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Apr 08

April 8, 2020 TML Coronavirus Update #18

Posted on April 8, 2020 at 4:16 PM by TML Staff

Urgent Updates


Does the governor’s disaster order affect golf courses?


Yes. We reported yesterday (April 7, 2020) that the governor’s state parks closure doesn’t affect municipal parks. That remains generally true. However, the governor stated yesterday on a call with county judges and mayors across the state that golf course employees don’t provide essential services under his existing order. The argument all along for golf courses staying open wasn’t that they are essential services. Rather, it was the exception for essential daily activities found in the governor’s order:


“This executive order does not prohibit people from accessing essential services or engaging in essential daily activities, such as going to the grocery store or gas station, providing or obtaining other essential services, visiting parks, hunting or fishing, or engaging in physical activity like jogging or bicycling, so long as the necessary precautions are maintained to reduce the transmission of COVID-19 and to minimize in-person contact with people who are not in the same household.”


League staff reached out to the governor’s office for clarification, and his office reiterated that the golf course operations (pro shop, café, tee time scheduling, golf carts, etc.) are not “essential services” and thus may not remain open. We were also reminded that, according to the attorney general’s office, a mayor can seek clarification about the governor’s order.  Of course, city officials should always remember that the attorney general’s office does not represent your city. Your city attorney does that, and should always be the final word on advice related to your city. If your city decides to submit a question to the attorney general, please copy


The bottom line appears to be that golf course offices and operations should now be closed, although a city could allow people to use a course for walking or jogging. Could the city just allow golfing without employees present? That’s unclear, but probably would pose enough logistical problems to make it impractical. Certainly, a city that allows the use of a golf course for any activity should ensure the safety of patrons. Beyond golf courses, each city decides whether to close all or a portion of its parks.


Do we have to competitively bid the purchase of Personal Protective Equipment (PPE) for first responders during the Coronavirus disaster and how does that relate to possible FEMA reimbursement?


Chapter 252 of the Texas Local Government Code requires a city to competitively procure purchases that exceed $50,000. However, Section 252.022(a) provides various exceptions to that requirement, including:


-a procurement made because of a public calamity that requires the immediate appropriation of money to relieve the necessity of the municipality's residents or to preserve the property of the municipality.

-a procurement necessary to preserve or protect the public health or safety of the municipality's residents.

-a procurement of items that are available from only one source.


The above would allow a city council to forgo competitive procurement required by state law for PPE, assuming the purchase fit into one of the listed exceptions.  Home rule cities should also check their charter, and any city should also check their local purchasing policies, for more restrictive requirements. 


Of course, how the state law exemption interacts with FEMA reimbursement (and any accompanying competitive procurement requirements) is a critical issue. Those rules are very complex, and each city should carefully review with local legal counsel. The League has posted a summary of the FEMA reimbursement requirements, and FEMA has also issued specific guidance related to emergency purchases and reimbursement.


Very generally, the guidance provides that a city need not comply with the usual federal procurement requirements associated with reimbursement when a public exigency or emergency exists. However, the city must document its justification for using noncompetitive procurements and must still comply with other procurement requirements and ensure that costs are reasonable. Further, the guidance provides that:


“Use of the public exigency or emergency exception is only permissible during the actual exigent or emergency circumstances. Exigency or emergency circumstances will vary for each incident, making it difficult to determine in advance or assign a particular time frame when noncompetitive procurements may be warranted. Exigent or emergency circumstances may exist for two days, two weeks, two months, or even longer in some cases. Non-state entities must ensure that work performed under the noncompetitively procured contracts is specifically related to the exigent or emergency circumstance in effect at the time of procurement. Importantly, because the exception to competitive procurement is available only while the exigent or emergency circumstances exist, non-state entities should, upon awarding a noncompetitive contract, immediately begin the process of competitively procuring similar goods and services in order to transition to the competitively procured contracts as soon as the exigent or emergency circumstances cease to exist.


The key with FEMA reimbursement is to document, document, document. 


Further Updates


Does Congress plan additional stimulus measures for local governments, businesses, and taxpayers?


Yes. Congress is contemplating a fourth stimulus package, which would follow the passage of the Coronavirus Aid, Relief, and Economic Security (CARES) Act.


You may recall that the Coronavirus Relief Fund, authorized under the CARES Act, does not address the increases in spending, or shortfall in revenues, faced by a majority of cities (including those with a population of 500,000 or less). The CARES Act provides funds directly to units of local government with a population that exceeds 500,000.


Yesterday, Congressman Joe Nuguse (D-Colorado) introduced the Coronavirus Community Relief Act to provide a separate $250 billion stand-alone fund for COVID-19 related costs for communities with fewer than 500,000 residents.


We encourage you to contact your member of Congress to show your appreciation for their leadership on the CARES Act and encourage the passage of the Coronavirus Community Relief Act. We specifically ask that you encourage your Congressperson to support the following:


-A stabilization fund for ALL cities and towns. All cities across Texas, regardless of population, must have direct access to stabilization funds for local budget relief. If a population threshold is unavoidable, local governments must be permitted to apply jointly to meet that threshold. 

-A fix for the unfunded mandate in the Families First Coronavirus Response Act (FFCRA), that prevents governmental employers from receiving federal tax credits to offset the cost of providing additional paid emergency leave. Most employers will be fully reimbursed for complying with FFCRA requirements. However, this is not the case for local governments. Sections 7001(e)(4) and 7003(e)(4) prohibit local governments from receiving the tax credits that most other employers, whether non-profit for for-profit, get. Therefore, the cost of this additional leave will be fully borne by local governments despite the additional budgetary challenges already present as a result of COVID-19.


What additional COVID-19 resources are available from the National League of Cities?


NLC has prepared the following:


-A COVID-19 Response Resources for Local Leaders web page and a state league COVID-19 resource web page

-A webinar on Thursday, April 9, at 1:00 p.m. (CDT) called COVID-19: How to Support People Experiencing Unsheltered Homelessness

-Prepared “CitiesSpeak” blogs on various issues, such as:

Moving City Council Meetings Online in Response to COVID-19

How to Identify Your Community's Essential Workers in Local Quarantine Orders

Seeking FEMA Assistance to the COVID-19 Pandemic

What's the Difference Between Shelter in Place, Safer at Home, and Stay Home Orders?

The Deal is Done: How Much Can Cities Expect from the 3rd Coronavirus Package?