Working With Community Partners on COVID-19 Response

Even in ordinary times, and especially during times of emergency, no single organization has all the power, resources, or authority required to solve a public problem.

Right now, local governments are hard at work developing community-specific responses in keeping with state and federal directives.  These community plans can and should involve nonprofits, faith-based organizations, philanthropies, and the private sector – and not just in terms of limiting their operations in order to “flatten the curve” of contagion.  Some of these organizations may be looking to the local government for assistance and support, as described in Tyler Mulligan’s recent post about emergency loans. But local governments should be thinking about collaborating with these other organizations in order to increase the impact in and support for the community.

Read on for some examples of why local governments might benefit from collaborating with area nonprofits, in particular. Some can be accomplished while practicing social distancing.

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Can Counties and Cities Order “Stay-at-Home”?

As state and local government officials across the country struggle to respond to the rapidly escalating coronavirus pandemic, some are exploring the need for increasingly stringent measures, including what are being referred to as “stay-at-home” restrictions (I’ll address the important point of how this term is defined below – see this blog for discussion of why the term “shelter-in-place” should not be used in this context).  Do local governments in North Carolina have the legal authority to impose “stay-at-home” restrictions?  Because the quarantine and isolation authorities of local health directors may not be used to restrict the movement of entire populations (see my colleague Jill Moore’s blog post), the answer to this question calls for a careful analysis of the authorities granted counties and cities under the North Carolina Emergency Management Act (G.S. Chapter 166A) to impose restrictions and prohibitions under a locally declared state of emergency.  This blog discusses the scope of those authorities and offers a framework for analysis in determining whether “stay-at-home” restrictions (or for that matter, any other restrictions and prohibitions cities and counties in our state might impose) are both legally authorized and imposed and enforced in a legally valid manner.  This blog does not offer is any opinion on whether “stay-at-home” restrictions should be imposed.  That decision must be made by local officials based on their determination, based on guidance from public health officials, of what best serves the public health and safety needs of their communities.  Instead, this blog offers a summary of county and city emergency authorities under Chapter 166A, and a framework for analyzing emergency restrictions based on judicial interpretations of the scope of these authorities. Read more »

Local Government Finance Office Management and Internal Controls During COVID-19

When a local government is functioning normally, there are a number of statutory and regulatory duties that it’s finance office must carry out. Further, there are numerous internal control processes and practices that local finance professionals follow in order to safeguard the financial assets of the unit. We are now in a pandemic. Many local governments are going to have to make adjustments to these processes and practices to continue to carry out essential duties, with a remote and potentially depleted workforce, while still implementing some controls to protect their assets. This post addresses pertinent considerations for local finance officers as they implement these changes. The post will be updated as units share their strategies. There will be a Zoom Call for all NC local government finance professionals to discuss these and other issues on Wednesday, March 25, 2020, at 1pm. Read more »

How the Paid Sick Leave Provisions of the Families First Coronavirus Response Act Affect Government Employers

THIS BLOG POST HAS BEEN UPDATED ON SEPTEMBER 30, 2020

On March 18, 2020, Congress passed and the President signed into law the Families First Coronavirus Response Act (the “Families First Act”). The Families First Act is actually a compilation of a number of different acts with different purposes, all sharing the goal of providing relief to those who have been or will be adversely affected economically by the COVID-19 pandemic. The Families First Act has three provisions that will be of interest to North Carolina government employers. The first is the Emergency Family and Medical Leave Expansion Act, which provides a time-limited expansion of the job-protection benefits under the Family and Medical Leave Act (FMLA) and mandates, for the first time, paid leave under the FMLA. The second is the Emergency Paid Sick Leave Act, which requires employers to provide paid sick leave to employees who have been advised to self-isolate or self-quarantine, are seeking a diagnosis of COVID-19 symptoms, or are caring for an individual under isolation or quarantine or for children whose normal caregivers are unavailable due to the COVID-19 precautions. Both of these acts surprisingly allow individual employers to exclude from coverage healthcare providers and emergency responders. The third is Division G of the Families First Act, which provides payroll tax relief for sick leave pay required under the Act. To learn more about these three sections of the Families First Act and how they fit together, read on. Read more »

Can Counties and Cities Shut Down Video Gaming and Sweepstakes Establishments During An Emergency?

