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Legal Guidance for Cities on COVID-19

Written by BEHwebsitelogo.jpg

The LOC thanks Beery, Elsner & Hammond, a longtime LOC Business Partner, for making this guidance available to our member cities.

March 13, 2020 (Updated April 23, 2020)

There are a multitude of issues arising out of the efforts being taken to contain and prevent the further spread of the novel coronavirus causing the disease known as COVID-19.  We here at BEH want to share some information, which we thought might be helpful to you and your jurisdictions in addressing some of these issues.

Be safe, stay well, and keep washing those hands!

All the very best,
Your friends and colleagues at BEH

Jump to: Emergency Declarations by Cities | What About Employment Concerns?
 

Public Meetings During Times of Emergency

A major concern for many clients is whether and how to conduct public meetings during a state of emergency.  Below are summaries of advice regarding some of the most common issues that arise when trying to conduct public meetings during times of emergency.

Cancellation/Postponement.  Consider cancelling and/or postponing regularly scheduled City Council, committee, task force, and other public meetings.  Does the governing body really need to meet at this time or are there matters that can wait for action at a future regularly scheduled, or special meeting?  If a meeting is absolutely necessary, try to limit the agenda items to only those that must be addressed immediately to limit the length of time of the meeting as well as the number of individuals who may be interested in the topics being discussed.

Notice of Cancellations.  The Oregon Public Meetings Law (ORS 192.630-192.695) does not require notice to the public of cancellations, but it is certainly appropriate to provide notice so as not to inconvenience the public.  The best methods to provide such notice include press releases, posting on the City’s web site, Facebook page and on other social media.  Posting notices outside of the meeting room is also appropriate.

Consider Holding Required Meetings Electronically.  If you must hold a meeting, it might not be possible (or advised) to have a quorum of a governing body attend in-person.  As a result it may be necessary to set up a telephonic (or other electronic) meeting where all members of the governing body call in for a meeting.  Please check your code/rules to ensure that they allow for this.  If not, the governing body can usually vote at the outset for a suspension of those local rules in order to hold an electronic meeting.  

Telephonic/Electronic Meetings Must be Open to the Public.  Governor Brown’s Executive Order 20-16 clarified the state’s interpretation of public meetings law during her declared state of emergency.  While the information contained in this section is accurate under the Oregon Revised Statutes, cities are encouraged to review the governor’s executive order, as well as LOC’s FAQ on said order, for additional information on holding telephonic and electronic meetings during this state of emergency.

If a governing body must hold a meeting, ORS 192.630(1)-(2) requires that the meeting be open to the public, and that all persons are permitted to attend.  In other words, the meeting cannot be held in private.  As a result, if a governing body decides to hold a telephonic/electronic meeting, it also needs to provide a mechanism by which members of the public can call in to “attend” the meeting.  Merely setting up a call in number to listen or a live-stream to watch/listen remotely is not enough. 

The governing body must also provide a place where individuals who do not have access to a phone/computer can call-in/livestream the meeting as well. The governing body should provide notice of how the public can attend remotely.  It can strongly encourage the public to attend remotely, particularly given the circumstances, but a governing body cannot prohibit a member of the public from attending in person at the location where a phone/live-streaming station is set up, even if the members of the governing body are participating remotely.

Other social distancing tools, such as requiring all of those who attend in person to remain six feet from each other, should be implemented.

Digital Meeting Options

Public Comment.  Governor Brown’s Executive Order 20-16 clarified the state’s interpretation of public meetings law during her declared state of emergency.  While the information contained in this section is accurate under the Oregon Revised Statutes, cities are encouraged to review the governor’s executive order, as well as LOC’s FAQ on said order, for additional information on holding telephonic and electronic meetings during this state of emergency.

The Oregon Public Meeting Laws do not require allowing the public to comment or otherwise participate in a public meeting (beyond attendance as discussed above).  However, many localities might have their own local rule/ordinances that allow for public participation, or the right of the public to comment might be required by statute (i.e. budget hearings; most land use matters) or charter requirements. 

