At Arizona Capitol, rules for testifying and attendance at Legislature are 'going back to pre-COVID'

Gov. Doug Ducey gives his final State of the State address during the opening day of the 2022 Arizona legislative session at the State House of Representatives in Phoenix on Jan. 10, 2022.
Mary Jo Pitzl
Arizona Republic

Judith Simons has some things to say to Arizona lawmakers about education policy, but she's not sure how she'll do it.

She calls her representatives, and emails them as well, but when the time comes to testify at a committee hearing at the Capitol, she's wrestling with the requirement that she must attend in person, given the state of the COVID-19 pandemic.

Unlike last year, when remote participation was possible for the public as well as lawmakers, this year is a quest to return to normal, even as the omicron variant of the virus runs roughshod over Arizona.

“We’re going back to pre-COVID, even though COVID is still around," said Kim Quintero, communications director for the Arizona Senate. 

Reaction to the policy cuts along partisan lines: Democrats are furious that COVID-19 protocols advertised on the Legislature's website are optional and say GOP leaders are playing with people's health. 

Republicans say they've made accommodations for lawmakers with medical conditions and note the public has many tools to communicate with them, including the Legislature's request-to-speak system, which lodges comments in the public record.

The split was no more apparent than on Jan. 10, opening day of the 55th Legislature's second session. Almost to a person, Democrats were wearing masks and Republicans weren't.

There were a few exceptions: Former Republican Gov. Jan Brewer was in attendance, sporting an ochre-colored mask that coordinated with her jacket. She took it off for photos, but marveled at how many people were attending the crowded event in the House chamber without masks.

First Lady Angela Ducey wore a mask as she watched her husband, GOP Gov. Doug Ducey, deliver his State of the State address. Supreme Court Justice Ann Timmer was masked.

But the stark divide between the parties was a symptom of the debate that is roiling statehouses nationwide: How to deal with a mutating virus that health experts say isn't going anywhere.

State of the State 2022: Recap Gov. Ducey's final address to Arizona Legislature

Show up if you have something to say

In Arizona, as legislative committees begin meeting Tuesday, members of the public who want to testify must do so in person. COVID-19 precautions, such as wearing masks and keeping distance between people, are optional.

That's what frustrates Simons, a retired public school teacher: She doesn't think voluntary measures cut it.

“They’re obviously not taking public health, not even their colleagues’ health, into account," she said, referring to legislative leaders. 

But Republican lawmakers, who control both the House and Senate, say it's time to get back to normal operations.

Last year, testimony via Zoom was disastrous, said House Speaker Rusty Bowers, R-Mesa.

"We're not going back to last year," he said. Testimony came from people driving their car, while in a bar, and even a car wash, he said. It detracts from the gravitas of the Legislature.

"We didn't have any malfunctions, but we came close," he said, referring to Zoom screens picking more of a person's state of dress than anyone wants to see.

Some COVID-19 accommodations

Rapid testing and temperature checks are available for lawmakers and anyone who is contagious will get an excused absence, said Andrew Wilder, a spokesman for the House Republicans.

In the Senate, the sergeant at arms is authorized to redirect or turn away people if a hearing room becomes too crowded, Quintero said, adding they are cognizant of how packed some hearings can be.

As the first week of the legislative session drew to a close, a number of lawmakers of both parties reported positive COVID-19 tests and Wilder confirmed that two House staffers had tested positive as well.

Many suspected the busy opening ceremony Jan. 10 was to blame, but without contact tracing, it's hard to know. Lawmakers can request contact tracing, but are not required to do so.

How the public can weigh in

Members of the public have other options if they're nervous about too much close contact, said Rep. Gail Griffin, R-Hereford and chairwoman of the House Natural Resources, Energy and Water Committee. That applies as well to the lobbyists and state and local officials who typically crowd into hearing rooms to testify on bills.

These people can always write, call or log their comments in the request-to-speak system, Griffin said.

But being able to address a committee, even via a screen, creates interaction an email or a phone call can't, said Gabriella Cázares-Kelly, the Pima County recorder. 

“The benefit of being there is the additional questioning that comes with testimony," Cázares-Kelly said.

Seeing lawmakers in person gives a chance to correct misconceptions, or point out where something is already in law, she said. With elections bills likely a hot topic this year, being able to have a back-and-forth with committee members and read their body language and other visual cues is important, she said.

