special session

Lee declines to sign nullification resolution passed during special session

A statue of President Andrew Jackson is seen in front of the state Capitol in Nashville on March 16, 2020. (Erik Schelzig, Tennessee Journal)

Gov. Bill Lee has declined to sign a resolution passed during a recent special session touting the state’s purported right to pass laws to nullify federal COVID-19 vaccination and mask requirements.

The Republican governor does not appear to have transmitted a statement to lawmakers about why he is allowing the resolution to go into effect without his signature.

The Senate version passed 24-6, while the House vote was 64-17.

Rep. John Ragan (R-Oak Ridge) carried the measure on behalf of House Speaker Cameron Sexton (R-Crossville).

“The nullification theory was first broached in 1832 when Tennessee’s own Andrew Jackson was president,” Ragan said in floor comments. “The state of South Carolina began it, and President Jackson threatened to invade with federal troops to settle the issue. However, the federal government ultimately backed down.”

Ragan’s statement drew a retort from Rep. Michael Curcio (R-Dickson).

“I wanted to make sure the record was clear: the federal government didn’t back down, South Carolina quit,” said Curcio, who voted against the resolution. “But they continued in their behavior until eventually Fort Sumter was fired on, creating a tragedy for this country. I want to remind everybody that emulating such behavior is very, very serious.”

The full language of the resolution follows.

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New TNJ edition alert: Special session post-mortem, Warner audit comes to nothing

A statue of President Andrew Jackson is seen in front of the state Capitol in Nashville on March 16, 2020. (Erik Schelzig, Tennessee Journal)

In this week’s edition of the print edition of The Tennessee Journal:

— Business concerns brushed aside in hurry-up special session.

— Registry punts on audit of Rep. Warner’s spending with mystery vendor but proceeds with probe of PAC.

— Knox GOP’s effort to topple incumbents in Knoxville City Council elections fizzles.

Also: Kelsey turns himself (and his passport) in, Robinson has a court date for her second federal fraud trial, Terry gives the Heimlich maneuver to choking colleague, and Ragan’s revisionist history on Andrew Jackson and the nullification crisis.

As always, access your copy of the TNJ here or subscribe here.

Chamber to offer seminars on trying to comply with conflicting COVID-19 rules

House members attend a floor session in Nashville on Jan. 12, 2021. (Erik Schelzig, Tennessee Journal)

With federal guidance handed down this week requiring companies with 100 employees to ensure their workers are fully vaccinated by Jan. 4, the state Chamber of Commerce is offering seminars on how to try to comply with that rule while trying not to run afoul of a state bill passed in a special legislative session last week to outlaw most vaccine mandates in Tennessee.

One method may be a federal provision allowing regular testing instead of vaccines. The state bill did not address the question of tests.

The Chamber opposes all vaccination, masking, and testing mandates, but businesses still have to try to follow the law.

“We understand that recent federal orders and state legislation can result in confusion and costly litigation,” Chamber CEO Bradley Jackson said in a release. “Employers have to know how to comply.”

Here’s the release from the Chamber:

Nashville, TN The Tennessee Chamber of Commerce & Industry announced it will be hosting a series of free compliance seminars to assist all businesses with navigating compliance of Tennessee‘s newly passed COVID-19 requirements for employers. The essential seminars are intended to assist all employers by providing clarity as they attempt to maintain compliance with both state and federal COVID-19 mandates. “We are working to get the word out across Tennessee to all employers and assist every business that needs guidance to steer through the complexities of both state and federal policies. It is our obligation to ensure all employers understand their requirements under law. We understand that recent federal orders and state legislation can result in confusion and costly litigation. Employers have to know how to comply,” said Chamber President and CEO Bradley Jackson. The Tennessee Chamber has expressed opposition to both federal and state mandates relative to vaccination, masking and testing mandates for businesses. 

The first compliance seminar will be held at 10 AM CST on Tuesday, November 9. The virtual meeting series is free to attend and will have no registration expense or limit. Legal experts will be on hand to step through the complexities of the measures and address questions of employers. This recently enacted legislation could be effective as late as November 13th and Tennessee businesses of all sizes and sectors across our great state who are not in compliance are subject to penalties and litigation exposure. “The compliance curve on this particular mandate is extremely steep. We want to make sure there is no business in Tennessee that doesn’t fully understand their obligations and options.” noted Jackson.

