Sep 28

September 28, 2020 TML Coronavirus Update #128

Posted on September 28, 2020 at 6:17 PM by TML Staff

Urgent Updates

 

Are there any updates on the use of Coronavirus Relief Fund (CRF) money for public health and safety payroll costs substantially dedicated to responding to the COVID-19 pandemic?

 

Yes. Updating our September 22nd email, the U.S. Department of Treasury’s Office of Inspector General (OIG) has posted its revised CRF reporting and recordkeeping guidance on the Treasury OIG webpage. See specifically Questions 63, 70, 71, and 72.

 

OIG’s new guidance returns back to letting governments presume that payroll expenses for public health and safety employees are for services that are “substantially dedicated” to mitigating or responding to the COVID-19 public health emergency, and therefore allows governmental entities to use CRF funds for those purposes unless the entity’s chief executive determines that specific circumstances indicate otherwise. Payroll costs presumed to be permissible include payroll that was accounted for in the FY2020 budget and incurred prior to December 31, 2020. While governmental recipients of CRF money must make certain financial records available to OIG upon request to generally support payroll reimbursement using CRF revenue, the reporting and recordkeeping requirements are not for the purpose of determining whether public health and safety payroll is “substantially dedicated” to mitigating the emergency.

 

The North Texas law firm of Carrington Coleman, which advises governmental entities on the use of CRF funds, prepared this memo going into more detail on the revised OIG guidance.

 

What recent steps have been taken regarding eviction protection?

 

On Friday, September 25, Governor Abbott announced the allocation of $171 million of federal CARES Act funding for rental assistance and the Texas Eviction Diversion Program. According to the press release, the funding will “allow the Supreme Court of Texas, the Office of Court Administration, and the Texas Department of Housing and Community Affairs (TDHCA) to work in partnership with local governments and non-profits and the newly created Texas Eviction Diversion Program to help renters stay in their homes, catch up on missed rental payments, and avoid an eviction on their records.”

 

At the moment, there are few details on the process for renters to access these funds. However, a spokesperson for the Texas Department of Housing and Community Affairs has indicated that cities, counties, and nonprofits will manage the application process. The state expects funding to be available in late 2020 or early 2021. Some preliminary information on the Texas Eviction Diversion Program is available on the Texas Courts’ website.

 

Further Updates

 

May we still have our city council meetings in a fully remote setting?

 

Yes. In March 2020, the governor suspended various parts of the Open Meetings Act, as detailed in a letter to the Office of the Attorney General. Those suspensions are still in place. The suspension order permits meetings to occur in a fully remote setting, provided certain requirements are met.

 

The governor’s order reflects three overarching goals for remote meetings:

 

-offer the public, city employees, and members of the city council the opportunity to engage in self isolation or social distancing as recommended by the Centers for Disease Control and the State of Texas;

-ensure the public is able to hear open deliberations by the city council; and

-allow the public to interact with the city council during any public comment period or to otherwise address the city council.

 

In attempting to meet these goals, TML has received frequent questions from city officials about: (1) how best to provide for public interaction with the city council; and (2) how to plan for and address technical problems.

 

How should a city allow the public to interact with the city council during a public comment period or otherwise address the city council during a remote meeting?

 

In tackling this issue, it is important to understand the details of the governor’s order. Typically, Government Code Section 551.007(b) requires your city council to allow each member of the public who desires to address the body regarding an item on an agenda to address the body regarding the item at the meeting before or during the body's consideration of the item. The governor’s order suspends this requirement, but requires that a city “offer alternative methods of communicating” with city officials. The governor’s order does not impact the city council’s ability to have reasonable rules to manage public comment.

 

A quick online search reveals myriad ways that governmental bodies allow for public interaction and comment during a remote meeting. For instance, some cities engage in the following practices:

 

-Provide a dedicated voicemail or email where the public may submit comments. These comments may be read or played aloud at the meeting, or simply provided to the city council for review prior to the meeting.

-Allow the public to address the city council by phone during the meeting. This is typically achieved by requiring an individual to provide a contact phone number prior to the meeting that can be used by the presiding officer to call the individual.

-Utilize videoconference software that offers a “moderator” function, giving the presiding officer the ability to unmute a registered speaker to deliver live comments.

 

A recent meeting notice of the Texas Commission of Licensing and Regulation exemplifies some of these practices.

