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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 gencounsel@tml.org.
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?
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