The Tennessee Chamber will be hosting a subsequent seminar on November 17 to focus on the exemption process for qualified employers. In addition a final compliance seminar will take a closer look at expected OSHA emergency rules. 

To register, visit www.tnchamber.org/complianceseminar  

Funk revels in GOP attacks

Nashville District Attorney General Glenn Funk appears undaunted by becoming a target of Republican lawmakers during last week’s special session. The prosecutor’s supporters placed placards at tables at last weekend’s annul state Democratic Party fundraiser touting Funk’s record and reveling in negative comments made about him from GOP figures like Gov. Bill Lee, Senate Speaker Randy McNally, and House Speaker Cameron Sexton.

Republican lawmakers last week passed legislation calling for a special prosecutor to be appointed if a local DA refuses to prosecute certain crimes. Funk has drawn the ire of lawmakers for saying he wouldn’t bring charges for possession of small amounts of marijuana. He’s also said he won’t prosecute a state law requiring businesses owners to post warnings that they allow transgender people to use bathrooms of their choice.

Funk is up for re-election to another eight-year term in August.

Here are images of Funk’s placard:

All hail Tennessee’s new COVID czar, Jason Mumpower

Jason Mumpower presents a report to lawmakers in Nashville on Jan. 30, 2018. At left is then-Senate Majority Leader Mark Norris (R-Collierville). (Erik Schelzig, Tennessee Journal)

Amid heavy pushback from the business and education sectors about Republican lawmakers’ efforts to ban COVID-19 vaccine requirements for employees, the final version of the bill allows companies to apply for waivers in the event their federal funding might be jeopardized by following the new law.

To do so, they will have to submit applications to state Comptroller Jason Mumpower, who is empowered to set his own guidelines for what evidence will have to be handed in to make their case for an exemption.

Mumpower, incidentally, is a former state House Republican leader who is appointed by a joint convention of the General Assembly.

Here’s the language of the provision:

A provision of chapter 2 of this title does not apply to a private business, governmental entity, school, or employer that submits notice in writing to the comptroller of the treasury that compliance with a provision chapter 2 of this title would result in a loss of federal funding, to the extent such an exemption is necessary to conform to federally awarded or amended contracts, subcontracts, or postsecondary grants as a condition to receipt of federal funds. The comptroller of the treasury shall create guidelines as to what information is required in the notice. The comptroller shall review a notice submitted by a private business, governmental entity, school, or employer and, if the comptroller finds that compliance would result in a loss of federal funding, then the comptroller shall notify the private business, governmental entity, school, or employer in writing of its exemption.

Supporters said Mumpower’s office is a logical choice because it already handles a variety of contract issues. Opponents argue that at best the move creates another layer of red tape, and at worst gives lawmakers another chance to meddle in businesses’ internal workings.

Either way, Mumpower was quickly dubbed the COVID Czar.

How they voted: House COVID bill limps across finish line

The House meets at the state Capitol in Nashville on June 1, 2020. (Erik Schelzig, Tennessee Journal)

After much chest-beating and saber-rattling, the House backed off on several provisions of its bill aimed at blocking COVID-19 vaccine and mask requirements. When the final vote was taken at 1:15 a.m. Saturday, the measure received the support of just 57 Republicans — a significant drop from the unanimous 73 who signed on to the petition to hold the the special session.

The House started out with an effort to create a near-universal ban on businesses imposing mask or vaccine mandates on either customers or employees — a rule that would have even extended to people hired to provide home care in private residences. The final version of the bill retained the ability of sports and entertainment venues to require proof of vaccination or a negative test, restored the power of private citizens to set requirements for their homes, and allowed all private businesses to require masks.

Also exempt from the vaccine mandate ban are health care facilities and companies or institutions that can show their federal funding would be imperiled by noncompliance.

