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Urgent Updates
Can you explain how the President’s latest executive orders
affect cities?
We’ll try our best. On Saturday (August 8), the president
issued four executive orders, three of which are relevant to
cities. (The order relating to student loans won’t be discussed here. It
brought back nightmares because it took your Update editor fifteen
years to pay off his law school debt. Could’ve bought two Porsche 911
Turbos for the same price.)
One observation: Many media reports and statements from
some politicians don’t accurately reflect what’s in the orders. That
means city officials should carefully review with their attorneys the two
that could affect them as employers and regulators: (1) the payroll tax
order; and (2) the eviction order. We’ve also included an explanation of
the unemployment order.
-Payroll Taxes: The president’s executive order on “payroll taxes” halts federal
collection of the taxes from employers from September 1, 2020, until December
31, 2020, for workers who earn less than $4,000 every two
weeks. “Payroll taxes” aren’t defined in the order, but they would
typically mean federal withholding related to Medicare and Social Security.
The order doesn’t “forgive” the taxes. They will come due
from the employer when the deferral period ends. Thus, an employer
(including a city) may wish to continue withholding from employees the
amounts due lest it later be on the hook for them.
-Evictions: The president’s executive order on “evictions” doesn’t stop
evictions. Rather, it directs Health and Human Services Secretary Alex
Azar and Centers for Disease Control and Prevention Director Robert Redfield
to “consider” whether an eviction ban is needed.
The Texas Supreme Court had a ban that expired in May. The
CARES Act contained a prohibition on evictions that expired in July. A
handful of cities and counties have bans in place, but the Texas attorney
general opined that those are preempted by state
law. Those actions leave the eviction decision up to landlords
acting through the court process, typically justice courts.
-Unemployment Benefits: The president said that he
is extending the unemployment “bonus” at $400 per week through the end of the
year. That statement leaves out many details and raises many questions.
The $600 was part of a “booster fund” in the federal CARES Act. With
some exceptions, that money was being added “on top of” state unemployment
benefits. The $600 booster expired last Saturday because Congress hasn’t
been able to agree on the terms of the next stimulus bill.
The president’s executive order attempts to allocate $44
billion to unemployment benefits from the Department of Homeland Security’s
Disaster Relief Fund, which is typically used for hurricanes, tornadoes, and
similar disasters. Most agree that only Congress can appropriate from
that fund. Moreover, assuming no legal challenge ends the switch, the
$44 billion will run out long before the end of the year.
The president’s proposed benefit is at two-thirds of the CARES
Act amount ($400 versus $600), and a state actually has to cover $100 of it to
receive any federal money. The order suggests that states have plenty of money from the
CARES Act’s Coronavirus Relieve Fund to cover that amount. State leaders
in Texas haven’t yet decided whether they will participate.
What’s the latest with regard to the effect of the pandemic on
public hearings, especially a city’s statutorily-required property tax
hearing?
Some state legislators are having a tough time deciding what
to do, but the answer is in state law for a city’s tax rate hearing. As
it stands right now, Texas House committees aren’t allowing in-person
hearings. That decision, made by Speaker Bonnen, may or may not
stand permanently.
The Texas Sunset Advisory Commission (a 12-member legislative
committee that periodically reviews the functions and efficiencies of state
agencies) met last week. According to The Texas Tribune, “[a]fter
two hours, members couldn’t agree whether to let people testify in person or
online, or choose between the two options. Their unpleasant meeting was a
miniature version of the argument we’ve all been watching for months.”
Several weeks ago, the City of Austin asked the governor to
suspend the following provision from Tax Code 26.06: “(a) A public hearing
required by Section 26.05 may not be held before the fifth day after the date
the notice of the public hearing is given. The hearing must be on a weekday
that is not a public holiday. The hearing must be held inside the boundaries
of the unit in a publicly owned building or, if a suitable publicly
owned building is not available, in a suitable building to which the
public normally has access. At the hearing, the governing body must
afford adequate opportunity for proponents and opponents of the tax increase
to present their views.”
The governor refused to suspend the requirement that the hearing
be “in-person” in a public or suitable building. He presumably did so
because he believes doing so would reduce public input on city tax rates.
