To help our clients navigate the coronavirus (COVID-19) crisis, Keane & Beane is providing numerous Legal Alerts on a variety of issues. The information contained in this Legal Alert is applicable as of today, March 19, 2020. Many situations are so fact specific and nuanced that this Legal Alert only addresses some of the more pressing ongoing issues. The discussion below is therefore general and does not address all considerations and specific analyses that may need to be undertaken prior to taking action.
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In a tug-of-war between the state and local municipalities over the formulation of health and safety measures to combat COVID-19, which side prevails?
The question arises because the Governor’s Executive Order 202.5, which was issued on March 18, 2020, states in relevant part:
Notwithstanding section 24 of the Executive Law, no locality or political subdivision shall issue any local emergency order or executive order with respect to response of COVID-19 without the approval of the State Department of Health.
This directive is broader and far more emphatic than the language that appeared four days earlier in Executive Order 202.3, which merely sought to enjoin local governments from issuing any local emergency orders “inconsistent with, conflicting with or superseding” the directives set forth in said Executive Order (which had prohibited large gatherings, closed restaurants, etc.). The change appears to respond to ideas about taking more aggressive protective measures that were openly floated in some municipal quarters. Arguably, the Governor’s language in Executive Order 202.3 left the door open for some degree of interpretation, whereas Executive Order 202.5 plainly does not.
The answer lies in the New York State Constitution, which is the supreme law in New York. Municipal corporations derive their legislative authority and police power through the state, subject only to constitutional restraint. Absent a constitutional impediment, municipal corporations remain subordinate to the state.
The search for such authority leads to the municipal home rule provisions of the New York State Constitution, which are found in Art. 9, §§ 1-3. These provisions allow for the creation of local governmental entities, and grant such governments the power to enact local laws on a wide range of subjects – but not emergency orders. The authority to issue emergency orders in the event of a local emergency is found in a mere statute — NY Executive Law § 24. The final blow is delivered by NY Executive Law § 29-a, which states in relevant part:
Subject to the state constitution, the federal constitution and federal statutes and regulations, the governor may by executive order temporarily suspend any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency, if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster or if necessary to assist or aid in coping with such disaster. The governor, by executive order, may issue any directive during a state disaster emergency declared in the following instances: … epidemic, disease outbreak ….
That’s pretty strong medicine. In the face of Executive Order 202.5, municipalities must yield their authority to impose COVID-19 health and safety measures in the form of emergency orders or executive orders unless they first obtain approval from the New York State Department of Health. Nonetheless, municipalities remain free to administer their own operations, budgets, property and workforce (subject to mandatory workforce reductions for non-essential personnel) and continue to adopt and enforce other local laws (e.g., environmental, zoning and land use ordinances), as they see fit in light of how COVID-19 is affecting their community.
Prior Keane & Beane Covid-19 Legal Alerts
Keane & Beane, P.C. has prepared several Legal Alerts concerning the State’s response to COVID-19 and the impacts on local governments. Our Legal Alerts are available at the links below:
- Executive Order 202.4 – COVID-19: Reduction in Workforce By Municipalities
- Open Meetings Law in Light of COVID-19
- COVID-19 Issues for Municipalities
Consult Counsel Regarding Specific Questions
Given the fluidity of this rapidly developing situation, we encourage you to reach out to a member of the Keane & Beane Public Sector Practice Group with questions regarding specific situations. We note that there are legislative developments in Congress and New York which impact each of these questions, and which we are closely monitoring. Because of the frequent developments, you should consult counsel regarding specific questions. For questions on general municipal issues, contact Nicholas M. Ward-Willis, Eric L. Gordon or the other attorneys in our Public Sector Practice Group.