The bill does impose a ban on mask mandates at all public (but not private) schools. But the issue has been the subject of litigation ever since Gov. Bill Lee issued an executive order allowing parents to opt their children out of mask mandates. (A separate bill to fine local officials up to $10,000 for ignoring executive orders (as was done in Shelby County and Nashville) failed in the Senate.)

Business groups will be parsing through the final language of the omnibus measure to see whether their concerns about increased litigation and conflicting state and federal rules have been addressed.

Read the Tennessean and Associated Press accounts for the full rundown.

In the end, 57 Republicans and one Democrat, John Mark Windle of Livingston, voted in favor of the bill. Thirteen Democrats and nine Republicans voted against. Nineteen members were either absent or abstained.

Here’s the breakdown:

RepresentativePartyVote
Alexander, RebeccaRAbsent or abstained
Baum, CharlieRNo
Beck, BillDNo
Boyd, ClarkRYes
Bricken, RushRAbsent or abstained
Byrd, DavidRYes
Calfee, KentRYes
Campbell, ScottyRYes
Camper, Karen D.DNo
Carr, DaleRYes
Carringer, MicheleRYes
Casada, GlenRYes
Cepicky, ScottRAbsent or abstained
Chism, JesseDAbsent or abstained
Clemmons, John RayDNo
Cochran, MarkRYes
Cooper, BarbaraDAbsent or abstained
Crawford, JohnRAbsent or abstained
Curcio, Michael G.RNo
Darby, TandyRYes
Dixie, VincentDAbsent or abstained
Doggett, ClayRYes
Eldridge, RickRYes
Faison, JeremyRYes
Farmer, AndrewRYes
Freeman, BobDNo
Gant, Ron M.RYes
Garrett, JohnnyRNo
Gillespie, JohnRYes
Griffey, BruceRYes
Grills, RustyRYes
Hakeem, YusufDAbsent or abstained
Halford, CurtisRYes
Hall, MarkRYes
Hardaway, G. A.DNo
Harris, Torrey C.DNo
Haston, KirkRYes
Hawk, DavidRYes
Hazlewood, PatsyRNo
Helton, EstherRYes
Hicks, GaryRYes
Hicks, TimRYes
Hodges, JasonDNo
Holsclaw, Jr., John B.RYes
Howell, DanRYes
Hulsey, BudRYes
Hurt, ChrisRYes
Jernigan, DarrenDAbsent or abstained
Johnson, CurtisRYes
Johnson, GloriaDNo
Keisling, KellyRYes
Kumar, Sabi ‘Doc’RNo
Lafferty, JustinRYes
Lamar, LondonDNo
Lamberth, WilliamRYes
Leatherwood, TomRYes
Littleton, MaryRYes
Love, Harold M., Jr.DAbsent or abstained
Lynn, SusanRYes
Mannis, EddieRNo
Marsh, PatRYes
McKenzie, SamDAbsent or abstained
Miller, Larry J.DAbsent or abstained
Mitchell, BoDNo
Moody, DebraRYes
Moon, JeromeRAbsent or abstained
Ogles, BrandonRYes
Parkinson, AntonioDAbsent or abstained
Potts, JasonDAbsent or abstained
Powell, JasonDNo
Powers, DennisRYes
Ragan, JohnRYes
Ramsey, BobRAbsent or abstained
Reedy, Jay D.RYes
Rudd, TimRYes
Rudder, IrisRYes
Russell, LowellRYes
Sexton, CameronRYes
Sexton, JerryRAbsent or abstained
Shaw, JohnnyDNo
Sherrell, PaulRYes
Smith, RobinRYes
Sparks, MikeRYes
Stewart, MikeDNo
Terry, BryanRYes
Thompson, DwayneDAbsent or abstained
Todd, ChrisRYes
Towns, Joe, Jr.DAbsent or abstained
Travis, RonRNo
Vaughan, KevinRYes
Vital, GregRYes
Warner, ToddRYes
Weaver, Terri LynnRNo
White, MarkRYes
Whitson, SamRNo
Williams, RyanRYes
Windle, John MarkDYes
Wright, DaveRYes
Zachary, JasonRYes

Tenn. Trucking Association decries GOP bill on COVID-19 rules as ‘anti-business’

The Tennessee Trucking Association is speaking out against the hastily assembled omnibus legislation aimed at trying to dial back COVID-19 mandates.

