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Urgent Updates
Does the governor’s new executive order contain anything
related to mayoral approval of outdoor gatherings?
No. The newest order (GA-34) “supersedes” (i.e., takes the place of) previous
orders, such as GA-32, requiring mayoral approval of certain outdoor
gatherings. The newest order makes no mention of such a requirement. League
staff has confirmed that the governor intended GA-34 to do away with the
requirement that a mayor approve of outdoor gatherings, as provided in
previous orders.
What authority does a city have to require pandemic mitigation
measures on city property, in city facilities, or by city employees?
Executive Order GA-34 supersedes certain city regulatory
authority (e.g., the authority to require city residents or businesses to
adhere to pandemic mitigation measures, such as business closures, occupancy
limits, or mask mandates). However, as with previous orders, GA-34 provides
that “Nothing in this executive order precludes businesses or other
establishments from requiring employees or customers to follow additional
hygiene measures, including the wearing of a face covering.”
Merriam-Webster defines “establishment” as “a public or
private institution.” A city is clearly a public institution, meaning it
retains control over and may require pandemic mitigation measures on its
property, in its facilities, and by its employees. Of course, GA-34 prohibits
confinement in jail as a penalty, so the appropriate remedy for a citizen who
violates such a requirement may be to escort them off the premises. For
employees, the remedy may be disciplinary action.
Some cities’ rules regarding its own property will likely be
tested in practice, which makes consultation with your city attorney
imperative. Remember that a mayor can ask questions of the attorney general related to the
pandemic orders.
What is the status of the suspended Open Meetings Act
provisions?
The letter from the governor’s office provides that the Open
Meetings Act 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 governor’s staff assured the League that he intends to continue
successively extending his 30-day COVID-19 disaster declaration because it is
needed to ensure eligibility for federal assistance, among other
things.
That means the coinciding Open Meetings Act suspensions should continue for the
foreseeable future. (Even if he decides to independently end the suspensions,
his staff assures the League that he will give ample notice of that
action.)
On February 4, the governor’s office last extended the
disaster declaration (and the Open Meetings Act suspensions) for another 30
days. That declaration expires March 5. But there’s no need to worry
because we are confident he will renew it by then. If you’d like to
confirm, look to the “Proclamation” page of www.gov.texas.gov. (Click “News” at the top of the page,
and then “Proclamation” on the right side of that page.)
While they don’t replicate the suspensions exactly, several
bills have been filed thus far relating to videoconference and
teleconferencing. For example:
S.B. 639 (Menéndez) – Open Meetings: would:
(1) provide that, without regard to whether a member of the governmental body
is participating in a meeting from a remote location by telephone conference
call, a governmental body may allow a member of the public to speak at a
meeting from a remote location by telephone conference call; (2) provide
that, when a member of a governmental body loses audio or video during a
videoconference meeting, the meeting may continue when a quorum of the body
remain audible and visible to each other and, during the open portion of the
meeting, to the public; (3) allow a meeting by videoconference so long as the
presiding officer is present at a physical location open to the public where
members of the public may observe and participate in the meeting; (4) set out
the notice requirements for a videoconference meeting; and (5) provide that,
without regard to whether a member of the governmental body is participating
in a meeting from a remote location by videoconference call, a governmental
body may allow a person to speak at a meeting from a remote location by
videoconference call. (Companion bill is H.B. 2560 by Martinez.)
H.B. 1888 (Fierro) – Open Meetings: would:
(1) authorize a governmental body to hold an open or closed meeting by
conference call; (2) define “conference call” to mean a meeting held by
telephone conference call, videoconference call, or telephone conference and
videoconference call; (3) require that each part of a meeting held by
conference call required to be open to the public shall: (a) be audible
to the public; (b) be visible to the public if it is a videoconference
call; and (c) have two-way communication with each participant; (4)
provide that a member or employee of a governmental body may participate in a
meeting by conference call only if the audio signal of the participant is
heard live at the meeting; (5) provide that a member of a governmental body
who participates in a meeting by conference call shall: (a) be counted
as present at the meeting for all purposes; and (b) be considered absent from
any portion of the meeting during which audio communication with the member
is lost or disconnected, but allow the governmental body to continue the
meeting if a quorum of the body continues to participate in the meeting; (6)
provide that a governmental body may allow a member of the public to testify
at a meeting by conference call; (7) provide that a meeting held by
conference call is subject to the notice requirements applicable to other
meetings and also must include certain instructions to the public; (8)
require that a meeting held by conference call be recorded, and that the
recording be made available to the public; and (9) require the Department of
Information Resources by rule to specify minimum standards for the recording
of a meeting held by conference call.
League staff summarizes each city-related bill in the Legislative Update Newsletter, which is included
in your Friday “TML Exchange” email. The bills are categorized by subject
matter.
For the current legislative session, we’ve added the new
subject heading of “Emergency Management.” Many pandemic-related bills will
show up in that section, with some falling under other headings, such as Open
Government, Public Safety, etc. Also, a complete list of bills filed to date
by subject matter is updated each week. To view it, go to www.tml.org, hover over “policy” at the top of the page,
and click on “legislative information.”
Further Updates
Does a city have liability to a person who contracts the virus
at a city facility if the city doesn’t adopt pandemic mitigation measures,
such as distancing or face covering requirements?
While hypothetical liability questions are notoriously
difficult to answer, most city attorneys agree that the chance of a
successful claim against a city is slim. Cities generally have immunity
under state law, and it’s difficult to imagine many possible COVID-19
scenarios in which that immunity would be waived. The same goes for federal
claims, which typically require an action by a city employee for liability to
attach.
Regardless, both state and federal officials have shown
interest in adopting liability protections (presumably including protections
for governmental entities). For instance, in Governor Abbott’s recent “State
of the State” speech, he laid out several priority items. The key
pandemic-related items were expanded broadband and liability protections for
business. Whether any state or federal liability protections will ultimately
be adopted is not yet known.
What’s the latest regarding future stimulus legislation?
Last Saturday (February 27), the United States House of
Representatives passed H.R. 1319, the American Rescue Plan Act of 2021. The 594-page bill includes $350 billion in emergency relief for
states and local governments, and funding for housing, education, food and
nutrition, unemployment assistance, vaccines, COVID testing, and FEMA
assistance. The bill has moved to the Senate, where leaders there have
promised to take up the bill immediately.
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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