Maybe We Can Sue

by James C. Sherlock

Updated August 30, 3:30 pm

I wrote yesterday about a House of Delegates bill that ultimately was passed by the House Committee for Courts of Justice as House Bill No. 5074 Amendment In the Nature of A Substitute (the bill).  

I wrote of its effects on public officials and owners and managers of private companies for violations of COVID-19 regulations. The bill makes them not just accountable to state and federal regulators, but also personally civilly liable for the slightest violation of any part of the virtually unclimbable wall of applicable regulations. And Virginia has the strictest COVID-19 occupational safety regulations in the nation.

This essay will discuss the ethics of two different original bills and reveal the secretive process by which the final substitute was developed in committee. It will ask the General Assembly to clean up a scandal of its own making.

Some may say this “goes on all the time.” It may, but that does not mean it should.

Code of Virginia Chapter 31. State and Local Government Conflict of Interests Act » Article 1. General Provisions § 2.2-3100. Policy; application; construction.

The General Assembly, recognizing that our system of representative government is dependent in part upon (i) citizen legislative members representing fully the public in the legislative process and (ii) its citizens maintaining the highest trust in their public officers and employees, finds and declares that the citizens are entitled to be assured that the judgment of public officers and employees will be guided by a law that defines and prohibits inappropriate conflicts and requires disclosure of economic interests. 

Inappropriate conflicts for members of the General Assembly delineated in Virginia law do not include writing and voting for bills that will increase members’ own income or are influenced by unlimited campaign donations.

Let us illustrate what is not prohibited with a current example.

The Republican bill

Del.Jason Miyares, R-Virginia Beach, an attorney in private practice in Virginia Beach, introduced in this special session of the General Assembly House Bill 5037.  

It attempted to strike a balance between the activities of regulators and court actions in enforcing violations of the very complex and far reaching COVID-19 related state and federal regulations. 

In recognition of the extraordinary challenges of compliance, HB 5037 was designed to grant immunity from civil law suits to public officials and businesses except in cases of gross negligence or willful misconduct in executing their obligations under COVID-19 regulations. 

HB 5037 would have left most enforcement of the regulations to the regulators, the federal government and the Virginia Department of Labor and Industry, and allowed the courts to deal with only the most egregious violations.

Ogletree Deakins, a large international law firm with offices all over this country assessed the Virginia Emergency Temporary Standard Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19 as follows:

“The emergency standard includes an extensive list of requirements that all employers within VOSH’s jurisdiction must follow, regardless of the level of exposure to COVID-19, and additional requirements for employers based on exposure level. The emergency standard (went) into effect on July 27, 2020.”

Key Takeaways

The standard is comprehensive, and employers—particularly those outside of the healthcare industry—may find compliance to be a challenge.”

HB 5037 would have cost Del. Miyares and his firm potential business, but he thought it was the right thing to do.

The Democratic Bill

Del. Richard C. “Rip” Sullivan, Jr., D-Arlington, is an attorney and a shareholder of Bean, Kinney & Korman, practicing in the area of commercial litigation.

Sullivan introduced House Bill 5074. As introduced it was different in key respects to Miyares’ bill.  He was joined in his bill by Democratic co-sponsors Delegates Willett, D=Henrico; Dawn Adams, D-Richmond, and Mark Sickles. D-Alexandria.

Miyares’ bill offered protections from civil liability for any person who designs, manufactures, labels, or distributes PPE in the absence of gross negligence or willful misconduct. Miyares’ bill relied on the regulators to regulate. Sullivan’s bill ignored regulators and eliminated that protection.

HB 5074 changed Miyares’ bill that required compliance with applicable federal, state, and local laws, policies, procedures, and guidance regarding COVID-19 to add “and the most recent” after the work “applicable” to ensure that suits for violations of new regulations could be filed the instant they took effect.

Mr. Sullivan’s bill also required: 

Every person shall provide, with respect to any premises owned by the person or under the person’s possession, custody, or control, reasonable notice of actions taken by the person for the purpose of reducing the risk of transmission of COVID-19 to individuals present on the premises. No person shall be liable for the failure of any individual not under the control of such person to comply with rules, policies, or guidelines contained in the notice required by this subsection. This subsection shall not apply to premises owned by an individual, other than premises that are used in the operation of a sole proprietorship. 

Delegates Sullivan, Willett, Dawn Adams and Sickles must not have noticed that they have sole proprietors in their districts. Or they think that those constituents won’t find out that they went to great lengths to preserve the right of attorneys to sue them, and them alone: 

  • for failure to provide “reasonable” notice, and 
  • for the actions of persons who work for them who fail to comply with the rules, policies and guidelines under that notice. 

Of course this depends upon whatever a court may find “reasonable” to mean at Del. Sullivan’s billable rate.

The Substitute Bill

Even that language was not supportive enough of lawsuits for whoever wrote the substitute that emerged from House committee and was passed. To wit: 

HOUSE BILL NO. 5074 AMENDMENT IN THE NATURE OF A SUBSTITUTE (Proposed by the House Committee for Courts of Justice on August 26, 2020) (Patron Prior to Substitute––Delegate Sullivan)

That bill required the defendant in any suit to bear the burden of “proving entitlement to the immunity provided herein.”

Finally, in the substitute bill:

The provisions of this act do not create a defense to liability in any administrative proceeding or civil action brought to enforce the provisions of the COVID-19 Emergency Temporary Standard or any COVID-19 Permanent Standard, whichever is then in effect.

So the bill does not provide protection from civil suit brought on the basis of the most stringent regulations in the nation.  

The substitute HB 5074, in effect, provides no protections from civil liability to anyone.  So one has to ask “why bother?”

The bill passed by the yeas of all the Democrats and over the nays of all Republicans on the House Committee for Courts of Justice. 

the money

Look here for the contributions by the legal industry to the Democratic members of the House Committee for Courts of Justice and how many of them are attorneys in their private lives.

the outcome

The bill leaves employers, including college presidents and school superintendents, open to lawsuits for any alleged violation of government standards, no matter how inconsequential or as a practical matter perhaps unexecutable, as was judged by Ogletree Deakins. 

We citizens are left to guess who the author(s) of that substitute bill might be. And who might have suggested the changes. And what lobbyists were involved in gutting the original protections in Miyares’ bill.  

What we do know is that absent direct extortion or bribery, which excludes Virginia’s unlimited campaign contributions, the General Assembly is not bound by ethics considerations. Some don’t need the threat of sanctions to do what is right. Some do.

Is it out of bounds to ask a General Assembly that “recognizes that our system of representative government is dependent in part upon (i) citizen legislative members representing fully the public in the legislative process and (ii) its citizens maintaining the highest trust in their public officers”

  • to reassess the ethics and transparency rules that govern it and
  • to put limits on campaign donations?

If they can ignore the fate of House Bill 5037 and the path to passage of HB 5074, the answer is apparently yes, it is out of bounds to ask.  

Maybe we can sue.