 

The variety of methods used by cities to interact with the public during remote meetings is likely a function of both the assortment of technologies used to hold meetings and differing legal interpretations of the governor’s suspension order.

 

Each city should consult its own legal counsel in making a final decision about how best to address this issue.

 

How does our city council plan for and respond to technical problems that impact the public’s ability to hear or interact with the city council at a remote meeting?

 

Among other things, the governor’s order requires the notice of a remote meeting to include a toll-free dial-in number or a free-of-charge videoconference link that provides two-way communication for members of the public to both hear the meeting and address the governmental body. Other specifics about the quality of video and audio have been suspended.

 

If a technical problem prohibits the public from hearing the meeting or interacting with the city council at the meeting, the city council may (depending on the circumstances) want to: (1) temporarily recess the meeting to address the problem; (2) redirect the public to an alternative means of hearing the meeting and/or interacting with the city council; (3) adjourn and reconvene the following regular business day; or (4) cancel the meeting altogether.

 

It may be advisable to include relevant details about what the public should do in case of a technical problem in the meeting notice itself. Each city should consult its own legal counsel in making a final decision about how best to address this issue.

 

Where can I find additional information about meetings?

 

You will find a compilation of TML’s daily COVID-19 updates on the subject of meetings here.

 

You may contact the attorney general’s office with questions about the interpretation of the governor’s suspension order by telephone at (888) 672-6787 or via email at TOMA@oag.texas.gov.


Sep 24

September 24, 2020 TML Coronavirus Update #127

Posted on September 24, 2020 at 1:48 PM by TML Staff

Urgent Updates

 

Will there be an update tomorrow?

 

In recent weeks, we’ve tried to avoid sending Coronavirus Update emails on Fridays, if at all possible. Unless something major pops up, we’ll stick with our new custom tomorrow.

 

What are the details of the most recent election lawsuit filed with the Texas Supreme Court?

 

If you didn’t already know it was election season, the growing number of election-related lawsuits should be a dead giveaway. Add a global pandemic to highly contentious state house elections (and a somewhat high-profile presidential election), and you’ve got a recipe for lots of litigation.

 

Yesterday, several Republican state officials—including the chairman of the state party, the sitting agriculture commissioner, and multiple state senators and representatives—filed a lawsuit with the Texas Supreme Court claiming that Governor Abbott lacks the authority to expand the early voting period and the window for a voter to deliver a ballot voted by mail. (Note: At the time this update is being published, it appears as though the Texas Supreme Court rejected the plaintiffs’ petition because it was improperly filed. The petition’s deficiencies will presumably be remedied in the near future.) Remember that back in July, Governor Abbott issued a proclamation pursuant to his disaster authority that both extended the early voting period by a week and expanded the period in which marked mail-in ballots may be delivered in person to the early voting clerk’s office to allow for delivery before Election Day. The stated purpose of those extensions was to give Texas voters “greater flexibility to cast their ballots, while at the same time protecting themselves and others from COVID-19.”

 

The plaintiffs in the lawsuit argue that Governor Abbott must consult the Texas Legislature in order to make changes to the early voting process: “If ever a special session was justified, now is the time. Abbott’s Executive Orders are unprecedented and have had life and death implications, destroyed small businesses and family’s livelihoods, have had a crippling effect on every single community, and now have the ability to impact local, state and national elections.”

 

As always, the League will monitor the litigation and provide updates as they become available.

 

Further Updates

 

How should cities treat COVID-19 health screening records?

 

Luckily, the Texas State Library and Archives Commission (TSLAC) is here to help with the answer. Earlier this week, TSLAC posted on their blog, The Texas Record, some helpful guidance on how cities handle COVID-19 screening records.

 

Where can I access a summary of the key topics you’ve covered in these Updates?

 

TML staff launched these Coronavirus Updates in mid-March when our cities started feeling the effects of COVID-19. Since then, we’ve produced more than 350 pages of archived information.

 

We know it’s hard to digest it all, so we’re offering a comprehensive update at the TML Virtual Annual Conference and Exhibition on October 14 at 1:30 p.m. Scott Houston, TML Deputy Executive Director and General Counsel, will lead the discussion, and will be joined by Assistant General Counsels Christy Drake-Adams, Amber McKeon-Mueller, and Evelyn Njuguna. Register here to listen in on this update, and view more than 30 other conference sessions related to disaster recovery and resilience.