Senate Majority Leader Jack Johnson (R-Franklin) earlier this week specifically cited a story he had seen about the challenges facing the trucking industry in pursuing the legislation. But state Trucking Association President Dave Huneryager is asking for lawmakers to let them sort it out for themselves.

“We are hopeful that the federal administration will continue to allow trucking companies to manage their own operations, as has been the case over the past 18 months,” he said in the letter. “Whatever the final federal or OSHA rules may be, the trucking industry is a business that operates in interstate commerce and has to follow federal mandates.”

Huneryager also took issue with a plan to extend unemployment benefits to people fired for refusing to get vaccinated.

“We believe this is an anti-business policy and adopting anything like this would provide a reason for employees to draw unemployment compensation instead of working in full-time employment,” he wrote,

Here’s the full letter sent to all members of the General Assembly.

On behalf of the Tennessee Trucking Association and its 500 members that represent one out of every thirteen jobs in Tennessee, I am writing to you about issues that will be considered by the Tennessee General Assembly during the upcoming Special Session. TTA is an organization that has been in existence and active in legislative matters for more than 75 years and our industry is hopeful that you will sincerely consider some of the issues that are of major concern to our members as you proceed during the Special Session.

There have been many rumors circulating for weeks regarding the issues that will be addressed within the framework of the call of the Special Session. There have been numerous newspaper articles and other comments from members of the General Assembly related to issues that directly affect private businesses in Tennessee. Now that the Special Session has been called and legislation is being filed, TTA wanted to reach out to you with its concerns.

Fortunately, for years Tennessee has maintained an excellent reputation as a business-friendly environment, in large part through limited government intervention through laws, regulations, or taxes. The trucking industry is very appreciative that the legislature created this environment. For the past 18 months, the COVID-19 pandemic has presented the trucking industry with operational challenges that have never existed before now. Maintaining a safe working environment and being a key player in the movement of all cargo throughout the United States has been difficult to navigate. At this time, there is a supply chain crisis in this country that has placed an additional burden on the industry. Recruiting and keeping CDL truck drivers has never been more critical than it is now. The federal government is presently considering the imposition of COVID-19 vaccination mandates or weekly testing on all employers who have 100 or more employees.

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Ford concerns about COVID-19 bill referred to lawmakers

The Memphis Regional Megasite.

Ford Motor Co., which just last week received the glowing praise of a vast majority of state lawmakers when they approved an $884 million incentive package for the automaker to build a new plant at the Memphis Regional Megasite, apparently isn’t so thrilled about efforts to outlaw mask and vaccine mandates by private employers.

Word spread around the legislature that Ford had called Gov. Bill Lee to register its complaints. But the governor has famously declined to get involved in the special session, perhaps fearing the very situation that lawmakers now seem to be putting the state in.

Officially, the governor’s office isn’t saying much.

“We have heard from a number of businesses and groups regarding proposals, and we have told them to reach out directly to legislators with their concerns,” said Lee spokeswoman Laine Arnold, adding that other automakers in Tennessee have also raised concerns.

UPDATE: The Tennessee Lookout reports a Ford official sent a text message to senators saying the company worries about being barred from requiring its employees from wearing masks.

Sen. Page Walley, R-Bolivar, alluded to Ford’s concerns in a committee meeting Friday.

“I’m very concerned we don’t adversely impact that with this legislation and what Ford is attempting to achieve and what they say has been critical for them to be able to manage their operations and stay open in other parts of the state with their ability to utilize masking requirements,” the Lookout quoted Walley as saying.

“I’m not going to be comfortable unless we have a plan on how we’re going to address this.”

Here is the GOP’s omnibus anti-COVID 19-restrictions bill

Senate Majority Leader Jack Johnson (R-Franklin) attends a meeting on Oct. 18, 2021. (Erik Schelzig, Tennessee Journal)

Republicans lawmakers are pushing to outlaw COVID-19 vaccine requirements for customers and employees and coming closer to banning mask mandates in schools. Senate Majority Leader Jack Johnson (R-Franklin) in introducing the omnibus amendment acknowledges many elements are “contrary to the tenets we hold sacred” as far as pro-business polices are concerned. But Johnson says current circumstances require a special response.

