House Rules Committee

October 8, 2021


Eaves [00:00:01] We’re here to consider Representative Wardlaw’s motion to appeal the ruling of the speaker on the germaneness of, I believe, Senate Bill 741. Representative Wardlaw, you’re recognized to present your motion. 


Wardlaw [00:00:14] Thank you, Mr. Chair. Yesterday in Public Health Committee, Alan McVey came to the committee and he testified with a financial impact that he didn’t think funds could be used for this purpose. On the floor today, we heard the word ‘may.’ I’ve asked Alan to come today to provide testimony on the committee to clarify those terms that were used in Public Health yesterday. If you follow along with me to the second page of the bill to line 12, it almost looks like they inserted this paragraph in the bill just to make it germane on the face value, which is what the speaker has to make his ruling on. It says the Department of Finance may establish a grant program, which means they may or may not establish a grant program for COVID relief funds to be received under the American Rescue Plan Act of 2021 to provide restitution. Anytime we provide restitution, and I’m not a lawyer, but I’m sure we got plenty of them in the room that would want to talk to this. But anytime you provide restitution, it’s normally a criminal act. This whole bill sets up a civil action, not a criminal action. So if you look at that paragraph, there’s multiple things there that do not play in to the resolution in which we’re here. We are here to take up COVID relief funds. We are here to take up redistricting, which we have handled. And that is my point of my motion that this bill is not germane. This sentence was stuck in here solely to get it through the process, and it does not in any way ever intend to spend any COVID relief funds. And with that, I’ll turn it over to Alan with your indulgence to clarify those terms. 


Eaves [00:01:55] Thank you, Representative. Sir, if you would, just go ahead and introduce yourself for the record, and then you can begin your testimony. 


McVey [00:02:01] Thank you, Mr. Chairman. I’m Alan McVey. I represent the Department of Finance Administration as chief of staff. We were asked to review the Senate Bill 731, and we have had a consultant in place for some time. We hired with the support of the Legislature, CTH and Haggerty Consultings to, they provided an extremely valuable service to us, the state, with respect to the CARES Act, and we’ve continued that relationship. The contract for CTH and Haggerty to also review the American Rescue Plan Act. So it is– based on the review of CTH and Haggerty, the Department of Finance and Administration has determined that it is not an eligible activity to use American Rescue Plan funds for this purpose. 


Eaves [00:02:59] All right. Thank you, sir. 


Wardlaw [00:03:00] We’d be glad to take any questions from the committee, Mr. Chair.


Eaves [00:03:03] Members, if you have any questions of either Representative Wardlaw or Mr. McVeigh? All right. Seeing no questions, thank you for your testimony. We do have several people signed up to speak for and against this motion. First on the list is– I can’t read the last name– Laura or Lana from Family and Arkansas for the bill. Yep, yep, yep, yep. Ma’am, you’re recognized to go ahead and speak. And you have to speak on the motion about the german ness of the, of the–


Speaker 4 [00:03:41] The germanness. OK. And not to the, the–


Eaves [00:03:44] We’re not debating the bill. We’re just debating the motion. The motion is that we’re appealing the speaker’s ruling that the bill was germane to the resolution that we passed early on. So if you’ll keep your remarks based on the germaneness or lack thereof of this particular item. 


Speaker 4 [00:04:00] Yes, sir. Yesterday in the health committee, it was very clearly testified by multiple people that the reason it was germane was the fact that you have many people being put out of work currently and the fund was being set up to, hopefully, only partially put them in a situation of wholeness, not full wholeness, like not to to pay all their mortgage, not you to like fool unemployment, like, like a cap on on top of their unemployment or any of those things. May or may not, like you all are stuck on the may. And I understand consultants were hired. And one of the things that were discussed in that committee, as well, is consultants have been wrong time and time again for you all. You all have hired them, fired them, hired new ones because you didn’t like the outcomes where they were wrong in their interpretation of wording. So very clearly the word may also means may not. It means it can be used based on, based on the ARPA funds and the law. So as long as the law is written correctly, then it’s not in conflict with the ARPA funds, and therefore it would be germane. So I’m not sure how you all could say it would not be germane. And I mean, I really, truly would like you to to ask me. And I would or clarify how it would not be germane because that’s, as families and friends that I know that are losing their jobs. I’m not sure how their livelihoods are not germane with this bill. 


