Electronic Meetings During the COVID-19 Emergency: Recommended Practices

[UPDATE: Section 4.31 of Session Law 2020-3 enacted new G.S. 166A-19.24, which imposes a variety of procedural requirements on remote meetings held by public bodies during a state of emergency declared by the Governor or General Assembly. As defined by G.S. 166A-19.24, a “remote meeting” is one at which at least one board member participates by electronic means. In other words, the statute doesn’t apply to a meeting where all board members are physically present, even if the board doesn’t allow the public to attend in person. For a discussion of the new law’s requirements, please see the blog post here. This post still provides useful guidance for meetings where the board members attend in person but members of the public aren’t allowed inside the meeting room.]

Electronic meetings have quickly become a fact of life for many local governments in North Carolina as officials have acted to limit the spread of the Coronavirus. This post summarizes some of the advice that my colleagues and I have been giving on best practices for electronic meetings.

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Enacting and Amending County and City Emergency Ordinances: What Rules Apply?

As counties and cities continue their efforts to protect public health and safety during the COVID-19 crisis, some have discovered that their local emergency ordinances need updating.  For jurisdictions that do not regularly face the threat of natural disasters such as hurricanes, wildfires, and winter ice storms, it is understandable that a local emergency ordinance might not be reviewed and updated as often as one which addresses matters more frequently considered such as zoning.  Now, with COVID-19 impacting every jurisdiction in our state, some counties and cities are forced to exercise emergency powers they never envisioned needing.  As city and county officials reach for their local emergency ordinances, some are discovering that their ordinances are out of date or don’t properly vest the appropriate city or county official with the full array of legal authorities granted under the State Emergency Management Act (G.S. Chapter 166A).  What do to?

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STR Regulations Found Unconstitutional in Texas: Renting Property is a Fundamental Privilege of Property Ownership

Understandably, COVID-19 has certainly slowed the demand for short-term rentals (STRs). In fact, at least one county in North Carolina has prohibited STR operators from renting their properties to out-of-county and out-of-state guests while the state is under the stay-at-home order. However, once COVID is far behind us and people are comfortable traveling again, I suspect local governments will continue to explore options for regulating these properties. And for those local governments, there is a case in Texas that is worth following: Zaatari v. City of Austin, 2019 WL 6336186 (Tex. App. Nov. 27, 2019). (Importantly, the conclusion reached by the Texas court does not affect emergency restrictions on STR operations. The holding was issued before COVID-19.)

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Highlights of the U.S. Department of Labor’s FFCRA Regulations

THIS BLOG POST HAS BEEN UPDATED ON SEPTEMBER 30, 2020

On Monday morning, April, 6, 2020, the U.S. Department of Labor (“DOL”) issued regulations implementing the Emergency Family and Medical Leave Expansion Act (the Emergency FMLA Act”) and the Emergency Paid Sick Leave Act (the “Sick Leave Act”), both part of the Families First Coronavirus Response Act (FFCRA). This blog posts highlights the provisions of these new regulations likely to be of greatest interest to North Carolina government employers. It supplements and is intended to be used in conjunction with the Coates’ Canons blog posts How the Paid Sick Leave Provisions of the Families First Coronavirus Response Act Affect Government Employers and Which Tax and Retirement Deductions Must Be Taken from FFCRA Emergency Paid Leave?, both of which have been updated to take account of the final regulations. Read more »

Social Services Confidentiality: A Few FAQs During the Pandemic

County social services employees are regularly out in our communities during this public health emergency. Staff are

• Responding to reports of abuse, neglect, and dependency of children,
• Responding to reports of abuse and exploitation of disabled adults,
• Helping individuals and families enroll in programs such as Medicaid and food and nutrition assistance, and
• Providing other needed social services in the community during this extraordinary time.

All of the programs and services administered by these county agencies are subject to bodies of law that require them to protect the information that they collect, use, and share with others.  Several questions have come up about how social services agencies should interpret and apply these laws during the current pandemic. Read on for a Q&A discussion of several of these key questions.

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Force Majeure Clauses and COVID-19

COVID-19 has caused attorneys, units of government, and businesses across the country to review a common “boilerplate” provision in many contracts: the force majeure clause.

For those of us who, like me, lack French fluency, force majeure means “superior force.”  A force majeure clause is a contractual provision that excuses performance by a party—either temporarily or permanently—when that “superior force” prevents such party from performing under a contract.  The “superior forces” commonly listed in contracts include “acts of God”, “terrorism”, and “natural disasters”—all occurrences that are generally thought to be unexpected and beyond the control of the parties at the time that the contract is made.

There are few modern reported appellate cases in North Carolina directly interpreting application of a force majeure clause, and the diversity of force majeure clauses and contract terms makes it difficult to predict how North Carolina courts will treat these provisions.  Is COVID-19 a force majeure event that permanently or temporarily excuses performance?  Unfortunately for those seeking certainty, the best answer is . . . “it depends.” Read more »

Governor’s EO 124 Prohibits Local Government Utility Disconnections and Late Fees and Mandates New Reporting Requirements

UPDATE May 30, 2020: As detailed in this post, Governor Cooper issued EO 142 on May 30, 2020, which extends the effective period of EO 124 through July 29, 2020.

Updated May 2020: The Attorney General’s Office has modified the reporting requirement from weekly to monthly. The first report is due May 12, which will reflect data from April 2020. The reporting form is available here.

On March 31, 2020, Governor Cooper issued Executive Order 124 which, among other things, prohibits all end-user providers of residential water, wastewater, electric, and natural gas utility services from disconnecting these services and from charging late fee penalties. It also mandates certain payment plan parameters and imposes a new weekly reporting requirement. This blog analyzes the details of the Executive Order (EO).

As discussed below, there is some ambiguity about certain provisions of the EO. I will update the post as we get additional implementation guidance from the State Attorney General’s office or the North Carolina Utilities Commission. The School of Government hosted a Zoom call on April 2, 2020, on EO 124 and a recording of that call is here. Read more »