20210521Decision Memo.pdf

DECISION MEMORANDUM 1
DECISION MEMORANDUM

TO: COMMISSIONER KJELLANDER
COMMISSIONER RAPER
COMMISSIONER ANDERSON
COMMISSION SECRETARY
COMMISSION STAFF

FROM: KARL T. KLEIN
DEPUTY ATTORNEY GENERAL

DATE: MAY 20, 2021

SUBJECT: IN RE COVID-19 RESPONSE – CASE NO. GNR-U-20-01.

What would the Commission like to do with its Covid-19 Response order, Order No.
34781, now that public health authorities have relaxed prior safety precautions designed to combat
the Covid-19 pandemic?
BACKGROUND
In early 2020, the Governor declared the Covid-19 pandemic to be an emergency. The
Idaho Department of Health and Welfare (IDHW), Central District Health (CDH), and other public
health authorities then adopted standards to help prevent COVID-19 from spreading. The
Commission, in turn, initiated this docket and issued orders to foster safe practices at the
Commission. The Commission’s latest Covid-response order, Order No. 34781, took effect on
September 17, 2020 and remains in effect today.
In summary, Order No. 34781 (1) encouraged persons to remotely attend the
Commission’s public proceedings; (2) required persons who physically attend public proceedings
to wear masks and/or keep six feet away from others while adhering to CDH’s public health
directives; (3) suspended Rules 61 and 62 of the Commission’s Rules of Procedure to the extent
those rules required persons to physically file copies of pleadings; (4) provided most pleadings,
orders, and notices would be filed and served electronically; and (5) contemplated the order would
continue until it was rescinded, superseded, or amended by the Commission.
Recently, IDHW and CDH relaxed their COVID-19 guidelines.1 The section below
compares these updated guidelines to Order No. 34781.

1 See e.g., Central District Health Lifts Public Health Advisory, May 13, 2021
(https://www.cdhd.idaho.gov/pdfs/News/2021/5-13-21-CDH-Lifts-Public-Health-Advisory.pdf); Idaho Department
DECISION MEMORANDUM 2
ORDER NO. 34781 COMPARED TO UPDATED PUBLIC HEALTH GUIDANCE
1. Remote attendance and electronic filing. The Commission’s order encourages
persons to remotely attend meetings, hearings, and other proceedings, and to file and serve
documents electronically. This seems consistent with the IDHW’s Stage 4 Stay Healthy
Guidelines, which say: “Gatherings of any size are permitted if they adhere to the Physical
Distancing and Sanitation Requirements in Section 4.” Section 4 of the Stage 4 Stay Health
Guidelines specify: “Gathering and event organizers should . . . [h]ost events outdoors, if possible,
and if indoors provide for adequate ventilation. . . .” This provision seems intended to encourage
persons to limit situations involving indoor physical contact. And it seems consistent with the
Commission’s decision to allow persons to physically attend Commission proceedings while
encouraging them to attend remotely and to file and serve documents electronically.2 I recommend
the Commission keep these precautions in place.
2. Masks. The Commission’s order says: “Persons who physically attend . . .
proceedings must, when possible, either: (a) maintain at least six-foot physical distancing from
other persons; or (b) wear a face covering that completely covers the person’s nose and mouth
when others are present and a physical distance of six feet cannot be maintained. We encourage
persons both to maintain six-foot physical distancing and wear a face covering.” The
Commission’s mask requirements do not reference vaccination status. This contrasts with the new
guidance from IDHW and CDH, which say fully vaccinated persons no longer need to wear masks
in non-healthcare settings, while persons who aren’t fully vaccinated should continue to wear
masks. I recommend the Commission replace its mask mandate with an order that informs persons
the Commission intends to follow applicable guidance from public health authorities and that
persons also should follow those guidelines.
3. Distancing. As noted above, the Commission’s order requires persons, when
possible, to maintain six feet of distance from others or wear a mask and encourage persons to do
both. The Commission’s distancing requirement does not reference vaccination status. This is

of Health and Welfare’s Stage 4 Stay Healthy Guidelines, dated May 11, 2021 (https://rebound.idaho.gov/wp-
content/uploads/stage4-stay-healthy-guidelines-051121.pdf); and CDC’s Interim Public Health Recommendations
for Fully Vaccinated People, dated May 13, 2021 (https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-
vaccinated-guidance.html).
2 I understand utilities and parties have appreciated the Commission’s electronic filing options and hope to see those
options continue.

DECISION MEMORANDUM 3
consistent with IDHW’s Stage 4 Stay Healthy Guidelines, which state: “Gatherings of any size are
permitted if they adhere to the Physical Distancing and Sanitation Requirements in Section 4.”
Section 4 of the State’s Guidelines state : “Gathering and event organizers should . . . [p]rovide
for six (6) feet of spacing between guests to the extent possible….” The IDHW’s distancing
guidance, which is directed to “event organizers” rather than to attendees, suggests the
Commission should continue to provide six feet of space between attendees at Commission
proceedings if possible.
The new guidance from CDH differs from the Commission and IDHW statements
because, as with masks, CDH now says fully vaccinated persons no longer need to maintain six
feet of distance between each other.
Given IDHW’s focus on “event organizers” and CDH’s focus on persons by vaccine
status, I recommend the Commission replace its distancing mandate with an order that informs
persons the Commission intends to follow applicable guidance from public health authorities and
that persons also should follow those guidelines. The Commission could continue to arrange its
hearing room and other space to provide attendees with six feet of separation.
COMMISSION DECISION
Does the Commission wish to supersede Order No. 34781 with an order that accounts
for the new guidance from IDHW and CDH? If so, I recommend the Commission’s new order:
(1) Continue to encourage remote attendance and electronic filing and service; and
(2) Regarding masks, distancing, and other public health measures, generally note the
Commission intends to conduct public proceedings under applicable public health guidelines in
effect when a proceeding occurs, and that the Commission expects persons who attend those
proceedings to follow those guidelines.

Karl T. Klein
Deputy Attorney General

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