REOPEN NC – MAY 5, 2020 – RALEIGH, NORTH CAROLINA
Glen Bradley – On the Contents of House Bill 1043 & Senate Bill 704
Thank you to all who came to the ReOpen NC event May 5th in Raleigh – as well as those who participated virtually via the Internet – and special thanks to the event organizers for making this critically important event happen. These are unprecedented times for both the United States and for North Carolina, and I am deeply thankful to God on High to see so much passion and interest.
The speech I gave at the event was a shortened version of the following material. There is so much information and detail to cover on just the legislative parts of our current situation, and I wanted to make sure this information got to you for your consideration. I humbly submit this long version of my speech content, which has been lightly edited for your reading and reference.
My name is Glen Bradley. I served in the North Carolina State House out of Franklin County from 2011 to 2012, and managed to offend literally every soul in the government in Raleigh so good that they literally removed the District I was serving right out from under me.
When you stand on the House floor every day and call out both parties on their nonsense, they get pretty motivated to make sure you go away and don’t come back.
In my brief career in the North Carolina State House, I possibly had the most solitary ‘no’ votes in the history of the State Legislature, but that’s only because I actually read all those bills. Most of those solitary ‘no’ votes were not based on the lawmaker’s intent so much as how those laws could and would be abused.
I used to say every day that anything and everything the government can do to abuse a law and inflict power over people, they would do to abuse the law and inflict power over people. The best intentions usually led to the worst bills. As they say – the road to Hades is paved with good intentions.
Just like in Congress – most of the worst legislation came across either in the dead of the night, at a weird and unusual time, or in the body of gigantic bills that no one had time to read. It should be no surprise that Senate Bill 704 is no exception.
I hope to cover the good, the bad, and the ugly as fairly as I possibly can here. I spent from 8 PM until 10 AM the morning before this event poring over every line of both the Senate and House bills [SB 704 and HB 1043] to make absolutely certain that I got it right. So with no further ado, let’s get right into the meat of this.
HOUSE BILL 1043
The conference version of House Bill 1043 that was signed into law is actually quite benign. It exclusively allocates an incredible sum of federal taxpayer passthrough dollars from the Congressional COVID-19 Relief CARES Act. There are extensive reporting and audit requirements.
At the top of page 3 it explicitly notes that these allocations do not qualify as ‘appropriations’ for the purposes of Article 5, Section 7 of the NC State Constitution because they are funded from federal appropriations, and these funds are placed into a State Coronavirus Relief Reserve and a State Coronavirus Relief Fund.
Allocations Total & Pork Spending
Pages 4 through 17 allocate $1.43 Billion, while page 18 allocates $1.24 Billion for a grand total of $2.66 Billion of federal CARES Act money. Had the North Carolina General Assembly not specified the spending, then Governor Cooper would have spent it as he saw fit.
I do take issue with how some of these CARES Act funds are allocated. For instance, $5 Million is spent on State marketing (i.e. ‘propaganda’). Nearly a million dollars for the Institute for Museum and Library Sciences appears to have nothing to do with the coronavirus, and why in the world does the National Endowment for the Arts need half a million dollars of North Carolina’s federal coronavirus relief funds?
But the bottom line here is that $6 Million worth of pork out of $2.6 Billion in spending is 0.2% of the funds allocated is incredibly disciplined – and certainly far better than Governor Cooper would have done with little or no oversight.
Contact Tracing & DHHS Reporting Requirements
One of the most controversial allocations in this bill is from page 13, line item 35, allocating $25 Million to DHHS for testing, contact tracing, and trends analysis.
We have heard that Governor Cooper has called for millions of dollars to hire contact tracers – basically a cadre of ‘virus bounty hunters’ to track down everybody a person who has tested positive [for COVID-19] has come into contact with. Per page 23 of the bill, the allocation of these funds to the DHHS is contingent on the establishment of certain measures of transparency that we have been demanding from the Executive Branch. Specifically:
All public testing is required to report both positive and negative test results to DHHS, and DHHS is required to post both positive and negative totals on the COVID-19 Dashboard on the State DHHS website.