Austin also posed the question to the attorney general’s “disaster counsel”
email. The attorney general’s office responded that they believe Section
26.06(a) requires an in-person hearing. Please note that the tax hearing
in question is the one cities hold only if they are exceeding the
no-new-revenue rate (formerly called the effective rate).
That advice raises questions about any number of
statutorily-required public hearings. The governor’s Open Meetings Act suspensions don’t mention any provision outside of the
Act related to hearings. Many attorneys argue that, if the meeting
itself may be conducted virtually, a hearing within that meeting may be as
well. Others point out that the governor hasn’t expressly suspended any
public hearing requirement. That answer may lie in a statute’s language
relating to a required hearing. In other words, the Tax Code provision
discussed above has very specific language.
Contrast that with, for example, zoning-related hearing requirements
in Local Government Code Sections 211.007 and 211.0075. (The “zoning commission shall make a
preliminary report and hold public hearings on that report…”) Or consider the
budget hearing required by Section 102.006. (“The governing body of a municipality shall
hold a public hearing on the proposed budget. Any person may attend and may
participate in the hearing.”) Those sections don’t seem to restrict
hearings from being held virtually, and we find no general requirement that
in-person comment must be allowed when conducting a public hearing. That
being said, many cities are conducting them in-person out of an abundance of
caution.
The bottom line: As always, city officials should rely on
their attorney’s advice.
What additional information has the Secretary of State sent
out regarding postponed elections?
The Secretary of State’s Elections Division sent “MASS EMAIL
(CSO-3331) - Early Voting Requirements for November 3, 2020” today (August
10):
“Dear Election Officials:
On July 27, 2020, Governor Greg Abbott issued a proclamation suspending Section 85.001(a) of the Texas
Election Code to expand the early voting period for the November 3, 2020
elections. We’ve received a number of questions related to this
issue. We would like to clarify several things about the early voting
requirements.
1. Early Voting Period: The early voting period will begin on
Tuesday, October 13, 2020 and end on Friday, October 30, 2020.
2. Hour Requirements when the County or City is the Early
Voting Clerk: Per Section 85.005(a) of the Election Code, early
voting by personal appearance shall be conducted on the weekdays of the early
voting period and during the hours that the early voting clerk’s main
business office is regularly open for business. The early voting clerk
can order additional hours beyond the minimum requirements.
a. Hour Requirements when the County or City is NOT the
early voting Clerk: Early voting by personal appearance must be
conducted at the main early voting polling place for at least 8 hours each
weekday of the early voting period that is not a legal state holiday. If
the territory has fewer than 1,000 registered voters, voting shall be
conducted at least three hours each day. (Sec. 85.005(b)).
3. Extended Hour Requirements for County Early Voting
Clerks
a. Extended Hours for Counties (not cities) with a
population of 100,000 or greater: Early voting in the general
election for state and county officers must be conducted at the main early
voting location for at least 12 hours on each weekday of the last week of the
early voting period. (Sec. 85.005(c)). The requirement to conduct
Saturday and Sunday voting at the main early voting location triggers
Saturday/Sunday voting at any mandatory temporary branches in the county election
established under Section 85.064(d).
b. Extended Hours for Counties (not cities) with a
population under 100,000: If the county early voting clerk receives
a written request (PDF) by at least 15 registered
voters of the county for extended hours, early voting in a general election
for state and county officers must be conducted at the main early voting
location for at least 12 hours on each weekday of the last week of the early
voting period. (Sec. 85.005(c)). The written request must be submitted in
time to enable compliance with Section 85.067. (Secs. 85.005(c),
85.067(c)). For November, this deadline is October 20, 2020.
c. Extended Hours for Cities (even when the county is
serving as the early voting clerk): Per Section 85.005(d),
early voting by personal appearance shall be conducted for at least 12 hours
on two weekdays. If the county is conducting an election on the
city’s behalf either as part of a contract for election services or a joint
election agreement, the county must comply with this extended hour
requirement.