Here’s the amendment:

AMEND Senate Bill No. 9014 House Bill No. 9077*

by deleting all language after the enacting clause and substituting instead the following:

SECTION 1. Tennessee Code Annotated, is amended by adding the following as a new

title:

Title 14 – COVID-19

Chapter 1 – General Provisions

14-1-101. Definitions.

As used in this title, unless the context otherwise requires:

(1) “Adverse action” means to:

(A) Discriminate against a person by denying the person employment, credit, insurance, access, products, services, or other benefits; or

(B) Discharge, threaten, or otherwise discriminate against an employee in any manner that affects the employee’s employment, including compensation, terms, conditions, locations, rights, immunities, promotions, or privileges;

(2) “Applicant” means a person who has applied for employment with an employer;

(3) “Arising from COVID-19” means caused by or resulting from the actual, alleged, or possible exposure to or contraction of COVID-19, or caused by or resulting from services, treatment, or other actions in response to COVID-19, including, but not limited to:

(A) Implementing policies and procedures to prevent or minimize the spread of COVID-19; however, “arising from COVID-19” does not include implementing policies and procedures that violate this title;

(B) Testing;

(C) Monitoring, collecting, reporting, tracking, tracing, disclosing, or investigating COVID-19 exposure or other COVID-19-related information;

(D) Using, designing, manufacturing, providing, donating, or servicing precautionary, diagnostic, collection, or other health equipment or supplies, such as personal protective equipment;

(E) Closing or partially closing to prevent or minimize the spread of COVID-19;

(F) Delaying or modifying the schedule or performance of any medical procedure; or

(G) Providing services or products in response to government appeal or repurposing operations to address an urgent need for personal protective equipment, sanitation products, or other products necessary to protect the public;

(4) “COVID-19” means the novel coronavirus, SARS-CoV-2, and coronavirus disease 2019, commonly referred to as COVID-19, including any variant of SARS-CoV-2 or COVID-19;

(5) “COVID-19 vaccine” means a substance used to stimulate the production of antibodies and provide protection against COVID-19, prepared from the causative agent of COVID-19, its products, or a synthetic substitute, and treated to act as an antigen without inducing a COVID-19 infection

(6) “Employer” means a person, private business, or governmental entity employing one (1) or more persons within this state;

(7) “Face covering” means a protective covering designed to be worn over the nose and mouth to reduce the spread of COVID-19, but “face covering” does not include an industry required mask;

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Bill targeting prosecutorial discretion has massive loophole

The state Capitol on March 16, 2020. (Erik Schelzig, Tennessee Journal)

House and Senate Republicans are charging ahead with a bill aimed at Nashville District Attorney Glenn Funk for refusing to prosecute certain crimes, like possession of small amounts of marijuana or refusing to post signs warning about transgender people being to use bathrooms of their choosing.

Under the bill advancing Thursday, the courts could be petitioned by the state attorney general to insert a special prosecutor to bring charges in cases where a locally elected prosecutor “categorically” refuses to do so without considering the facts in each case.

Supporters say the bill does nothing to prevent a prosecutor from declining to bring charges in individual cases based on a variety of factors like lack of evidence, a bad police search, or even a plea agreement.

But the legislation doesn’t appear to have clear handle on how the issue could be forced if someone like Funk were to say, “Fine, we won’t categorically rule out prosecutions,” and then promptly decline to bring charges in any of the relevant cases.

The fact is that no prosecutor around the state has the resources to bring charges in every single instance of minor drug possession. And the price tag for requiring them to so would likely be prohibitive. So, Republicans upset that the Democratic district attorney in Nashville is happily thumbing his nose at them want to seek retribution through legislation.

But the likeliest outcome is some slight variations in what he says. Either that, or Funk simply continues to thumb his nose at GOP lawmakers. He is up for re-election in August, after all.