All testing contractors must be reported on the website, along with the cost per test for each contractor.
Recovery rates must be reported on the DHHS website, resolving a long standing complaint.
All reported COVID-19 hospital discharges and deaths will be required to be reported with any underlying conditions or comorbidities, along with specifying whether any deaths with comorbidities are being reported as caused by COVID-19 exclusively, resolving another long standing complaint.
So basically, the piece that Governor Cooper wanted the most – the allocation of funds for Contact Tracing – the General Assembly has conditioned the release of those funds on resolving several long–standing complaints we have all had with regards to the reporting of testing, infections, and deaths during this time.
That’s it for the conference version of House Bill 1043. As you can see it is far, far more benign than when it was introduced. The good news – I think this is a clear indication that your voices are being heard! The bad news – a lot of the stuff we had been complaining about was transferred into the Senate Bill, Senate Bill 704. As promised, I will cover the good, the bad, and the ugly of Senate Bill 704.
SENATE BILL 704
Interest is waived for deferred tax payments for corporate, franchise, and individual State tax deferred payments. So if you cannot pay your taxes on time because of the economic impact and have to set up deferred payments, those payments will not generate interest. The statute of limitations to seek tax refunds is extended by three months to July 15th. Any tax disputes must now be filed by July 15th instead of April 1st.
Unemployment Insurance is given flexibility to cover those affected by layoffs or work reduction or who have gotten sick with COVID-19.
Extending the deadlines for DMV requirements is definitely a good thing.
The educational requirement for End-of-Grade Testing has been waived. Many have complained for years that standardized testing subverts education, and exchanges real learning for rote memorization to simply pass tests rather than gaining real knowledge or understanding. While this measure is only temporary, it is good to see the State acknowledges that End-of-Grade Testing is not actually ‘essential.’
Parents may request the administration of end of grade testing specifically to qualify their children for advanced placement.
On Health Care
The State is establishing a strategic stockpile of Personal Protective Equipment (PPE) and infectious disease testing supplies to prevent the occurrence of any shortages in critical equipment and supplies in the event of any infectious disease emergencies in the future.
North Carolina providers will be prioritized when issuing State Contracts to private companies. With as bad as our economy has been hit, it will be good to keep as much of that money in the State of North Carolina as possible.
Dispensing prescription drugs at facilities other than pharmacies or hospitals. Some places, like nursing homes and satellite care facilities have the need to dispense drugs but no pharmacy on hand to perform that function. This relaxation of regulations is a good thing.
Reporting to DHHS both positive and negative test results. A major complaint we have all had in North Carolina is that while positive test results [for COVID-19] have been reported, we could only infer how many people that had been tested tested negative. This bill will require the reporting to DHHS of both positive and negative test results which resolves a long standing complaint.
Expanding the availability of telemedicine is a good thing. Certain parts of health care are extremely over regulated and this is definitely one of those things. Relaxing regulations to permit the expansion of telemedicine is something that should have been done long ago.
The now infamous section 3D.3 is not really as bad as it sounds on first blush. I wouldn’t exactly call it ‘good’ either, so I’m listing it under ‘indifferent.’ This section covers prioritizing pharmacists for receiving any potential COVID-19 vaccines, and authorizing pharmacists to administer vaccines ahead of a general rollout so that they can face the general public and administer these vaccines.
It also grants transactional immunity to pharmacists for administering the vaccines based on the best data they are given. The intent of the legislature was that if people are seriously harmed they should sue the vaccine manufacturers – but apparently no one was around to inform them that vaccine manufactures were granted immunity by Congress back in the 80’s. This aspect of Section 3D.3, subparagraph (d), I’ll cover later under ‘ugly.’