Eaves [00:06:04] Ma’am, we’re not here to discuss whether their livelihood is germane. That’s not the issue. Our issue is can the American Rescue Plan funds be used for this purpose at DF and A. That is the question of whether or not it is germane. 


Speaker 4 [00:06:16] But, but it’s based on the word may. And therefore you are saying may means only may not. That’s what your consultant is saying. The– you guys said you hired the consultant. The gentleman sitting here, the gentleman sitting here, said that he, that he had read the ARPA funding rules and said that it may not be used. That’s the way that they interpreted it. The word may does not just automatically assume not. You can’t just insert another word. That’s not how the language works. That’s not the English– the English language doesn’t just insert a new word. So like you can’t just insert not in there to fit someone’s wants just because they don’t agree with the way a law is written, they can’t just decide that it doesn’t work. Yes, ma’am. 


Eaves [00:07:24] Would you take questions? 


[00:07:25] Yes, of course. 


Eaves [00:07:26] Representative Gray, you’re recognized. 


Gray [00:07:28] Thank you, Mr. Chair. And that’s– you know, I went to the well and testified because there were two different wordings in the language here. But do you not agree that tDFA just sat at the end of the table and said that it could not be used? 


Speaker 4 [00:07:40] That, and that’s my argument. They said it could not be used based on their consultant. And they’re saying, they’re saying, based on the word may, they’re interpreting it to mean may not. 


Gray [00:07:53] I disagree with that’s what the testimony was at the end of the table. The may– if I could, Mr. Chair, a little indulgence. The may was in the wording of the DFA fiscal impact. And the may, I believe, was used to say it may not. But it doesn’t matter what the wording was at the end of the day, if what our consultant says, which is what we’ll follow, or else what’s the point in even hiring a consultant if we’re not going to follow their recommendations? You know, they do this nationwide for lots of ARPA clients. When they sit at the end of the table and say it is not allowed, I think we’re– it’s a pun on words of a statement they put out yesterday. Thank you, Mr. Chair. 


Speaker 4 [00:08:35] Well, so what I would, I would say in return of that is once again, how many times have, has Arkansas or even these other states fired consultants based on the fact that they were wrong in their interpretation and hired someone else based on even other states’ findings to align with the way it was supposed to be interpreted? That, just because you don’t like the wording of something because you don’t want the fundings to be used that way doesn’t make their interpretation correct. DFA doesn’t want it being used for this right, for, for this, for, for this use, so they are choosing to interpret it that way. 


Eaves [00:09:27] Thank you. Rep. Vaught, you have a question. You’re recognized. 


Vaught [00:09:30] Thank you, Mr. Chair. So I agree with Representative Gray. Their wording– it’s wording issues. So if my child asked for ice cream for breakfast and I say you may not have it, does that still mean that they may have it? 


[00:09:49] May– actually, when, when parenting– I have eight children. If I am absolute about my answer, I say you cannot have ice cream for breakfast. I don’t say you may not have ice cream for breakfast. It is absolute. No, you cannot have ice cream for breakfast. That is a ridiculous ask. You can have yogurt with your granola. That is great. But for dessert, you can have a parfait and that can be used with ice cream. 


Vaught [00:10:16] So if I say may not, my child can still go to the refrigerator and get it because I didn’t say can’t. 


[00:10:23] No,  what they can do is say for clar– mom, since you said may– no, I have eight children. You don’t think I deal with this on a regular basis? I deal with this on a regular basis. 


Vaught [00:10:34] I have children, too. 


[00:10:35] Well, that’s fine. But don’t ask me a question as a parent and then don’t ask and expect me to rebut.


Eaves [00:10:41] Ma’am, let’s focus on what we’re talking about here. 


[00:10:43] Well, I am, but she posited a question based on parenting. So I’m, I’m, I’m just responding. 


Vaught [00:10:50] The question’s on the wording. 


