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Urgent Updates
What can I do as mayor to advocate on behalf of my community
to receive federal funds to combat COVID-19?
As we’ve reported in past updates, the federal government
allocated $150 billion in federal aid to states and local governments over
500,000 in population. Money was directly allocated to those
cities and counties over 500,000 for the purposes of aiding in COVID-19
related expenses that were not budgeted for and incurred before the end of
the year. What about the majority of cities that do not meet that
population threshold but have real costs either directly related to
fighting COVID-19 or losses in revenue due to distressed economic
factors?
The State of Texas will receive over $8 billion and our
understanding is that the governor is working to establish a program for
the distribution of a portion of those funds for cities under 500,000.
Please join mayors from across Texas in urging the governor
to establish a program to provide funding to cities for combating COVID-19,
including the ability to use those funds in the most flexible manner
allowed. If you would like to have your name included in this letter to the governor, email JJ Rocha at jj@tml.org by Thursday (May 7)
at 10:00 a.m. with the mayor’s digital signature.
Did the governor issue a new executive order to follow up on
the “clarifications and modifications” he made at his May 5 press
conference?
Yes. At a press conference yesterday (May 5), the
governor announced “clarifications and modifications” regarding the
executive orders issued last week. We summarized his verbal
explanations in the May 5 update. As a follow-up to his verbal
explanations, he issued written guidance in the form of a new executive order and a press release last night. (We’ve been told by the
governor’s office that it is GA-21, but it’s not officially posted as such
on his website. It’s referred to here for now as “the new executive
order.”)
What does the new executive order provide?
As with previous executive orders, the newest order maintains the stay home/work home
provision:
“In accordance with guidance from DSHS Commissioner Dr.
Hellerstedt, and to achieve the goals established by the President to
reduce the spread of COVID-19, every person in Texas shall, except where
necessary to provide or obtain essential services or reopened services,
minimize social gatherings and minimize in-person contact with people who
are not in the same household.”
(Emphasis added.) The highlighted language means that
Texans should stay home/work home, unless (while following DSHS/CDC prevention guidelines):
-Accessing essential businesses (as defined by TDEM and the U.S. Department of Homeland Security).
-Accessing “re-opened services” as listed in the order. In addition to services
already re-opened by previous order, the following are added to the list:
-Wedding venues and the services required to conduct
weddings; provided, however, that for weddings held indoors other than at a
church, congregation, or house of worship, the facility may operate at up
to 25 percent of the total listed occupancy of the facility.
-Wedding reception services, for facilities that
operate at up to 25 percent of the total listed occupancy of the facility;
provided, however, that the occupancy limits do not apply to the outdoor
areas of a wedding reception or to outdoor wedding receptions.
-Starting on Friday, May 8, 2020, the following are added to
the list:
a. Cosmetology salons, hair salons, barber shops, nail
salons/shops, and other establishments where licensed cosmetologists or
barbers practice their trade; provided, however, that all such salons,
shops, and establishments must ensure at least six feet of social
distancing between operating work stations.
b. Tanning salons; provided, however, that all such
salons must ensure at least six feet of social distancing between operating
work stations.
c. Swimming pools; provided, however, that (i) indoor
swimming pools may operate at up to 25 percent of the total listed
occupancy of the pool facility; (ii) outdoor swimming pools may operate at
up to 25 percent of normal operating limits as determined by the pool operator;
and (iii) local public swimming pools may so operate only if permitted by
the local government.
-Starting on Monday, May 18, 2020, the following are added
to the list:
a. Services provided by office workers in offices
that operate at up to the greater of: (i) five individuals; or (ii) 25
percent of the total office workforce; provided, however, that the
individuals maintain appropriate social distancing.
b. Manufacturing services, for facilities that
operate at up to 25 percent of the total listed occupancy of the facility.
c. Gyms and exercise facilities and classes that
operate at up to 25 percent of the total listed occupancy of the gym or
exercise facility; provided, however, that locker rooms and shower
facilities must remain closed, but restrooms may open.
In addition, the order allows (while following DSHS/CDC prevention guidelines):
-Attending religious services according to attorney
general’s guidelines.
-Participating in “essential daily activities,” such as
going to the grocery store or gas station; providing or obtaining other
essential or reopened services; visiting swimming pools, parks, beaches,
rivers, or lakes; hunting or fishing; or engaging in physical activity like
jogging, bicycling, or other outdoor sports.
According to the governor’s May 5 press release, “these newly opened services are subject
to recommended minimum standard health protocols outlined by
DSHS. These protocols will be available on the Open Texas webpage.”
Does the new executive order provide additional guidance as
to occupancy limits?