Generally speaking, a governing body can suspend their local rules during a time of emergency and not permit public participation. In addition, if public participation is only required due to a governing body’s rule, the governing body may alter how and when public comment is taken. For example, the governing body may decide to take public comment on all matters at the very beginning of the meeting rather than waiting for each individual agenda item or to the end of a meeting for matters not on the agenda. This type of action would permit individuals to provide comment and leave if desired.
 
Conversely, when public participation is required by law, most likely by a state statute, the governing body will need to determine how it can best provide flexibility to address the concerns of COVID-19. For example, a governing body may permit and encourage written comments to be submitted in advance, or provide a means for individuals to call in to participate in the meeting. As with attending the meeting, the governing body should provide a way for the individual to participate (i.e making a telephone available, etc).
 
A governing body needs to remain mindful, however, that it likely may not limit participation to just written comments. For example, the state’s land use laws require public hearings where individuals may submit evidence, arguments, or testimony. Arguably, this requires the acceptance of both written and oral testimony.In addition, federal laws, such as the Americans with Disabilities Act (ADA), will likely require a governing body to accept oral testimony from those individuals who are not capable of providing written testimony.
 
If possible, the governing body should provide advance notice of the procedures it will use to accept public testimony on its meeting notices and also on its website. These notices can strongly encourage the public to use these alternative means rather than attending in person.

Special Meetings.  Generally a governing body must provide at least 24 hours’ notice of any public meeting under ORS 192.640(3), however, the statute allows less than 24 hours’ notice in the case of an actual emergency, but such meetings must be held only “as is appropriate to the circumstances” and the minutes for such a meeting must describe the emergency justifying less than 24 hours’ notice.  Whether an actual emergency exists depends on the facts and circumstances of each situation.  In the event the meeting is held with less than 24 hours’ notice the governing body must attempt to reach interested persons and the news media (phone call or email) to notify them of the emergency meeting. 

The Oregon Court of Appeals has indicated that it will scrutinize closely any claim of an actual emergency.Any claimed actual emergency must relate directly to the matter to be discussed at the emergency meeting. An actual emergency on one matter does not “justify a public body’s emergency treatment of all business coming before it at approximately the same time.” Or. Ass’n of Classified Employees v. Salem-Keizer Sch. Dist. 24J, 95 Or App 28, 32 (1989) (actual emergency concerning budget and levy problems did not “convert the contract approval deliberations into an emergency”).Nor do the work schedules of governing body members provide justification for an emergency meeting.
 
Large Meetings.  Governor Brown’s Executive Order 20-16 clarified the state’s interpretation of public meetings law during her declared state of emergency.  While the information contained in this section is accurate under the Oregon Revised Statutes, cities are encouraged to review the governor’s executive order, as well as LOC’s FAQ on said order, for additional information on holding telephonic and electronic meetings during this state of emergency.

While not many of our clients typically have more than 25 people present at a public meeting, please note that pursuant to the governor’s executive order, such meetings would be prohibited.  If you run into such a situation, you will need to limit the number of individuals gathered at the meeting by taking actions such as setting up an overflow room for individuals to observe the meeting and requiring movement of individuals in and out of the meeting room as necessary to permit all who want to provide public comment an opportunity to do so (if public comment is permitted or required). 

New - Teleconference Hijacking Concerns and Public Meetings Law

There have been several reports of teleconference sessions being hijacked (also being referred to as "Zoom-bombing") all over the nation, including being disrupted by pornographic and/or hate images and threatening language.  While Zoom has published recommendations to prevent hijacking, including waiting rooms, passwords and muting controls, local governments still must follow Oregon's Public Meetings Law - public meetings have to be public, and the public is not limited to just citizens of the city.  Teleconference sessions are not treated any different than a conference call meeting wherein the access code has to be noted on the public meeting notice. 

Below is an excerpt from the Oregon Attorney General's Manual on Public Records and Public Meetings:

"The Public Meetings Law expressly recognizes that meetings may be conducted by telephonic conference calls or “other electronic communication.”[614] Such meetings are subject to the Public Meetings Law.

Notice and opportunity for public access must be provided when meetings are conducted by electronic means. For nonexecutive session meetings held by telephone or other electronic means of communication, the public must be provided at least one place where its members may listen to the meeting by speakers or other devices.[615] In the alternative, the public may be provided with the access code or other means to attend the meeting using electronic means. If electronic access is provided, the technology used must be sufficient to accommodate all attendees, and any costs associated with providing access may not be passed on to the public.