Emergency video Notarization and witnessing. We do live in a digital society, and it is definitely time to start moving towards the acceptance of telepresence technologies in our State. The adoption of telepresence technologies for the performance of official duties may ultimately have a positive effect for the evolution and adoption of these technologies, as well as making our government and society operate more efficiently.
However, there remains the potential for abuse here, and particularly notaries public and witnesses will need to be educated beyond what this bill required to ensure that their notary or witness has the integrity we have traditionally required of these functions.
While the bugs will get worked out over time, some people will absolutely get hurt or defrauded while we are working this out. This should have been developed organically over time and expertise, and not just shoved in in an emergency fashion. This was established in a reckless fashion, and while it will ultimately be beneficial to society, it was a mistake to rush it. There will be problems and abuses of this law. People will get taken advantage of.
No section of this bill addresses the changes in Unemployment Insurance covers self–employed independent contractors. This is a major broken promise that will affect millions of North Carolinians as we have transferred into the ‘gig economy.’
Annual report cards for schools are waived. Although these are unusual circumstances, it is still needful for parents to have a strong assessment of the quality of their children’s schools in order to make certain critical decisions affecting the education of their children. Report cards for schools is an important tool for those parents, and the coronavirus is no reason to skip school quality reporting this year.
The State will not identify low performing schools based on data for the 2019-20 school year, however any schools identified as low performing from 2018-2019 data will continue to be identified as low performing this year. This is neither fair to those schools who have dramatically improved their performance, nor for those parents who rely on this data to be accurate when making decisions on how their children should be educated.
School principals are given a lot more authority and a lot less oversight to determine whether third grade students should be held back or promoted due to the level of their reading ability. I worry that eliminating oversight and granting broad authority to principals to make unilateral determinations will in some cases lead to poor decisions based on personality conflicts more than just reading performance.
On Health Care
On page 25 of this 70 page bill, we find transactional immunity from liability for any and all Health Care providers providing disaster or emergency health care. This piece calls itself, “The Emergency or Disaster Treatment Protection Act,” and it basically provides immunity from any liability lawsuits covering acts errors or omissions, with the exception of gross negligence, reckless misconduct, or the intentional infliction of harm.
Here is the problem – medical malpractice is one of the biggest causes of death for all persons interacting with the health care system. Very little of all malpractice is covered under “gross negligence, reckless misconduct, or the intentional infliction of harm.”
While it is true that tort reform is necessary to lower the cost of health care in the United States, granting blanket immunity for any health care provider committing acts errors or omissions that do serious harm to a patient is not the way to do it.
The free market provides a remedy for mistakes that performs the function of making mistakes less likely. If a mistake is expensive, then the provider is likely to be more careful to avoid making mistakes. If a mistake costs nothing, then the provider is less likely to be as careful as they should be under the Hippocratic Oath.
Have we gone too far as a litigious society to sue everyone and everything for any perceived wrong? Yes, absolutely. But providing blanket immunity is not the solution. This will make the problem worse.
On the Department of Justice
The three-year fingerprinting requirement for child care providers, foster parents, and people adopting children is temporarily waived for the duration of this crisis. The intent of the legislators is that this should only apply to people who have been previously fingerprinted, and require fingerprints to be taken every three years to retain their licenses to provide child care and foster care. Their thinking was that because the police are refusing to take fingerprints due to social distancing, these people would not be able to perform their functions. I have several problems with this section.
It does not exempt first–time employees from the waiver, and goes even further to provide first-time employees with a “provisional qualification status” that could allow people who have never been fingerprinted to get hired on, take foster children or adopt.
Without the fingerprinting requirement, any stolen identity could allow child traffickers full access to child care facilities, foster children, or even to adopt. A lot of people do not understand that one of the primary sources of child–trafficking is the foster care system – and North Carolina is one of the nations hottest spots for this travesty.
While I understand people who have been fingerprinted in the past should be allowed to continue working rather than suddenly leaving children uncared for, this section of the bill should have directed the police to perform fingerprinting despite the health emergency, or specify that first-time applicants were excepted from this exemption.