Yes. In an attempt to alleviate confusion under prior
orders, the new executive order expressly defines occupancy in this
way: “the total listed occupancy limits described above refer to the
maximum occupant load set by local or state law, but for purposes of this
executive order, staff members are not included in determining operating
levels except for non-essential manufacturing service providers and
services provided by office workers.”
In addition, re-opened businesses may operate at up to 50
percent (as opposed to 25 percent) capacity in rural Texas counties that
meet certain requirements and have certified that to the Department of State Health
Services.
What activities does the new executive order expressly
prohibit?
The new executive order provides that:
-People shall avoid visiting bars, massage establishments,
tattoo studios, piercing studios, sexually oriented businesses, or
interactive amusement venues such as bowling alleys, video arcades,
amusement parks, water parks, or splash pads, unless these enumerated
establishments or venues are specifically added as a reopened service by
proclamation or future executive order of the governor.
-In accordance with the Guidelines from the President and
the CDC, people shall not visit nursing homes, state supported living
centers, assisted living facilities, or long-term care facilities unless to
provide critical assistance as determined through guidance from the Texas
Health and Human Services Commission (HHSC).
-In accordance with the Guidelines from the President and
the CDC, schools shall remain temporarily closed to in-person classroom
attendance by students and shall not recommence before the end of the
2019-2020 school year.
Does the new executive order supersede local orders?
Yes, according to the new executive order’s plain superseding language, which
provides in part that:
“This executive order shall supersede any conflicting order
issued by local officials in response to the COVID-19 disaster, but only to
the extent that such a local order restricts essential services or reopened
services allowed by this executive order, allows gatherings prohibited by
this executive order, or expands the list of essential services or the list
or scope of reopened services as set forth in this executive order. I
hereby suspend Sections 418.1015(b) and 418.108 of the Texas Government
Code, Chapter 81, Subchapter E of the Texas Health and Safety Code, and any
other relevant statutes, to the extent necessary to ensure that local
officials do not impose restrictions in response to the COVID-19 disaster
that are inconsistent with this executive order, provided that local
officials may enforce this executive order as well as local restrictions
that are consistent with this executive order.”
What does that mean? Opinions vary substantially, but
it would seem to indicate that a city’s order may not restrict how a
business classified as essential or expressly re-opened by the order
operates any more than the order (which incorporated DSHS/CDC prevention
guidelines) does. And it would seem to indicate that a city order may
not open a business that is not classified as essential, re-opened, or part
of an essential activity.
Does the new executive order expressly supersede local
mask/face covering mandates?
Yes. The new executive order provides that “Individuals are
encouraged to wear appropriate face coverings, but no jurisdiction can
impose a civil or criminal penalty for failure to wear a face
covering.”
Can a business (or a city as the owner of a facility)
require a customer to adhere to additional hygiene measures?
Yes. The new executive order provides that “Nothing in this
executive order or the DSHS minimum standards precludes requiring a
customer wishing to obtain services to follow additional hygiene
measures.” Presumably, that means a business could mandate the wearing
of a mask/face covering to enter.
The provision appears to be directed at private businesses
and their customers, but it’s reasonable to assume that a city could rely
on it to impose additional requirements for residents accessing city
facilities, like bill payment, libraries, etc.
Of course, one method of enforcement is probably criminal
trespass, which could be preempted by the language in the question above
stating that “no criminal penalty” may be imposed for the failure to wear a
face covering. However, the prohibition on civil or criminal penalties
does not seem to directly prohibit a city from denying service—acceptance
of bill payment for example—to those not in compliance. The
imprecision of the order’s language in this area will certainly be tested
in practice.
What guidance relating to high school graduations has been
released?
According to the governor’s press release yesterday (May 5):
“TEA Commissioner Morath also provided new guidance on class
of 2020 graduation ceremonies for Texas school districts. The TEA is
providing four different pathways for schools to celebrate their graduating
seniors, and each district is at liberty to determine if any of these
options best serve the needs and desires of their community:
-Completely virtual ceremonies that take place
entirely online, with the use of videoconference or other technologies.
-Hybrid ceremonies, which consist of a compilation of videos
of students being recognized in person as they celebrate graduation in
small groups.
-Vehicle ceremonies, in which students and their families
wait in their cars while other graduates are recognized one at time with
their families alongside them.
-Outdoor in-person ceremonies, which are currently
permitted for counties as follows: (1) between May 15 and May 31,
an outdoor ceremony may take place in a rural county that has an
attestation as described in the Governor’s Report to Open Texas that remains in
effect 7 days prior to the ceremony; and (2) an outdoor ceremony may take
place in any Texas county on or after June 1.
Full details of the TEA's graduation ceremony guidance can be found on the TEA website.”
Further Updates
What is the National League of Cities doing to advocate for
city funding in Congress?
