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Urgent Updates
What’s the latest virus-related threatening letter from the
attorney general to a local government?
Nothing like a threatening letter to a county to welcome us
back from a much-needed long weekend. According to a press release from the attorney general last Friday
(September 4):
“Attorney General Ken Paxton?today?issued a letter to Cameron County Judge Eddie Trevino warning against a control order
issued jointly by Judge Trevino and the county’s
health authority that specifically dictates how religious private schools may
operate. The order, which attempts to prohibit in-person instruction at
religious private schools until September 28, 2020, violates the United
States and Texas Constitutions and the Texas Religious Freedom Restoration
Act.
‘The order prohibiting in-person instruction blatantly
disregards the religious freedoms guaranteed by federal and state law, rendering
it invalid,’ said Attorney General Paxton. ‘There are robust
constitutional and statutory protections unique to religious individuals and
communities, specifically including religious private schools. Religious
private schools may determine for themselves when to reopen free from
any government mandate or interference.’”
The press release above is pasted in verbatim. As we’ve
said before, we are not saying that the attorney general’s informal letters
are binding. To the contrary, we aren’t even acknowledging that they or
his previously-issued guidance to religious private schools are correct
statements of the law. But a city enacting regulations contradicting
them could face action by the attorney general.
What’s the latest from federal agencies regarding the spending
of CARES Act Coronavirus Relief Funds on public safety?
It’s a mess. The issue is how a city official determines
which “public safety” expenses are eligible for CRF funding. The federal
guidance has gone from “a city has to show how the public safety expense is
related to the virus,” to “you can spend it on any public safety expenses
because that’s too hard to figure out,” and back to “you must document how
it’s related.” Here’s basically where we are:
-The U.S. Treasury Department’s CRF web page has a “guidance document” (updated on September 2) that says CRF
funds may be used only to cover public safety expenses that are
“substantially dedicated” to mitigating or responding to the COVID-19 public
health emergency.
-The U.S. Treasury Department’s CRF web page also has a CRF FAQ document (updated on September 2) that
contradicts the agency’s own guidance document above when it states that “as
a matter of administrative convenience in light of the emergency nature of
this program, a local government may presume that payroll costs for public
health and public safety employees are payments for services substantially
dedicated to mitigating or responding to the COVID-19 public health
emergency, unless the chief executive (or equivalent) of the relevant
government determines that specific circumstances indicate otherwise.”
-To stir things up, the U.S. Treasury Department's Office of
Inspector General (OIG) issued a new set of FAQs on August 28, 2020 (OIG-CA-20-028). (The Office of Inspector General is
housed within the Treasury Department, but it is an independent
agency.) Those FAQs come to a conclusion similar to that in the first
bullet above. They state that “documentation and financial records as defined
above and any other documents/records” will be required to show that the
“employee's function/duties and/or time was substantially dedicated to
mitigating the COVID-19 emergency.”
How should a city official reconcile all the competing
guidance? You could reasonably have relied on the "may
presume" language in the Treasury Department’s FAQs for
months. However, according to the National League of Cities, the
"may presume" position taken by the Treasury Department in its FAQ
is essentially superseded by the OIG’s 69(a) burden to demonstrate and
substantiate that an employee was “substantially dedicated” to mitigating the
emergency.
NLC is drafting a letter to the OIG about this issue in
conjunction with other relevant state and local organizations. (Please
reach out to Michael Gleeson at Gleeson@nlc.org with any questions, concerns, and/or
feedback about the potential impacts on your city.)
To give you another perspective on this complex issue, the
North Texas law firm of Carrington Coleman, which advises governmental entities
on the use of CRF funds, prepared the following:
“The Per Se Rule
Carrington Coleman previously dubbed the rule that allowed CRF
funds to be used for payroll costs of public safety and public health workers
as the “Per Se Rule.” Because these payroll costs are legally presumed
to be substantially dedicated to COVID-19, these costs are “per se” eligible
expenditures.
On September 2, Treasury reaffirmed the validity of the Per Se
Rule, but limited its scope. Although generally broad in scope, the per
se rule now does not necessarily include all employees working in the public
safety and public health departments.
