Apr 01

April 1, 2020 TML Coronavirus Update #13

Posted on April 1, 2020 at 4:30 PM by TML Staff

Urgent Updates

 

Has the governor issued clarification regarding his order from yesterday?

 

Yes, although not in relation to how the order interacts with local orders or whether local orders can be more stringent than the governor’s. Yesterday, the governor issued a new executive order that supersedes his original social distancing order. The Texas Division of Emergency Management today issued further guidance regarding which businesses are essential services. Beyond that, what cities can and cannot do relative to the governor’s order remains unclear. The League is attempting to obtain clarification from the Governor’s office.

 

In yesterday’s action, the governor suspended Section 418.108 of the Texas Government Code (The Texas Disaster Act) and several other laws, some of which are unnamed, “to the extent necessary to ensure that local officials do not impose restrictions inconsistent with this executive order, provided that local officials may enforce this executive order as well as local restrictions that are consistent with this executive order.” Section 418.108 is the core authority for mayors to declare, and city councils to extend, local states of disaster, including movement of persons and occupation of premises.  One thing that seems clear is that a city can at least continue its basic local declaration (which is probably needed to seek future FEMA reimbursement).

 

How can we help the National League of Cities with its Coronavirus efforts on behalf of cities?

 

The National League of Cities (NLC) is working to obtain funding for all cities, regardless of size. To effectively do that, they need data on municipal budgets.

 

NLC, along with the U.S. Conference of Mayors, has prepared a very short, easy-to-complete survey to ascertain how much revenue cities expect to lose, both short- and long term. Please complete the survey by Friday, April 3. Results will be analyzed and shared.

 

What more can be done to ensure that cities under 500,000 population receive direct federal funding to respond to local challenges created by COVID-19?

 

While the Department of Treasury weighs city arguments in favor of allowing cities under 500,000 in population to directly access funding under the Coronavirus Relief Fund created by the CARES Act, NLC is encouraging cities nationwide to urge their congressional delegation to sign onto a letter to House Speaker Nancy Pelosi arguing that federal funding of these cities should be a priority in any future federal relief package. The form letter can be found here

 

Further Updates

 

Has the Department of Labor issued final regulations related to the Families First Coronavirus Response Act (FFCRA)?

 

Yes. This afternoon, the Department issued a 124-page final rule (pending publication) implementing the emergency paid sick leave and expanded family and medical leave provisions of the FFCRA. League staff will review and provide more information in a future update.


Mar 31

March 31, 2020 TML Coronavirus Update #12

Posted on March 31, 2020 at 5:19 PM by TML Staff

Urgent Updates

 

Has the governor issued a new executive order that supersedes his previous social distancing order?

 

Yes. Today the governor issued a new executive order that supersedes his original social distancing order (GA-08). The new order extends through April 30, 2020. Also, he has closed all Texas schools through May 4, 2020, and that date may be extended. 

 

Each city official should read the entire order (linked above), but in summary the order provides that:

 

-Every person in Texas shall, except where necessary to provide or obtain essential services, minimize social gathering and minimize in-person contact with people who are not in the same household.

-Essential services are those defined by TDEM according to the U.S. Department of Homeland Security.

-All Texans should follow the President’s and CDC’s hygiene guidelines.

-All Texans should avoid eating out, but take advantage of carry out and drive-thru restaurants.

-It does not prohibit people from accessing essential services or engaging in essential daily activities, such as going to the grocery store or gas station, providing or obtaining other essential services, visiting parks, hunting or fishing, or engaging in physical activity like jogging or bicycling, so long as the necessary precautions are maintained to reduce the transmission of COVID- 19 and to minimize in-person contact with people who are not in the same household.

-Texans should stay away from nursing homes and similar facilities.

-Schools shall remain temporarily closed to in-person classroom attendance and shall not recommence before May 4, 2020.

 

Does the governor’s new order supersede local (e.g., city and county) orders?

 

Yes, at least partially. It clearly supersedes “any conflicting order issued by local officials in response to the COVD-19 disaster, but only to the extent that such a local order restricts essential services allowed by this executive order or allows gatherings prohibited by this executive order.” That means a city may not define essential services differently than TDEM and the U.S. Department of Homeland Security have, but even their guidance leaves unanswered questions. It appears that the most significant preemptive effect of the new order is to allow religious gatherings conducted in churches, congregations, and houses of worship, so long as appropriate social distancing guidelines are followed.