Plus, remote testimony via Zoom saves lots of time and travel for people who live outside Phoenix. Cazares Kelly said a trip to the Capitol from Tucson can eat up a whole day, depending on how long a committee runs. Delays are not uncommon.

Rep. Regina Cobb, R-Kingman, chairs the House Appropriations Committee, an important panel for putting together the state budget. Appropriations hearings are often heavily attended. 

Cobb said remote testimony was glitchy, to the point that it was a hindrance. The Zoom feed would often cut out in midstream, she said, leaving lawmakers with only a portion of a person's testimony.

As for the time and travel required for in-person testimony, Cobb had little sympathy.

"Life is difficult," she said. "I traveled from Kingman."

If an issue is so important to a person, she added, "They'd be here."

Simon is leaning that way, despite her concerns about COVID-19 exposure.

“If it’s a case where I’m very strongly in favor of or against, I will go down," she said.

Democrats protest new rules

Lawmakers are also divided on how they themselves can participate.

Both Bowers and Senate President Karen Fann, R-Prescott, have outlined the rules: Legislators can vote remotely from their Capitol offices if they have a medical condition. But if they want to ask questions in committees or explain their votes, they must be in the room where the debate is happening.

In response, the Democratic leaders have asked for a return to remote access, saying otherwise the in-person requirements risk spreading the virus and depriving lawmakers of their ability to represent their constituents.

They worry about people hiding a positive COVID-19 test "because they feel like they cannot adequately do their jobs and bring the voices of their clients or organizations to the state capital," House Minority Leader Reginald Bolding and Senate Minority Leader Rebecca Rios wrote to their GOP counterparts.

Likewise, the policy forces a lawmaker who has to isolate or quarantine to stay home and miss legislative work, unless the lawmaker doesn't disclose a positive COVID-19 test result, the two wrote.

"We should also not create an incentive for members concerned about the progress of their bills to hide a positive diagnosis in order to keep working," they added.

Work from home twice denied

Earlier this month, Rep. Athena Salman, D-Tempe, took to Twitter to complain that her request to Speaker Bowers to work remotely from home due to the impending birth of her baby was ignored. She missed opening day and was counted as absent.

Salman has since announced she will take a 12-week leave of absence to bond with her baby, who was born Tuesday. Her husband, Sen. Juan Mendez, D-Tempe, has indicated he will take a leave of four weeks, but will virtually attend Democratic caucus meetings and briefings to keep up on issues. Those meetings are not bound by the Senate policy. 

Sen. Lela Alston, D-Phoenix, also said she was denied permission from Fann to work remotely from home. On the advice of her oncologist who is treating her for cancer, Alston stayed away from the Capitol as she isolated while recovering from a COVID-19 infection.

A veteran of the Legislature, Alston said it pained her to miss the first week of the session, including what would have been the 30th opening day ceremony of her career. But she didn't see an option: If she came into her office, she risked exposing staff and anyone else she would encounter while in the Senate building.

She was marked as absent for the first week of the legislative session, a label that suggests she was shirking her duties.

"It completely cuts me off," she said of the in-person policy. "It's so ridiculous. It's a public health pandemic, for goodness sake."

Shifting positions on remote work

Democrats have short memories, said Andrew Wilder, a spokesman for House Republicans. Two years ago, when the early days of the pandemic upended normal legislative proceedings, all but one Democrat in the House objected to allowing remote voting.

Among them was Salman, who said a "virtual Legislature" would create a dangerous precedent. Other Democrats suggested that risk of exposure should not be a reason to end in-person work. Despite their objections in 2020, House Republicans did support remote options.

But that was then, and this is now, said Robbie Sherwood, a spokesman for House Democrats. So much more was learned over the last two years on how to operate safely during the pandemic. Remote participation is one of those tools and should be used to curb the spread of the contagious virus, he said.

In the days following the crowded opening ceremony, lawmakers from both parties reported having contracted the virus. Wilder confirmed that two staff members had a positive COVID-19 test and went home.

Alston, who said she will return to the Capitol this week, said she suspects remote voting will be off limits, at least for awhile.

"That will be the case until one of their members gets sick," she said, referring to Republicans. "Then they'll change the rules."

It happened last year, when Sen. David Gowan, R-Sierra Vista, got sick. Republicans needed his vote on crucial bills, as they have only a one-vote margin in the Senate. All of a sudden, remote voting from home was allowed. 

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