The Majority of Public Safety Employees Should Be Covered by
the Per Se Rule
The majority of public safety employees should be covered by
the Per Se Rule. But, according to Treasury’s most recent guidance, not every
employee in the public safety department is necessarily within the scope of
the rule.
Treasury limited the scope to frontline workers and extended
it to include others who directly support those workers. Employees who
are only indirectly engaged in public safety are not eligible. Treasury
failed to define the term “directly.” Without proper guidance, counties
and cities will have difficulty knowing whether some employees meet this
standard. Further clarification and guidance from Treasury is needed.
Treasury provided a list of frontline workers, specifically
identifying and including police officers, sheriffs, duty sheriffs,
firefighters, emergency medical responders, correctional and detention
officers and identified dispatchers and supervisory personnel as directly
supporting workers.
Most Public Health Employees Should Be Covered by the Per Se
Rule
Most, but not all, public health employees should be covered
by the Per Se Rule. However, according to Treasury’s recent guidance,
some employees in the public health department may be excluded.
Eligible payroll costs include employees involved in providing
medical and other health services to patients, and supervisory personnel,
including medical staff assigned to schools, prisons and other such institutions,
and other support services essential for patient care.
In addition, employees of public health departments directly
engaged in matters related to public health and related supervisory personnel
are covered by the Per Se Rule. But employees who are indirectly engaged
in public health matters are not eligible.
Uncertainty and Increased Administrative Burden
Treasury’s new guidelines essentially subjects these workers
who indirectly support frontline workers to the same factual and legal
scrutiny as other types of employees who are subject to “substantially
different use” standard.
The new guidelines create another hurdle for CRF recipients,
i.e., a determination of whether certain employees are directly or indirectly
related to frontline workers.
This new limitation is inconsistent with Treasury’s policy of
administrative accommodation. Further clarification by Treasury is
required. It is unfair for Treasury to now limit the scope of the Per Se
Rule six months into the ten-month covered period.
Unfortunately, the impact of this rule may keep some counties
and cities from properly including all of their public health workers because
of (1) the factual and legal uncertainty over whether a particular employee
“directly” supports its frontline workers and/or (2) their lack of resources
to perform a proper analysis and create the additional documentation needed.
Takeaways
-Treasury’s guidance reaffirms that CRF funds may be used to
pay for public safety and public health payroll costs.
-However, Treasury’s guidance limited the scope of which
public safety and public health payroll costs qualify as per se eligible.
-Treasury’s limitation should not create substantial economic
hardships, but unfortunately it will create increase administrative burdens.”
The advice above is reasonable. However, it’s not
intended to be legal advice to any particular city. Each city official
should consult with local legal counsel prior to assigning CRF funds to any
expenditure, particularly public safety.
We will report on further updates that will hopefully
reconcile the conflicting guidance. (Remember that we’ve also heard that
future federal legislation may allow CRF spending to replace lost revenue,
but that legislation has been stalled for some time.)
Has the IRS issued additional guidance related to the Presidential Memorandum deferring employee
payroll taxes?
Yes. Last Thursday (September 3), the IRS stated on
a payroll industry conference call that the deferral is
optional for the employer. In fact, according to the IRS, an
employer doesn’t have to temporarily stop withholding taxes even if
the employee requests that it do so. (However, if the employer chooses
to temporarily stop withholding taxes, the employer may allow employees to
opt-in or opt-out of the deferral.)
The advice given on the call confirms what we reported in the August 31 Update:
“Are employers required to temporarily stop withholding
taxes? The guidance does not explicitly state that the tax deferral is
optional for employers, and it makes no mention of an employee’s right to
defer (or not defer) withholding of the employee’s portion of the social
security tax.
In a footnote, the guidance provides that the deposit
obligation for an employee’s social security tax does not arise until the tax
is withheld, and by postponing the time for withholding the tax, the deposit
obligation is delayed. The guidance further provides that this “Notice does
not separately postpone the deposit obligation.” In a
round-about-way, this language seems to indicate that because deferral is
triggered by an employer withholding taxes, the employer has the option of
deciding whether or not to withhold taxes during the deferral period. As
this issue is not clear, each city should consult with its local counsel.”