 

The governor then suspended Section 418.108 of the Texas Government Code (The Texas Disaster Act) and several other laws, some of which are unnamed, “to the extent necessary to ensure that local officials do not impose restrictions inconsistent with this executive order, provided that local officials may enforce this executive order as well as local restrictions that are consistent with this executive order.” Section 418.108 is the core authority for mayors to declare, and city councils to extend, local states of disaster, including movement of persons and occupation of premises.  This suspension would appear to mean that a city’s stay home/work home order is superseded by the order’s edict that “every person in Texas shall, except where necessary to provide or obtain essential services, minimize social gathering and minimize in-person contact with people who are not in the same household.” 

 

League staff will continue to analyze the order and report further in tomorrow’s update.

 

Where do we stand right now with regard to federal and state guidance and orders, including the new order in the question above?

 

The federal government has not “ordered” anything. Instead, President Trump and the Center for Disease Control issued the following guidance, which is in effect through April 30: (1) listen to and follow the direction of your state and local health authorities; (2) if you feel sick, stay home; (3) if someone in your household has tested positive for coronavirus, keep the entire household at home; (4) if you are an older person, stay home and away from other people; (5) if you are a person with a serious underlying health condition putting you at risk, stay home and away from other people; (6) work or engage in schooling from home whenever possible; (7) if you work in a critical infrastructure industry, you have a special responsibility to continue to go to work; (8) avoid social gatherings in groups of more than 10 people; (9) avoid eating and drinking at bars, restaurants, and food courts—use drive thrus, pick up, or delivery options; (10) avoid discretionary travel, shopping trips, and social visits; (11) do not visit nursing homes or retirement or long-term care facilities unless to provide critical assistance; and (12) practice good hygiene.

 

With regard to state-level orders, Governor Abbott has today ordered compliance with the items in the bulleted list in the first question above.

 

Because the federal government has issued only guidance, the only non-local (e.g. city or county) mandatory restrictions are those imposed by Governor Abbott’s new order.

 

What action has the governor taken with respect to first responders and testing?

 

Yesterday, the governor issued the following press release:

 

Governor Greg Abbott has waived certain statutory provisions to ensure public safety employees who contract COVID-19 during the course of their employment will be reimbursed for reasonable medical expenses related to their treatment of COVID-19. Because the nature of their duties has caused them to increase their risk of contracting COVID-19, the Governor has waived these statutory provisions so that public safety employees who contract COVID-19 are not also financially penalized.

 

“Texas’ public safety employees are vital to our COVID-19 response,” said Governor Abbott. “These brave men and women are on the front lines and risking potential exposure to keep our communities safe. By waiving these regulations, Texas will ensure that those who may contract COVID-19 will have the support they need to pay for medical expenses.”

 

While the actual order is not posted on the governor’s website, League staff obtained this language from his office:

 

In accordance with section 418.016 of the Texas Government Code, the Office of the Governor grants DWC’s request to suspend Texas Government Code 607.002(1) and (2) to the extent necessary to allow those public safety employees, who were likely to have been exposed to COVID-19 while in the course of their employment, to be entitled to the reimbursements set forth in 607.002 of the Government Code.

 

Those subsections provide that:

 

Sec. 607.002. REIMBURSEMENT. A public safety employee who is exposed to a contagious disease is entitled to reimbursement from the employing governmental entity for reasonable medical expenses incurred in treatment for the prevention of the disease if:

(1) the disease is not an "ordinary disease of life" as that term is used in the context of a workers' compensation claim;

(2) the exposure to the disease occurs during the course of the employment; and

(3) the employee requires preventative medical treatment because of exposure to the disease.

 

The apparent intent of the order is to remove any impediments to a city providing and paying for testing for its first responders.

 

Further Updates

 

Has the Texas Municipal League Intergovernmental Risk Pool provided COVID-19-specific training for its members?

 

Yes. TMLIRP’s online learning partner, LocalGovU, is offering timely online learning classes that cover COVID-19, including COVID-19 for Law Enforcement and COVID-19 for Local Government Personnel. These courses are no cost to TMLIRP members. 

 

If your entity has established a TMLIRP online learning center account, the entity’s administrator can assign these courses to employees. LocalGovU has how-to videos on system functions in the online learning center. 

 

If you do not have an account already established for your entity, please go to TMLIRP’s online learning page to request access to the training platform. An entity should assign a training administrator to serve as the contact for the online learning center. Requests for training access will be granted once your account has been verified, usually within 24 to 48 hours. A LocalGovU Customer Success representative will reach out to connect once your account has been verified. 