[00:10:52] But it’s based on wording as a parent. So if– yes, ma’am, it is– if they ask that question and they and they ask that question, even when I taught in school, if a student asked that question, may, they, and they have asked for clarification, I would say when they could and when they could not. Because it’s all based on clarification, not based on absolute. A can and cannot is absolute. A may and may not as based on clarification. 


Eaves [00:11:26] Rep. Gray, you’re recognized for a question. 


Gray [00:11:28] Thank you, Mr. Chair. And I’ve heard you say that the FDA doesn’t want to use the ARPA funds for this. I don’t disagree with that. They didn’t want to use the ARPA funds for Representative Josh Bryant’s bill either, but they didn’t come back in the fiscal statement and say that it was not allowed. So I think, you know, your point saying that they’re going to find a way to not pay for it if they don’t want to, they didn’t do that on the bill that I voted yes for earlier in the week. Can you explain why you think they would find a way to not pay for it in one instance when they said it was allowed in another instance? 


[00:12:02] I would have to pull that bill up in front of me again. I mean, I’ve been here all week like you all have, so it’s been a very long and exhausting week. I won’t deny that. So I would have to look at exactly what that wording was and on differences. But it could purely be based on words. I mean wording matters. We can all sit here and agree on that. I mean, if it, if it had the word may in there, once again, may is a clarification based word. So I mean, that, and that’s all I’m saying is every single time you use that word, you’re basing on clarification. 


Eaves [00:12:40] Members, any other questions? Ma’am, if I’m not mistaken, and we’re certainly trying to keep on track here about whether or not this is germane, but the federal guidelines say the funds may not be used for this purpose. That is specifically spelled out in this bill. That’s what we’re trying to figure out, whether or not the bill is germane based on that language and then the language of the federal guidelines. Have you read the federal guidelines? 


[00:13:03] I have. The federal guidelines says they cannot be used if they get fired for refusing the vaccination, if I remember correctly. That they wouldn’t be being fired for not being vaccinated in this bill. This bill is written for a right to privacy, which means you just can’t ask. If you can’t ask the, then you just can’t ask. So there, there is no being fired or being hired or anything based on COVID 19 vaccination status. 


Eaves [00:13:34] Thank you. Members, any other questions? Thank you for coming down and thank you for your testimony. 


[00:13:38] Thank you, sir. 


Eaves [00:13:40] The next on the list against is Ray Lehman, Friends of Arkansas. 


Lehman [00:13:46] My comments were made. I’ll pass. 


Eaves [00:13:49] Yes, sir. Thank you. We have– yeah, thank you. Jackie Martin. Jackie Martin, you’re with Convention of States. You can begin your testimony once you get seated. Make sure your button’s pushed. 


Martin [00:14:13] Thank you. My name is Jackie Martin. I am state director for Convention of States. And as I’ve testified last week and this week, my testimony hasn’t changed. Now as to the germaneness, not only am I state director for Conventional of States, but I’m an elected official as a JP in Cleburne County, and I deal with language quite often in our ordinances. If you use the word shall, I interpret that to mean you will do it. May is more open ended. If we’re going to talk about language here, that’s my interpretation of how you use specific words when you’re saying or directing a agency or department to do specific things. The germaneness issue here is obviously on words from the questions I’ve already heard from members of the committee. However, I would like to say this also. It is rather disturbing to sit among other legislators in the audience and with members of employees of the state who make comments like, man, I’d rather be somewhere else like on the lake than here, when people’s lives are in the balance. Now, whether that statement is germane or not, I’ll leave that up to your interpretation. 


Eaves [00:15:47] Thank you. 


Martin [00:15:48] But you ask us to have decorum. I ask you to have decorum as well because we’re not playing games here. And the germaneness is on the language, obviously. So may to me leaves it wide open as to interpretation as to whether or not FDA is directed to create a grant program for restitution of someone who has been discriminated against by their employer by choosing to ask whether or not they’ve had the vaccine. 


Eaves [00:16:28] Thank you. Members, any questions? Thank you, ma’am. We have next on the list Alan McVey, DFA. Did you want to come back up or have you already– you’re OK? Tonya Yielding. Ma’am, if you would, just please introduce yourself for the record and then you can begin your testimony. 