Further Updates
What has TxDOT been up to during the pandemic?
They’ve been making masks and PSAs!
If you feel like you haven’t yet been able to properly express
yourself with a message on your face mask, don’t fret! The Texas Department
of Transportation has created “Don’t Mess with Texas” cloth face masks, which
are now available for purchase at Texas Highways Magazine’s “mercantile shop.” The masks are even washable and
reusable, with a pocket for a filter to be inserted!
Are the masks simply a fun extension of one of the most
popular ad campaigns in history? Or are they a secret means by which the
state is seeking to bolster the process of “reverse intergovernmental aid” by
raising revenue from city officials who buy one? To plug the current
projected state budget shortfall, TxDOT would have to sell only 427,112,349
masks at $9.95, which is $10.77 with tax. (Okay, that’s a joke,
but reverse intergovernmental aid is a real thing – see page
24.)
In addition, people seem to be littering with their used
personal protective equipment. According to a TxDOT press release from last Friday (September 4), “With a
growing number of discarded face masks, gloves and sanitizing wipes found
littering roadways and parking lots, Don’t mess with Texas called on the help
of some celebrity friends to remind fellow Texans that the only safe way to
dispose of used Personal Protective Equipment (PPE) is in a trash can.
Oscar winner and Minister of Culture/M.O.C. Matthew
McConaughey* and country music legend George Strait* are lending their voices
to new video public service announcements that urge Texans to
clean up their act, including proper disposal of used PPE.
The PSAs will air on TV networks, cable channels and
digital platforms starting this week. Other Texas celebrities joining
McConaughey and Strait in raising awareness about the issue are Mark Cuban, Eva Longoria, Marsai Martin, Ally Brooke and Brittany Broski. Each are using their social media
channels to share a personal video message reminding followers that Don’t
mess with Texas means don’t litter.”
[Editor’s Note: Come on, the dude can act, we know
that. But UT’s “MOC?” That’s laying it on pretty thick. Of course,
nobody better malign the “King of Country,” or they’ll have to answer to us.]
What is the status of the suspended Open Meetings Act
provisions?
Yesterday (September 7), the governor’s office extended the
Open Meetings Act suspensions for another 30 days. 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 yesterday’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
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 virtual TML 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 focused on disaster recovery and
resilience.
With cities being asked to do so much in relation to the
pandemic, is there one, single thing that really gets your goat?
Oh yes, indeed there is: irresponsible college
students. Let’s begin with this: what is the purpose of attending
college? Each student will likely have a different answer, but the
key points have been: (1) to prepare for finding a job; and (2) just as important,
to help with the transition from being a no-cares teen to a thoughtful adult.
Forbes describes the second point this way: “[C]ollege is
about more broadly preparing a person for success in life – to be an engaged
and enlightened citizen capable of thinking critically and communicating
clearly, ultimately able to thrive in their well-being.”
That’s what makes this The Texas Tribune article about students flaunting virus protocols by
“partying off campus” so frustrating:
“Schools, desperate to keep their doors open but worried about
health risks to their students, are being put in the uncomfortable position
of having to govern young adult behavior that is mostly happening off
university property.
But while reports of those crackdowns are beginning to
increase, most Texas universities aren’t penalizing individual students for
partying that takes place off-site.
Instead, those schools are relying heavily on cities,
property managers, national organizations and the students themselves to
combat risky off-campus behavior that threatens to increase community spread
of the coronavirus.”
Is the idea here that cities should “babysit” college
students, which needlessly diverts city law enforcement resources from more
pressing tasks? Perhaps the colleges and universities should make a
student infraction of virus protocols (i.e., the “law”), no matter where it
occurs, a part of their code of conduct. That would allow schools to
enforce violations of the code with suspension or expulsion.
Of course, just like with most other facets of preventative
measures, the issue seems to now be politicized. According to the New York Times, “a civil liberties lawyer raised a
concern that, having invited students back to campus, it was unfair of
colleges to punish nonconforming behavior too harshly. The schools have a
responsibility to persuade students to put public health above their impulse
to have a good time…”
Agreed. We are officially party-poopers, but never before
have partying students been so acutely dangerous to others.
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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