 

Link to TMLIRP online learning page: http://bit.ly/TMLIRPOnlineLearning 

 

Texas Municipal League Intergovernmental Risk Pool

Loss Prevention Department

1821 Rutherford Lane, First Floor

Austin, TX 78754

512-491-2300

800-537-6655 (in Texas only)

lossprevention@tmlirp.org

 

Do cities under 500,000 population have direct access to the $139 billion Coronavirus Relief Fund created under the federal CARES Act?

 

Likely not, but we don’t yet know for sure. Conventional wisdom has been that the CARES Act only allows state governments, along with local governments with populations exceeding 500,000 to receive direct funding from the Coronavirus Relief Fund. (Arguably, the state would provide additional funding to local governments under 500,000 population through its allocation.) That guidance is based on this definition of “local government” in the section of the Act pertaining to the Coronavirus Relief Fund:

 

“The term ‘unit of local government’ means a county, municipality, town, township, village parish, borough, or other unit of general government below the state level with a population that exceeds 500,000.”

 

The National League of Cities has raised an alternative interpretation in a letter to the U.S. Department of Treasury premised on a doctrine of statutory interpretation called the “rule of the last antecedent.” Essentially what NLC contends under this interpretation is that the 500,000 population requirement applies only to an “other unit of general government below the state level” and not to a “county, municipality, town, township, village, parish, [or] borough.”

 

NLC has requested interpretive advice from the Department of Treasury on this question, and TML will provide updates on any such guidance as it become available.

 

Is a state government permitted to grant revenue received by the state from the Coronavirus Relief Fund to local governments under 500,000 population?

 

If local governments under 500,000 population cannot receive direct access to federal funds under the CARES Act, a reasonable interpretation of the new law would likely permit a state government to use revenues it receives under the Coronavirus Relief Fund to further fund these local governments. However, one possible interpretation of the Coronavirus Relief Fund language in the CARES Act indicates that funding received by the state may only be used to cover expenditures made by the state.

 

In the same letter linked in the question above, the National League of Cities has sought interpretive advice from the Department of Treasury on this language. NLC argues in its letter why the Congress likely did not intend to deny funding to local governments under a certain population threshold, as residents of those communities are equally as susceptible to the coronavirus as residents of large urban areas. 

 


Mar 30

March 30, 2020 TML Coronavirus Update #11

Posted on March 30, 2020 at 3:52 PM by TML Staff

Urgent Updates

 

How much can Texas cities expect to receive under the federal CARES Act?

 

Last week, the president signed into law the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), a bill providing over $2 trillion in emergency relief funds to help mitigate the financial harm caused by the coronavirus pandemic across the country.

 

At this stage, it is not clear exactly how much federal funding will be made available to Texas cities across the board. As part of the legislation, Congress directly allocated roughly $11.24 billion through the Coronavirus Relief Fund to Texas for use by the state and local governments. Texas cities with populations over 500,000 are eligible for direct financial assistance under this fund. Other Texas cities will presumably need to apply for pass-through grants from the remaining allocation amounts through a yet-to-be-determined process at the state agency level.

 

The CARES Act includes other opportunities for funding critical city services as well. The National League of Cities has prepared this document, which details these funding opportunities for cities nationwide.

 

Has there been litigation relating to how conflicts between city and county emergency orders are resolved?

 

Yes. For example, the County Judge in the North Texas County of Collin issued a social distancing order that appeared to be lax in its directives. The Mayor of the City of McKinney, located in Collin County, issued a more stringent order. Shortly thereafter, a local realtor sued the city, claiming that the county order – even though less stringent – controls over any city order. 

 

A district court judge will consider whether to impose a temporary restraining order prohibiting enforcement of the mayor’s order on Tuesday, March 31, pending further proceedings on the merits. The League has previously shared the relevant conflicts provisions from the Texas Disaster Act. Here they are again.

 

Texas Government Code Section 418.103 resolves many conflicts in relation to emergency management orders:

 

"(a) The governor shall determine which municipal corporations need emergency management programs of their own and shall recommend that they be established and maintained. The governor shall make the determinations on the basis of the municipality's disaster vulnerability and capability of response related to population size and concentration.

(b) The emergency management program of a county must be coordinated with the emergency management programs of municipalities situated in the county but does not apply in a municipality having its own emergency management program."

 

In some case, however, the more specific provisions of Section 418.108 may control:

 

"(f) The county judge or the mayor of a municipality may order the evacuation of all or part of the population from a stricken or threatened area under the jurisdiction and authority of the county judge or mayor if the county judge or mayor considers the action necessary for the preservation of life or other disaster mitigation, response, or recovery.