This is a poorly-conceived law that opens the door to all manners of horrific child abuse and trafficking.
Masks and hoods for the protection of health. A paragraph was added to North Carolina’s anti-mask law to specifically permit the wear of masks to ensure the physical safety of the wearer or others. Some people were relying on North Carolina’s anti-mask law to prevent Counties and municipalities from instituting a mask requirement.
North Carolina is one of the only States in the Union with an anti-mask law. The KKK, for which it was written, is all but extinct. We should have just repealed the anti-mask law altogether or left it alone. Adding a health care exemption to the anti-mask law is the worst of both worlds. It maintains a despotic authoritarian law on the books while granting a specific exemption that will allow cities or counties to become even more dictatorial in operation.
Schools will not be required to report teacher effectiveness data to the State. This may lead to terrible and ineffective teachers being retained for longer than necessary and handicapping our children with poor quality instruction, and this is absolutely unnecessary.
On Health Care
One piece of the Section 3D.3.(d) grants specific immunity to the State Health Director. The State Health Director is the person we rely on to provide us with solid accurate information. If the buck stops with anybody on these items, it should be the State Health Director. In my opinion, the idea of granting the State Health Director transactional immunity for passing along bad information that could get someone maimed or killed is simply unconscionable.
Waiving the witness requirements for Health Care Powers of Attorney and Do Not Resuscitate orders is absolutely unconscionable. We have established a two witness requirement for these instruments for a reason, and this self-same bill even provides for emergency video witnessing.
Given that this bill actually provides for emergency video witnessing there is no excuse at all to waive the witness requirements for Health Care Powers of Attorney or especially for Do Not Resuscitate orders. People will get hurt by this section. People will die from this section.
While this section does sunset, it explicitly states that instruments established during this time shall remain in effect until revoked. The idea of not needing a witness to establish a DNR order, but then later needing a witness to revoke it is absurd, and should not be tolerated.
On the Department of Justice
Electronic signatures for search warrants. This could have been a good thing, but they clearly did not have anybody involved in the crafting or discussion of this legislation with any technical expertise whatsoever.
The technologies exist for digital signatures that are as good or better than a physical signature, but this bill references none of them. There are also methods of electronic signature that are terrible and fail to main the integrity of the consignees identity.
I have personally experienced North Carolina’s digital signature technologies in the past, and I am not hopeful that they will implement this section correctly. All we can do is hope that the regulators take this section of law and specify hash key encryption or some other validation technology, because just tapping some initials and calling it a digital signature just doesn’t cut it. Unless the regulators choose to specify a serious method for the provision of an electronic signature, it would be far too easy for anyone who wants to, to fake a signature on a warrant.
Transactional immunity for businesses designated as ‘essential.’ If any business is designated as ‘essential’ by Governor Cooper, they are granted liability immunity for any acts errors or omissions performed by that business that leads to the serious harm or death of a person.
Gross negligence, reckless misconduct, or the intentional infliction of harm is excepted from this grant if immunity, but business that have not been designated by the Governor as ‘essential’ have not been granted any such immunity. This is unequal treatment under the rule of law and should not exist in a republican form of government.
Authorizing involuntary commitment orders via telemedicine. SB 704 authorizes the issuance of involuntary commitment orders via video teleconference for both the required first and second consultations. Involuntary commitment is one of the most Soviet-like things we do in the United States. The mere idea of ordering a person into an involuntary mental health commitment over a TV screen from a hundred miles away is appalling and should not be tolerated in a free society.
Releasing communicable disease information and personal health record to law enforcement. On page 44 of this 70 page bill there is a section that authorizes the release of personal health records to law enforcement to identify individuals who have communicable diseases.
The intent is to help police officers do their jobs. The legislator I spoke to on this section told me verbatim that this section was created “to help the police identify who to track down and arrest or quarantine.” The problem is that it does not specify what infectious diseases qualify for this Orwellian treatment, nor does it even touch on the severity. This section could be triggered by a common cold, and it has the force of law.