Yielding [00:16:53] Tanya Yielding. I’m just here on my behalf. And this is ridiculous what’s going on here, what I have witnessed. All this football playing, it’s like watching some bullies on a elementary playground. And I do not mean that disrespectfully and I certainly think that you all can agree. But the germaneness of this issue is, it’s obvious, as my friend Lavina said, the word may can be used in many different ways. And I’m very, very stressed. I’m sure you can see that and I’m sure we all are. But you guys, I mean, people’s lives are on the line here. Something has to be done. Someone has to take that football and make that goal. And I just ask that you that you listen to God. We all sat in there and prayed, and I hope that he touches your heart deeper than he ever has before– 


Gray [00:17:52] Point of order. 


Eaves [00:17:52]  Rep. Gray, what’s your point? 


Gray [00:17:56] My point is that we are not– she is not discussing the germaneness of the bill, and that is what we are here for today. 


Eaves [00:18:04] Ma’am, if you would, just keep your remarks based solely on whether or not we are talking about the germaneness of the bill. 


Yielding [00:18:09] And it is germane. It is absolutely. And if the funds need to go where they need to go, then they will go there. You know it, and I know it. 


Eaves [00:18:19] Despite the fact the federal guidelines say they may not be used specifically for this purpose? We’re trying to get it right. I promise you. No one’s playing games. No one’s trying to spike the football. We’re all tired. We’re as frustrated as you are, I promise you that. We just want to make sure that we get it right. That’s what our job is, and that’s what we’re here to do. 


Yielding [00:18:38] The right thing to do would be to pass this bill. 


Eaves [00:18:42] Thank you for your testimony. 


Yielding [00:18:43] Yes, sir. 


Eaves [00:18:50] Representative Slape, you’re recognized. Vice-Chair Slape, excuse me. Members, that is the last person signed up to speak for or against the motion. Rep Bryant? OK. Hang tight. We do have another sign up sheet. Just hold tight for a second. Thank you, Representative Bryant. All right, Wayne Beech. Mr Beech, go and introduce yourself for the record, then you’re recognized to begin your testimony. 


Beech [00:20:14] Hi, I’m Wayne Beech. I can– I’m a forensic engineer and also I served as an expert witness and consultant. And I know that this thing, we have one consultant that has made an opinion. And if you’ve ever been in a courtroom, both sides always have their own consultants and they have their own opinions. And I’ve seen this happen a lot. What if– we’re deciding over whether this is germane or not, I’m wondering, how come we don’t have the other side opinions and a consultant rather than just one side? This is, this is, I can tell you, just like the redistricting stuff. This is all going to go to court, whether for it or against it. It’s still going to go to court. So I would recommend that you probably get another opinion from another perspective and have them defend it and look at those documents and that wording. Or you just wait and just let the courts and just go ahead and pass this bill. It’s all about perception. Are you going to represent the people? Or are you going to represent an entity? This is one of the things that I hear about companies. The companies are actually entities. They’re not individuals. 


Eaves [00:21:42] Mr. Beech, please keep your remarks based on whether or not this bill is germane. 


Beech [00:21:44] I will. 


Eaves [00:21:45] I know it’s easy to get off topic. 


Beech [00:21:46] I agree. I’m sorry. 


Eaves [00:21:48] That’s OK. I understand. 


Beech [00:21:48] But I think the germaneness of it is that we really need to have another opinion to look at this, look at the wording — if they both agree, hey, we’re no, no problem. That’s it. That’s all I have. Thank you. 


Eaves [00:22:03] Members, any questions of Mr. Beech? Thank you, Mr. Beech. And last on the list, Representative Bryant. Rep. Bryant, you are recognized. 