4. Weekend Hours when the County is the Early Voting Clerk: The
county election officer may order early voting on any Saturday or Sunday during the
early voting period and may determine the hours for such Saturday or Sunday
early voting. Notice of Saturday or Sunday early voting (PDF) must
be posted continuously for at least 72 hours immediately preceding the first
hour that voting will be conducted. (Sec. 85.007(c)). The notice shall be
posted on the bulletin board used for posting notice of meetings of the
commissioners court, as well as on the political subdivision’s website, if
maintained. (Secs. 85.007(c), 85.007(d)).
a. Extended Hours for Counties with a population of 100,000
or greater: Early voting in the general election for state and
county officers must be conducted at the main early voting location for (1)
at least 12 hours on the last Saturday of the early voting
period, AND (2) at least 5 hours on the last Sunday of the early
voting period. (Sec. 85.006(e)).
b. Extended Hours for Counties with a population under
100,000: If the early voting clerk receives a written request (PDF) by at least 15 registered
voters of the county, early voting in a general election for state and county
officers must be conducted at the main early voting location for (1) at least
12 hours on the last Saturday of the early voting period, and (2) at least 5
hours on the last Sunday of the early voting period. (Sec. 85.006(e)). The
request for Saturday and Sunday hours must be received in time for the early
voting clerk to comply with the 72-hour posting requirement before the start
of early voting. (Secs. 85.006(e), 85.007(c)). For November, this deadline is
October 20, 2020.
5. Weekend Hours when the County is NOT the early voting
clerk: The authority ordering an election may order early voting at
the main early voting location on any Saturday or Sunday during the early
voting period. The authority ordering early voting may also determine
the hours of weekend voting. Voting on ANY Saturday or
Sunday must be included in the order and notice of election.
The order and notice must include the dates and hours of Saturday or Sunday
voting. (Secs. 85.006, 85.007). The election notice must be posted on the
political subdivision’s website, if maintained. (Sec. 85.007). The political
subdivision must have early voting on Saturday or
Sunday if a written request (PDF) is received from at least 15
registered voters of the political subdivision in time to comply with the
posting requirement. (Sec. 85.006(d)). The request must be submitted
in time to be included in the order and notice of election. (Secs.
85.006, 85.007). NOTE: If you contract with the county for a
unified joint early voting schedule, you must follow the county’s schedule; when
their rules change their schedule, your schedule will change.
6. Temporary Branch Locations: Temporary branch
polling places must remain open for each weekday of the early voting period
that the main early voting polling place will be open. The temporary
branch polling places must be open at least eight hours each day, unless the
city or county is not serving as the early voting clerk and the territory
holding the election has less than 1,000 registered voters, in which case the
temporary branch polling places must be open for at least three hours each
day. (Secs. 85.062, 85.064). For additional information regarding temporary
branch locations, please review our Advisory No. 2019-20.
7. Amending the Election Order: We recommend amending
the election order to reflect the changes to the early voting
period. This amendment does not need to occur by August 17, 2020
since early voting will occur on the dates dictated by the Governor’s
Proclamation regardless of what the order states. This action
would be taken by the authority who originally ordered the election.
Thank you for the questions you have been sending us. We
will be sending out a separate email regarding the hand delivery of mail
ballots. Please let us know if you have any additional questions or
concerns.
Christina Worrell Adkins
Legal Director – Elections Division
Office of the Texas Secretary of State
1.800.252.VOTE (8683)
elections@sos.texas.gov
www.sos.texas.gov“
What is the status of the suspended Open Meetings Act
provisions?
Last Friday (August 10), the governor’s office extended the
Open Meetings Act suspensions. Previously, on March 16, the governor granted
the office of the attorney general’s request for suspension of certain open meeting statutes.
The temporary suspension allows, among other things, for
telephonic or videoconference meetings of governmental bodies that are
accessible to the public in an effort to reduce in-person meetings that
assemble large groups of people.
The guidance associated with the suspension provides that:
“These suspensions are in effect until terminated by the office of the
governor, or until the March 13, 2020, disaster declaration is lifted or
expires.” The March 13 declaration has been extended for successive 30-day
periods, including Friday’s extension for 30 days. That means the relevant
open meetings laws remain suspended for at least another 30 days (or until
affirmatively rescinded).