As discussed in more detail below, special accommodations may be necessary to ensure accessibility for persons with disabilities. And even if the meeting occurs in executive session, the media must be provided access, unless the executive sessions are held under ORS 192.660(2)(d) (to deliberate with persons designated by the governing body to carry on labor negotiations) or ORS 332.061 » (hearings concerning the expulsion of a minor student from a public elementary or secondary school, or pertaining to examination of a student’s confidential medical records)."

Cities wishing to utilizing Zoom’s recommendations for the prevention of hijacking are strongly encouraged to first consult with their legal advisors to ensure that whatever measures they use will comply with Oregon’s Public Meetings Law.

Emergency Declarations by Cities

Several cities have or are considering issuing an emergency declaration related to COVID-19.  As you likely know, the Governor has already issued a statewide declaration of emergency, and a few counties, including Washington and Clackamas counties, have as well.  So should a city also issue an emergency declaration?

The answer to this question depends on why a city desires to do so, as well as what powers or authority may come from such a declaration for a city.

As an initial matter, it is important to note that most actions related to curbing the spread of disease are under the control of county public health authorities.   Under state law (ORS 431.003), counties generally act as the public health authority.  In addition, state law (ORS Chapter 433) addresses “Disease and Condition Control; Mass Gatherings; Indoor Air” and grants certain powers to the local public health authority in carrying out the provisions of the statute. Given these state laws, typically counties will be the first line of defense on these issues, and their actions will supersede those of a city.

In addition, as mentioned above, the Governor has also signed an Emergency Declaration authorizing the State and relevant state agencies to act under the Declaration. She has also signed an Executive Order ordering Oregonians to stay at home, and requiring social distancing measures for public and private facilities and businesses.  Under state law (ORS 401.309), the Governor’s orders related to the declared state of emergency also supersede any actions taken by a city.

So what role does a city play as it relates to a declaration of emergency?  First of all, under state law, cities are responsible for emergency services in their jurisdictions.  Specifically, under ORS 401.035 “the emergency services system is composed of all agencies and organizations involved in the coordinated delivery of emergency services. The Governor is responsible for the emergency services system within the State of Oregon. The executive officer or governing body of each county or city of this state is responsible for the emergency services system within that jurisdiction.”

Thus, even if a city does not declare its own state of emergency, it likely has obligations to assist the state and/or county with implementing measures that they have imposed to address COVID-19.  For example, if a city becomes aware of any gathering that would violate the Governor’s executive order cancelling all gatherings greater than 250, then the City would have a duty to give those gathered an order to disperse.  If the individuals refuse to disperse, then they have violated a lawful order and can be cited accordingly. 

In addition, under state law, a city governing body may declare its own state of emergency (ORS 401.309).  Should a city declare its own state of emergency, it may impose additional restrictions or take other actions needed to address the emergency, as long as they do not conflict with the Governor’s orders or those issued by the public health authority and are authorized by law. 

Generally speaking, actions taken by a city under an emergency declaration are authorized through a city ordinance or state law.  For example, many cities have emergency management ordinances, which provide a procedure for declaring an emergency and granting powers to a city manager, an elected official or the council as a body once the emergency is declared.  Most such ordinances typically permit actions such as imposing curfews; closing streets or other public places; prohibiting the sale of certain items; as well as taking any other actions that are imminently necessary under the circumstances for the protection of life or property or to prevent or minimize danger to lives or property.

Equally important, once a declaration of emergency is declared, a city is generally exempted from public contracting requirements and may directly award contracts as needed to address the emergency.  (See, generally, OAR 137-049-0150.)

If your city does not have such an ordinance in place, it may certainly enact one on an emergency basis or merely rely on the authority and powers granted by ORS 401.309 to declare an emergency.