Bryant [00:22:21] Thank you, Mr. Chair. Committee, I know we, we kind of got to watch a rollercoaster last, last week on these issues. I’d like to remind those that were paying attention down to the city, Senate end when they were addressing the same issue as far as the germaneness of all their bills in relation to redistricting. And I recall that Senator Hickey came in kind of last minute, waving a stack of papers saying that we’ve hired a consultant, because the assumption is made that the, the interim final rules from the Treasury Department on ARPA  funds are just, they’re going to be, they’re going to be thick. So we hire a consultant to tell us where we’re wrong and when we’re right. So he came in with this, with the paper and said, we can’t use these funds for testing. They may not be used for testing. So even these bills that look good aren’t good. And then a few days later, DFA’s statement shows up on these Senate bills, and I’d like to read the bottom of that page. The state of Arkansas retained a consultant, CTEH Haggerty, to advise the state on the use of, of distribution of ARPA phones. The consultant has advised that the use of ARPA funds to cover COVID testing for an employee as required by Senate Bill 739, but not covered by the employees would be an eligible use of the funds. So I’m not going to say what Senator Hickey held in his hands was, was it. I don’t know the intent, but he said, our consultant said they may not be used and then DFA’s statement comes out and says they can be used. 


Eaves [00:23:58] [00:23:58]You’re not talking about this, this particular bill though, right? You’re not talking about Senate Bill 741? [


Bryant [00:24:05] [00:24:05]On Senate Bill 739. I think the intent of the speaker was to, was to say that in accordance with the concurrent resolution 1015, the funds are available and we hired a consultant and the consultant as my, in my demonstration, can be wrong. We’re moving at a really fast pace, so I would like to see that the concurrence of the speaker’s decision be upheld. Thank you. 


Eaves [00:24:36] Members, any questions? Members, we have no one else signed up. Representative Wardlaw, hang on just one second. We have a question from Rep. Ferguson. 


Ferguson [00:24:57]Thank you, Mr. Chair. Question to Rep. Bryant. He left. Representative Bryant, are you talking about the bill that you introduced today, that Senate bill? Are you saying that what you’re reading, that the– you’re not talking about that one? 


Bryant [00:25:18] No, sir. 


Ferguson [00:25:18] You’re talking about another bill. I just wanted to be sure.


Bryant [00:25:20] Yes. Thank you. 


Eaves [00:25:22] Thank you, representative. Members, no one else signed up to speak for or against the bill. Representative Wardlaw, you’re recognized to close for your motion, rather. 


Wardlaw [00:25:34] Thank you, Mr. Chair. Committee, yesterday in committee, the sponsor, the Senate sponsor of this bill said he inserted that sentence because he thought it made it germane. If you look back, he filed a previous bill, Senate Bill 719. And on that bill, same paragraph, says the Department of Finance Administration may establish a grant program to distribute COVID 19 relief funds, doesn’t even refer to the ARP money. He went back. He sticks ARP money in there, so he gets it through on face value. The speaker and the president pro tem have to make the decision on face value, meaning if the words are in there, they have to let it go. DFA is our guidance on all of our funding. DFA came to committee. They said, you may not use it. He came here today and clarified that statement said you could not use it. This bill was filed with this sentence in there so that we could hear it on face value. It cannot be germane because it cannot be used. So with that, I’d appreciate a good vote. Thank you, Mr. Chair. 


Eaves [00:26:42] All right, members. We’re going to take a vote now on Representative Wardlaw’s motion. Is there any discussion on that motion? Yeah. So Representative Wardlaw, would you mind restating your motion and we’ll get to what a yes vote means and what a no vote means. 


Wardlaw [00:27:19] I don’t know what we would do without Buddy. The motion is whether this bill is germane or not. So if you vote yes, the affirmative vote would be that the bill is germane. If you vote no, you are voting that you agree the bill is not germane. Thank you, Mr. Chair. 


Eaves [00:27:37] Representative Dalby, do you have a– OK. OK. Representative, one more time. What a yes vote means, what a no vote means, so we’re all clear on what we’re doing here. 


Wardlaw [00:27:46] A yes vote is that the bill is germane. A no vote is the bill is not germane. 


Eaves [00:27:54] And that’s because the speaker had declared the bill to be germane. All right. All of those in favor of Representative Wardlaw’s motion, signify by saying aye. All those opposed signify by saying no. The no’s have it. We will take this report to the House, take it up there. We are adjourned.