As local officials in our state continue to respond to the rapidly evolving and ever-changing COVID-19 pandemic, counties and cities wrestle with difficult decisions about imposing restrictions and prohibitions under a local state of emergency declaration to address the public health and safety needs of their communities.  Among the myriad situations currently confronting local jurisdictions in some parts of our state is the significant increase in crowd gatherings and other activities occurring at video poker, gaming, and sweepstakes establishments and business establishments that allow persons to play video games, arcade games, pinball machines or other computer, electronic or mechanical devices for amusement, which I will refer to collectively as “gaming establishments and gaming activities.”  Can counties and cities restrict or prohibit the operation of “gaming establishments and gaming activities” in their jurisdictions?   In my opinion, counties and cities have the legal authority to restrict or prohibit the operation of “gaming establishments and gaming activities” under a lawfully declared local state of emergency (for more information about county and city authorities under a local state of emergency, see this blog post and other related information on the School of Government’s COVID-19 resource site).  Specifically, G.S. 166A-19.31(b)(2) authorizes counties and cities to impose restrictions and prohibitions on “the operation of offices, business establishments, and other places to or from which people may travel or at which they may congregate.”  Under this statute, counties and cities have the authority to impose restrictions or prohibitions on the operations of “gaming establishments and gaming activities” as would be the case for any other business establishments or places at which people might gather if county or city officials determine doing so is necessary to protect public health and safety (remember that Executive Order No. 118 imposes restrictions and prohibitions on bars and in-person food consumption in restaurants under similar gubernatorial authorities).  How might a county or city exercise its emergency authorities to restrict or prohibit the operation of “gaming establishments and gaming activities”? Read more »

Local Government as Lender: Emergency Loans for Small Businesses

Economic activity can be disrupted by any number of unanticipated emergencies, ranging from natural disasters to virus outbreaks like COVID-19. When these events threaten the survival of small businesses, the owners may turn to government for assistance. One legal and effective way for a government to assist a small business with weathering a crisis is by providing an emergency loan. The loan allows the business to maintain operations when cash flow is severely constrained due to disruptions in demand. Loans are a common tool in these situations. For example, the federal Small Business Administration (SBA) offers disaster assistance loans to businesses that are impacted by natural disasters. SBA loans offer interest rates between 4% to 8% depending on a borrower’s ability to access other credit (see SBA disaster loan web page here). North Carolina is designated as eligible for SBA loans in response to the coronavirus outbreak.

Local governments may have the means and desire to offer their own local loan programs for small businesses during a crisis. Such loans could provide financing for businesses that cannot qualify for SBA loans or may provide bridge financing until an SBA loan is obtained. This post provides legal and practical guidance for local governments who wish to design and offer such loans. Read more »

Failures to Vote by Board Members Participating Remotely

[UPDATE: Section 4.31 of Session Law 2020-3 amends G.S. 160A-75 to apply the default “yes” rule discussed below to the unexcused failures to vote of council members who attend meetings electronically during a state of emergency declared by the Governor or General Assembly. In that situation, the default “yes” rule applies only while “simultaneous communication” is maintained with a remote member. If the member loses or terminates the connection, the rule doesn’t apply.]

The city council’s rule has been that only members who are physically present may vote.  In response to the Coronavirus state of emergency, the council has begun allowing members to vote, even when they participate by conference call, Zoom, Skype, or other electronic means.  Council Member Smith decides to join this month’s regular meeting by Skype.

Scenario 1:  Just prior to the vote on a proposed noise ordinance amendment, Council Member Smith loses internet service. He misses the rest of the meeting.

Scenario 2: Council Member Smith doesn’t want to take a position on the proposed noise ordinance amendment. He remains silent during the voting.

How should Council Member Smith’s failure to vote be treated in each scenario?  In my view, the answer is a big “It depends.” Read more »