A declaration of emergency may also provide a mechanism for a city to receive county, state or federal funding to assist with an emergency.  Typically, federal funding is not available unless the state declares an emergency, and state funding is not available unless a county declares an emergency.  To that end, in most emergency situations, such as a natural disaster, a city would submit its declaration of emergency to the county, which would then submit a declaration to the state, which would then submit a declaration to the federal government.  With COVID-19, the state has already declared an emergency as have a few counties.  To that end, it is not clear that a city will need to declare its own emergency in order to receive any funding that may become available.  Cities that are in need of funding assistance to deal with COVID-19 issues should contact their county offices of emergency management or the Oregon Office of Emergency Management (OEM) for assistance.  OEM has also published guidelines for local emergency declarations, which may provide additional assistance to cities.

As a final note, in considering what additional actions a city may desire to take under an emergency declaration, jurisdictions should remain mindful that constitutional limitations may still apply to such actions.  For example, a city may desire to implement restrictions on gatherings smaller than the state limit of 250 persons.  In such situations, cities need to keep in mind the constitutional right under the First Amendment of “freedom of assembly” and how such a limitation would implicate that right.  Generally, to be valid, the city’s regulatory action would need to be “narrowly tailored” to address a “compelling government interest.” Depending upon the facts of a specific situation, that test may be hard to satisfy where the Governor has already set a threshold of 250 persons.   Nonetheless, in the event that a circumstance arises where neither the state nor the county act (or determine that they do not have the authority to act), the city could step in under its emergency authority to fill the void.
 

What About Employment Concerns?

Many jurisdictions are considering how to accommodate employees either needing to or choosing to quarantine during this health crisis.  Many unions, most notably AFSCME, have sent around a sample “letter of agreement” (LOA) between employers and unions.  Some of these LOAs allow employees who cannot work from home to use paid administrative leave (and not their accrued leaves) for symptoms that could be related to COVID-19 without requiring medical verification.  Local governments may choose this option, but it is not the only choice. 

Local governments have a variety of choices.

  • First, local governments may take no proactive steps and simply allow employees to use sick leave and telework policies as usual. 
  • Second, local governments may choose to expand, amend, or enact telework policies.
  • Third, local governments may choose to allow some employees to use paid administrative leave rather than accrued leaves.
  • Fourth, local governments may amend sick leave policies, for example, to not require medical verification.
  • Finally, local governments may take a combination of the actions listed above, or agree to a union’s proposed LOA.

Some local jurisdictions (Washington County and McMinnville for example) have adopted a temporary policy in response to COVID-19 that provides paid administrative leave to certain categories of employees and ask that employees certify they belong in one of the categories.  This is a prudent intermediary option. 

A few things to keep in mind ….

  • Make sure to note that any changes in policy are temporary and will sunset at a date certain or when the crisis subsides.
  • Keep your union in the loop.  In emergency situations, employers are allowed to make unilateral changes to mandatory subjects of bargaining (such as leaves) without finishing bargaining first.  But when making changes to policies such as use of sick leave, make sure your union is notified of your changes and given the opportunity to request to bargain.  If necessary, bargaining can commence while your policy is already in place.
  • Check your collective bargaining agreements.  Many CBAs include sick leave articles.  If your jurisdiction is planning on not adhering to the terms of the agreement (for instance not requiring medical verification for use of sick leave), it is best to alert the union and get their agreement first.  Unions likely will not push back on employers making a policy more employee-friendly, but better safe than sorry.  Again, be sure to communicate that the policy is temporary and is not intended to impact the employer’s ability to enforce the provision in the future.

Finally, as a reminder, under Oregon’s Sick Time law, employers must allow employees to use sick time in public health emergencies for the following reasons:

  • Closure of the employee’s place of business, or the school or place of care of the employee’s child, by order of a public official due to a public health emergency;
  • A determination by a lawful public health authority or a health care provider that the presence of the employee or the family member of the employee in the community would jeopardize the health of others; or
  • The exclusion of the employee from workplace under any law or rule that requires the employer to exclude the employee from the workplace for health reasons.

Additional Resources

LOC COVID-19 Resource Center for Local Leaders
Digital Meeting Resources
CDC:  https://www.cdc.gov/coronavirus/2019-ncov/index.html
OHA:  https://www.oregon.gov/oha/pages/index.aspx
OEM:  https://www.oregon.gov/OEM/Pages/default.aspx