 

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

 

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


Sep 23

September 23, 2020 TML Coronavirus Update #126

Posted on September 23, 2020 at 2:53 PM by TML Staff

Urgent Updates

 

What guidance has the Texas Supreme Court provided to municipal courts regarding in-person and remote proceedings? 

 

On September 18, the Supreme Court of Texas issued their 26th Emergency Order Regarding the COVID-19 State of Disaster, which provides limitations and criteria related to jury trials across the state, including for municipal courts. This new executive order replaces the 22nd Emergency Order, and is effective beginning October 1, 2020, and running through December 31, 2020.

 

Specific to municipal courts, the Emergency Order No. 26 provides the following:

 

-“A justice or municipal court must not hold an in-person jury proceeding, including jury selection or a jury trial, prior to December 1.”

 

-“In criminal cases where confinement in jail or prison is a potential punishment, remote jury proceedings must not be conducted without appropriate waivers and consent obtained on the record from the defendant and prosecutor. In all other cases, including cases in justice and municipal courts, remote jury proceedings must not be conducted unless the court has complied with paragraph 6(d).” (Note: Paragraph 6(d) provides that “the court has considered on the record any objection or motion related to proceeding with the jury proceeding at least seven days before the jury proceeding or as soon as practicable if the objection or motion is made or filed within seven days of the jury proceeding.” It is unclear if a non-record municipal court must consider any objections or motions “on the record.”)

 

-That the regional presiding judge must “ensure that all trial court judges in each region, including justices of the peace and municipal court judges, do not conduct in-person proceedings, including in-person jury proceedings, inconsistent with the Court’s Orders and the latest Guidance issued by the Office of Court Administration” and “assist each region’s local governments and courts to ensure that courts have the ability to conduct court business.”

 

In addition to the above, municipal court staff must also consider the following requirements for any non-jury proceeding: “Courts must not conduct in-person proceedings contrary to the Guidance for All Court Proceedings During COVID-19 Pandemic (“Guidance”) issued by the Office of Court Administration, which may be updated from time to time, regarding social distancing, maximum group size, and other restrictions and precautions. Prior to holding any in-person proceedings, a court must submit an operating plan that is consistent with the requirements set forth in the Guidance. Courts must continue to use all reasonable efforts to conduct proceedings remotely.”

 

Interested city officials can access more COVID-19 municipal court information from the Texas Municipal Courts Education Center (TMCEC). Municipal court personnel can also contact TMCEC’s legal department with questions about the application of the new order.

 

Further Updates

 

Do the governor’s motor vehicle registration statute suspensions affect junked vehicle ordinance enforcement?

 

That’s a good question, and even the experts aren’t sure. The ordinance enforcement issue relates to the use of an expired motor vehicle registration as evidence that a vehicle is “junked.” But the Texas Department of Licensing and Regulation says towing from private property is suspended, which may render enforcement moot. 

 

Back in March, the governor suspended various statutes and rules requiring registration for motor vehicles that operate on public highways. (The idea is – presumably – that registration isn’t necessarily a safety issue, and the requirement to do so would lead to long lines and crowds at DMV offices.) 

 

The statutory definition of a “junked vehicle” is a motor vehicle that is self-propelled, displays an expired license plate or does not display a license plate, and is: (1) wrecked, dismantled or partially dismantled, or discarded; or (2) inoperable and has remained inoperable for more than 72 consecutive hours, if the vehicle is on public property, or 30 consecutive days, if the vehicle is on private property. Transportation Code § 683.0711 allows a city to adopt a more inclusive definition of a “junked vehicle” than the statutory definition. Prosecutors typically use expired registration as evidence to prove that a vehicle meets the definition. Without it, the elements become much more difficult to prove.

 

None of that may matter, however, because TDLR has advised that the governor’s suspensions prevent a towing company from towing vehicles from private property for expired registration or renewals:

 

“Due to the extension granted for obtaining the initial registration or renewal of registration for a vehicle, tow companies may not tow vehicles from private property for expired registration or renewals until further notice.”

 

The bottom line is that the suspensions could be read to have created a sort of “grace period” for vehicle registration, making enforcement of a junked vehicle ordinance questionable. As with all complex legal matters, each city official should consult with their city attorney prior to acting (or not acting) on the above.

 

City attorneys with questions should contact Amber McKeon-Mueller, TML assistant general counsel, at amber@tml.org.