The legislators did reference the section of the Code of Federal Regulations that covers HIPAA, and felt confident that people carrying out this law will not violate HIPAA. However, your average patrolman barely knows what HIPAA is much less how to abide by it. Referencing a section of federal regulations will not prevent the operation of this provision from violating HIPAA, it just won’t. This section has no sunset.
The reinstatement of Special Obligation Bonds. Special Obligation Bonds, similar to Certificates Of Participation, were a section of NC Statutes that allowed local governments to take on debts that were not authorized by public referendum as the NC State Constitution requires.
The intent of Special Obligation Bonds was to allow local governments to turn over properties, so the idea was that they would not ultimately carry that debt. The reality has been a lot different, and debts for real properties have stayed on the books for a very long time.
A few years ago, this anti-constitutional provision was ‘accidentally’ eliminated from State Law by a bill that specified the deletion of a chapter section where these debt instruments were authorized. Whether the removal was truly accidental or not, the reinstatement of a section of law that blatantly violates our State Constitutional requirement that ANY debts taken on by ANY governments in the State of North Carolina be subjected to a popular referendum should not have been tolerated by a conservative legislature.
That basically covers, in depth, the good, the bad, and the ugly of these two Coronavirus bills, House Bill 1043, and Senate Bill 704. Thank you for bearing with me through this incredibly lengthy and dry coverage of the ton of information necessary to perform that task. There are a few things to like, several things not to like, and a lot that is just awful.
Most of the Legislators who approved this bill absolutely had the best of intentions and wanted nothing more than to do right by the people of North Carolina. I am here to say that good intentions are not enough, and whenever laws are rushed through in an emergency fashion they will not, cannot receive the due diligence that we expect from our North Carolina General Assembly.
There will be, in the months and years to come, a great many unintended consequences from these laws that will do real actual harm to real actual people in the State of North Carolina.
Rather than a legislature that doubles down to consent to Cooper’s illegal and invalid shut down orders, what we needed was a legislature that would do something to deny consent to Cooper’s shut down orders and get North Carolina back to work.
There are people, right now, who are hungry, struggling, who have no idea where their next paycheck will come from, who have no idea where their next meal will come from, and they deserve better than this. Ladies and gentlemen, I am here to tell you that we can, and we should do better.
We stood up in 1776, on the forefront of the birth of our great nation and at the dawn of the great experiment in human liberty in Halifax North Carolina and became the first state on the American Continent to declare independence from British rule and declare the priority of human liberty.
That is why we are called ‘First In Freedom.’ That is why we have April 12th, 1776 on our flag, and that is why America became a free nation with the Declaration of Independence later on July 4th.
We have come a long way from true courage to craven cowardice, and the people of North Carolina are now standing up with one voice to demand an end to fear.
It is time, and past time to reject living in fear, and demand that our representatives actually represent the brave and fearless people of the Great State of North Carolina and declare that enough is enough!
Our State motto is Esse Quam Videri, which means ‘To be rather than to seem.’ Our motto encourages and inspires every one of us to stand with courage and integrity, to say what we mean and to mean what we say – and we mean what we say when:
We demand that Governor Cooper reopen North Carolina now!
We stand up and demand that our legislators reopen North Carolina now!
We stand up with one voice and declare that our judges reopen North Carolina now!
The vast majority of Governor Roy Cooper’s shutdown orders did not have the consent of the Council of State, and is therefore illegal per the Law as recorded in Chapter 166A of the North Carolina General Statutes.
Governor Cooper, end your illegal shutdown orders now, and reopen North Carolina now!
My name is Glen Bradley, and I want to thank you again for allowing me to speak with you at the ReOpenNC event on May 5, 2020. It’s truly been an honor. And thank you to all patriotic North Carolinians for your passion, courage and relentlessness. Semper Fi!