We can’t be certain, but it is highly likely that the governor
will continue to repeatedly extend his declarations. We’ve heard from his
staff that they have no immediate plans to rescind the suspensions, which are
sensible and seem to be working well, but that can’t be guaranteed
Further Updates
What is a bar and what is a restaurant, and why does it
matter?
Seems like a simple question, right? No, sir. Any
establishment that is licensed by the Texas Alcoholic Beverage Commission
(TABC) and for which alcohol sales account for more than half of its gross
receipts is a “51 percent establishment.” In other words, it’s a
“bar.” Or is it?
One state representative recently gave the example of a burger
restaurant, where a patron might buy a burger and two beers. Oftentimes, the
beer will cost more than the food, but that doesn’t necessarily make the
restaurant a bar.
Because of the confusion, TABC issued guidance to license
holders:
“Qualifying as a Restaurant Under GA-28:
Businesses that have a 51% designation with TABC or that have
not traditionally been considered a restaurant by TABC may apply to qualify
as a restaurant under GA-28 in order to provide dine-in services. Follow this process to apply and establish that your business
derives less than 51% from the sale of alcoholic beverages.
The following information does not allow a business to
circumvent the requirements in Executive Order GA-28 or any subsequent executive
order.”
What is the comptroller’s topsy-turvy news on sales tax
collections last month?
According to Texas Comptroller Glenn Hegar, state sales tax
revenue totaled $2.98 billion in July, which is 4.3 percent more than
in July 2019. His press release states in
part that:
“The majority of July sales tax revenue is based on sales made
in June and remitted to the agency in July. Widespread social distancing
requirements were more relaxed across the state in June than in previous
months.
‘State sales tax collections in July were better than
expected, increasing despite the high unemployment due to the pandemic,’
Hegar said. ‘The increase was due to a surge in collections from the retail
trade sector; receipts from other major sectors — including mining,
construction, wholesale trade, services and restaurants — showed significant
declines.’”
Has the governor made additional statements about school
re-opening in the fall?
No, but confusion remains. The Texas Tribune reported on the issue last Friday (August 7).
What’s the latest from NLC related to congressional action on
the next stimulus bill?
The National League of Cities explained the breakdown in
negotiations last Friday (August 7):
“The negotiations over the next coronavirus relief package
broke down Friday afternoon, with the two sides seemingly more dug-in.
After the two-hour meeting, House Speaker Nancy Pelosi (D –
CA) told reporters, ‘I told them to come back when you're ready to do a
bill.’
Treasury Secretary Steven Mnuchin said if they can reach
agreement on state and local and on unemployment, ‘we can reach an overall
deal. And if we can't, we won't.’
White House Chief of Staff Mark Meadows said that at the
beginning Democrats wanted nearly a trillion dollars in spending for state
and local governments. And today, Democrats, according to Meadows, have not
moved.
Mnuchin said state and local is a ‘big issue and we are very
far apart. He added: ‘The president is not going to do a deal that has a
massive amount of money to bail out state and locals.’
Mnuchin and Meadows said President Donald Trump would be
taking executive action this weekend on four items: an eviction moratorium,
student loans, unemployment insurance, and a payroll tax cut.
[Editor’s Note: The President did, indeed, issue
executive orders. See the questions above.]
Senate Minority Leader Charles Schumer (D – NY) said that
Democrats would litigate if Trump tries to move ahead with executive
actions.”
What’s the status of the 2020 TML Annual Conference and
Exhibition?
The TML Board of Directors met virtually last Friday and
concluded that it is impossible for the League to host the TML Annual
Conference and Exhibition, scheduled for October 14-16 in Grapevine, as an
in-person meeting. This difficult, but necessary decision was made for the
health, safety, and comfort of our attendees, speakers, and exhibitors, and
recognizes the effect that current state government restrictions would have
on our ability to hold the conference.
The 2020 TML Annual Conference and Exhibition will now take
place October 14-16 as a virtual event.
Registration will open on September 1. TML will share
details about the format and program in the coming weeks.
Where can I find archived issues of the TML Coronavirus
Updates?
TML Coronavirus Updates are archived by date here and by subject here.
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