(g) The county judge or the mayor of a municipality may control ingress to and egress from a disaster area under the jurisdiction and authority of the county judge or mayor and control the movement of persons and the occupancy of premises in that area.

(h) For purposes of Subsections (f) and (g): (1) the jurisdiction and authority of the county judge includes the incorporated and unincorporated areas of the county; and (2) to the extent of a conflict between decisions of the county judge and the mayor, the decision of the county judge prevails."

 

The interplay between the provisions above and other law should also be an issue in the lawsuit. For example, the Health and Safety Code provides that:

 

Sec. 122.005. POWERS OF TYPE A GENERAL-LAW MUNICIPALITY. 

(a) The governing body of a Type A general-law municipality may take any action necessary or expedient to promote health or suppress disease, including actions to:

(1) prevent the introduction of a communicable disease into the municipality, including stopping, detaining, and examining a person coming from a place that is infected or believed to be infected with a communicable disease;

(2) establish, maintain, and regulate hospitals in the municipality or in any area within five miles of the municipal limits; or

(3) abate any nuisance that is or may become injurious to the public health.

(b) The governing body of a Type A general-law municipality may adopt rules:

(1) necessary or expedient to promote health or suppress disease; or

(2) to prevent the introduction of a communicable disease into the municipality, including quarantine rules, and may enforce those rules in the municipality and in any area within 10 miles of the municipality.

(c) The governing body of a Type A general-law municipality may fine a person who fails or refuses to observe the orders and rules of the health authority.

 

Sec. 122.006. POWERS OF HOME-RULE MUNICIPALITIES. A home-rule municipality may:

(1) adopt rules to protect the health of persons in the municipality, including quarantine rules to protect the residents against communicable disease; and

(2) provide for the establishment of quarantine stations, emergency hospitals, and other hospitals.

 

The League will report on further developments in the case. In the meantime, each city should consult with its attorney about the interaction between city and county orders.

 

Has the federal government issued additional guidance with respect to which jobs are classified as “critical infrastructure?”

 

Yes. The White House issued the following information last Saturday (March 28):

 

“Functioning critical infrastructure is imperative during the response to the COVID-19 emergency for both public health and safety, as well as community well-being. Certain critical infrastructure industries have a special responsibility in these times to continue operations. On Saturday, March 28, the Department of Homeland Security (DHS) – Cybersecurity & Infrastructure Security Agency (CISA) – released updated guidance on the essential critical infrastructure workforce (see Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response). The guidance and accompanying list are intended to support state, local, and industry partners in identifying the critical infrastructure sectors and the essential workers needed to maintain the services and functions Americans depend on daily and need to be able to operate resiliently during the COVID-19 pandemic response.

 

State, local, tribal, and territorial governments are responsible for implementing and executing response activities, including decisions about access and reentry, in their communities, while the Federal Government is in a supporting role. Officials should use their own judgment in issuing implementation directives and guidance.” 

 

Since his order on March 26, 2020 (GA-11), has Governor Abbott taken any additional action imposing quarantine on individuals traveling by plane into Texas from other states?

 

Yes. On March 29, 2020, Governor Abbott issued an additional executive order requiring individuals traveling by plane with a point of last departure in the State of California; State of Louisiana; State of Washington; City of Atlanta, Georgia; City of Chicago, Illinois; City of Detroit, Michigan; and City of Miami, Florida to self-quarantine. This order is effective at noon on March 30th.

 

We reported on the requirements of the quarantine in a previous Q&A, which apply to these locations as well. 

 

Has Governor Abbott issued an order that applies to people driving into the state from a designated point of origin?

 

Yes. On March 29, 2020, Governor Abbott issued an executive order requiring individuals traveling from any location in Louisiana to self-quarantine for 14 days. The order is effective at noon on March 30th. The requirements for quarantine, including the criminal penalties, are the same as for individuals traveling by plane, which the League reported in a previous Q&A.

 

Who will enforce the order requiring people driving in from Louisiana to self-quarantine?

 

The Texas Department of Public Safety (DPS) shall enforce this executive order along the Texas-Louisiana border.

 

Further Updates

 

Has the Department of Labor issued further guidance on the Families First Coronavirus Response Act?

 

Yes. Yesterday (Sunday, March 29), the Department of Labor issued its third round of guidance on the Families First Coronavirus Response Act (see questions 38-59 within the guidance). Go to the guidance document for the questions and answers.

 

Where can I find archived issues of the TML Coronavirus Updates?

 

TML Coronavirus Updates are archived chronologically here and by subject here.