Yesterday (May 5), NLC launched the “Cities Are Essential” campaign to help secure money in the next relief
package for cities, towns, and villages nationwide.
NLC is asking Congress for $500 billion in federal
aid over the next two years to help cities and counties,
regardless of size, respond to and recover
from COVID-19. The money would be split 50/50 with the
counties, with cities receiving $125 billion in the first year.
To learn more about the campaign, you can read this blog from the NLC President.
Has the Treasury Department issued additional CARES Act
funding guidance?
Yes. Late last night (May 5), the Treasury Department
released an updated FAQ document for the Coronavirus Relief Fund. According
to NLC, the most asked about FAQs include the following, which are
reprinted verbatim:
-Are recipients required to use other federal funds or
seek reimbursement under other federal programs before using Fund payments
to satisfy eligible expenses?
No. Recipients may use Fund payments for any expenses
eligible under section 601(d) of the Social Security Act outlined in the
Guidance. Fund payments are not required to be used as the source of
funding of last resort. However, as noted below, recipients may not use
payments from the Fund to cover expenditures for which they will receive
reimbursement.
-The Guidance states that the Fund may support a
"broad range of uses" including payroll expenses for several
classes of employees whose services are "substantially dedicated to
mitigating or responding to the COVID-19 public health emergency."
What are some examples of types of covered employees?
The Guidance provides examples of broad classes of employees
whose payroll expenses would be eligible expenses under the Fund. These
classes of employees include public safety, public health, health care,
human services, and similar employees whose services are substantially
dedicated to mitigating or responding to the COVID-19 public health
emergency. Payroll and benefit costs associated with public employees who
could have been furloughed or otherwise laid off but who were instead
repurposed to perform previously unbudgeted functions substantially
dedicated to mitigating or responding to the COVID-19 public health
emergency are also covered. Other eligible expenditures include payroll and
benefit costs of educational support staff or faculty responsible for
developing online learning capabilities necessary to continue educational
instruction in response to COVID-19-related school closures. Please see the
Guidance for a discussion of what is meant by an expense that was not
accounted for in the budget most recently approved as of March 27, 2020.
-Would providing a consumer grant program to prevent
eviction and assist in preventing homelessness be considered an eligible
expense?
Yes, assuming that the recipient considers the grants to be
a necessary expense incurred due to the COVID-19 public health emergency
and the grants meet the other requirements for the use of Fund payments
under section 601(d) of the Social Security Act outlined in the Guidance.
As a general matter, providing assistance to recipients to enable them to
meet property tax requirements would not be an eligible use of funds, but
exceptions may be made in the case of assistance designed to prevent
foreclosures.
-May recipients create a "payroll support
program" for public employees?
Use of payments from the Fund to cover payroll or benefits
expenses of public employees are limited to those employees whose work
duties are substantially dedicated to mitigating or responding to the
COVID-19 public health emergency.
-May recipients use Fund payments to provide emergency
financial assistance to individuals and families directly impacted by a
loss of income due to the COVID-19 public health emergency?
Yes, if a government determines such assistance to be a
necessary expenditure. Such assistance could include, for example, a
program to assist individuals with payment of overdue rent or mortgage
payments to avoid eviction or foreclosure or unforeseen financial costs for
funerals and other emergency individual needs. Such assistance should be
structured in a manner to ensure as much as possible, within the realm of
what is administratively feasible, that such assistance is necessary.
-May Fund payments be used to replace foregone utility
fees? If not, can Fund payments be used as a direct subsidy payment to all
utility account holders?
Fund payments may not be used for government revenue
replacement, including the replacement of unpaid utility fees. Fund
payments may be used for subsidy payments to electricity account holders to
the extent that the subsidy payments are deemed by the recipient to be
necessary expenditures incurred due to the COVID-19 public health emergency
and meet the other criteria of section 601(d) of the Social Security Act
outlined in the Guidance. For example, if determined to be a necessary
expenditure, a government could provide grants to individuals facing
economic hardship to allow them to pay their utility fees and thereby continue
to receive essential services.
What are the governor’s “surge response teams?”
During the governor’s May 5 press conference, TDEM Chief
Kidd and Health and Human Services Commissioner Wilson provided details on
the newly formed “Surge Response Teams.”
According to the governor’s press release:
“These teams are led by TDEM and HHSC and include
representatives from the Texas Military Department, DSHS, the Texas
Emergency Medical Task Force, and BCFS Health and Human Services. Surge
Response Teams will serve nursing homes, prisons, packing pants, and other
facilities that experience flare ups of COVID-19 by providing personal
protective equipment, testing supplies, onsite staffing, and assessment
assistance. These teams will also work with local officials to establish
health and social distancing standards to contain these flare ups. Several
Surge Response Teams have already been deployed to locations across the
state.”
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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