On Saturday, March 21, following a televised address to the public, California Governor Gavin Newsom signed Executive Order N-35-20 which expanded health care resources in the State and “allow[ed] local governments more flexibility to utilize the skills of retired employees and reinforce[ed] the importance of the delivery of food, medicine, and emergency supplies.” Key components of the Order that apply to local governments are discussed below.
Brown Act: Simultaneous or Serial Emergency Updates Permitted
The Order provides, notwithstanding any provision of the Brown Act or Bagley-Keene Act, that members of a local legislative body may receive updates “relevant to the declared emergency” from federal, state, and local officials. Such updates may be serial or simultaneous. Topics are relevant when they relate to, for instance, “updates concerning the impacts of COVID-19, the government response to COVID-19, and other aspects relevant to the declared emergency.” However, this is not an exclusive list of topics that may be considered relevant. Other topics may be discussed so long as they connect to the COVID-19 pandemic.
During such an update, members may ask questions and hear responses “to stay appraised of emergency operations and the impact of the emergency on this constituents.” However, members are expressly prohibited from taking action on any item or engaging in any discussion of matters, including matters related to the emergency, amongst themselves in a way that would violate the Brown Act. The same section of the Order provides that expanded permissions for teleconferencing of local agency meetings remain in place pursuant to N-29-20 (3/17/20). See our summary of N-29-20 here.
Suspension of Work Hour, Reinstatement, and Time Limitations Provides Expanded Staffing Opportunities
Previously-signed Executive Order N-25-20 (3/12/20) provided “consistent with federal law, work hour limitations for retired annuitants, permanent and intermittent personnel, and state management and senior supervisors are suspended.” Relevant state law was also suspended. Now, this provision is expanded to local governments “to ensure adequate staffing to appropriately respond to the COVID-19 pandemic.” In short, reinstatement limitations, work hour limitations, and time limitations are suspended for local government employers in order to provide access to a larger pool of healthy, skilled workers and maintain essential governmental functions. Any local government employing an individual pursuant to these waivers must notify the California Department of Human Resources. However, the form and timing to comply with this requirement is unclear at this time.
Suspension of Local Ordinance Enforcement to Allow Essential Goods Delivery
The Order states “any local ordinance, including those relating to noise limitations, is suspended to the extent it restricts, delays, or otherwise inhibits the delivery of food products, pharmaceuticals, and other emergency necessities distributed through grocery stores and other retail or institutional channels, including, but not limited to, hospitals, jails, restaurants, and schools.” This means that, to the extent enforcement of a local ordinance would inhibit delivery or distribution of these goods, a local government may not take action. The statement is broad in two ways: first, it prohibits any enforcement that would “restrict, delay, or otherwise inhibit” delivery. Second, the list of delivery recipients is not exhaustive; delivery may be to any place with a need for goods.
While broad in these senses, the Order does not expressly refer to conditions memorialized in use permits or other land use entitlements, nor does it refer to any other administratively-imposed limitations. Cities that have issued Proclamations of Local Emergency could likely use that local authority to suspend such conditions, if desired.
Government Claims Act Filing Deadline Extended 60 Days, Local Agency Response Deadline Remains 45 Days
The Government Claims Act, Government Code section 910 et seq., provides a claimant must generally present a claim within six months or one year of the injury, depending on the injury. A local agency must typically respond within 45 days. The Order extends the deadline to file a claim by 60 days. The same section of the Order provides “the time within which the Department of General Services may act upon such a claim is extended by 60 days.” There is no explicit extension, however, for a local agency to respond to a filed claim. At this time, local agencies should still respond to claims within within 45 days of receipt, but even if they do not respond, a claim is considered to be rejected by operation of law following the 45th day.
Construction Activities Allowed by the State Order
Construction activities are allowed under the state order, including residential, public works projects, and other types. Until yesterday afternoon, the state’s “Frequently Asked Question” website explained that “Depending on the conditions in each area, local officials may enforce stricter public health orders. But they may not loosen the state’s [shelter in place] order.” As of the publication of this legal alert, that section has been revised to read, “This [order] is in effect throughout the State of California”. The Order states that residents are to “heed any orders and guidance of state and local health officials,” but that the governor’s office has “put an overlay as the state, and we are answering this question in real time and working those examples that get granular,” Consequently, we do not have an express response to the question of preemption, but it is reasonable for cities to rely on stricter regulations as those are rooted in facts and scientific evidence.
Questions
Kronick attorneys across all of the firm’s practice groups – Natural Resources, Public Agencies, Labor & Employment, and Business/Healthcare – will continue to provide clients and the community with ongoing updates and advice regarding COVID-19 related issues as developments warrant. Please feel free to contact us for assistance with issues arising from the current health crisis.