is immediately required; however precision is rarely a companion to immediate actions. The governor has issued too many executive orders during this emergency in which the stake-holders could not prepare or fully understand the requirements of the order. This leads to loss of revenue and fear of government retaliation if a box isn’t checked.

“I would support the change of a special legislative session being mandatory if the governor declares an emergency. This would allow the Legislature to form independent committees to monitor the various state agencies being tasked with critical changes into how business is conducted.”

Jon Comstock (D) — “On balance, I believe that the governor has acted properly and with restraint. It does seem that the Legislature should play a greater role when it comes to allocating federal dollars for the pandemic response. I don’t know enough of the details to know what that would look like exactly, but I do believe it should be reviewed.”

Senate 1

Ronetta Francis (D) — “This pandemic took all of us by storm. It was indeed unprecedented. I do believe Governor Hutchinson leveraged the powers afforded to him under state law to exercise the duties of his office for such a time as this. I commend him for gathering a body of advisers and subject-matter experts to assist with navigating us through the tough time.”

Bart Hester (R)* — Declined to participate in survey.

Senate 2

Jim Hendren (R)* — “It is essential the governor be able to make decisions quickly during times of emergencies. The legislative process is simply too slow to allow for timely decisions during a crisis. I do think there should be some discussion about emergencies that extend over many months and how the Legislature might be called in to session to affirm or remove executive orders that do not represent the will of the people of Arkansas as represented in the General Assembly.

Ryan Craig (D) – Did not reply to survey.

Doug Thompson can be reached by email at [email protected] or on Twitter @NWADoug.

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