Over the past few weeks, our municipal clients have reached out to us with very important, thoughtful legal questions. MBM believes that all of our municipal contacts should have access to the answers, so our attorneys have consolidated those questions into the FAQ list you see below. We hope to send out a similar list every week throughout the pandemic. If you have any additional questions about the topics mentioned below, please don’t hesitate to reach out.
Last Updated: June 1, 2020
- May a municipality satisfy the requirements of Act 15 by recording a meeting and playing it back later?
While Act 15 does not specify exactly how a public meeting should be broadcast to the public, previous guidance from the Office of Open Records required that virtual meetings be broadcast live, not recorded for future broadcast. There is nothing in Act 15 which contradicts this guidance. We continue to recommend some means of live viewing of public meetings be provided, whether that is directly through Zoom or through a simultaneous livestream of the meeting on some other platform.
- Are municipalities required to resume building inspections following the May 1st restart of construction?
On May 1st, Governor Wolf’s previous order banning construction in Pennsylvania will be lifted, and construction may resume under the new social distancing guidelines from the state. Municipalities may resume issuing building permits and resume inspections at that time, however, in doing so they must continue to abide by the social distancing rules issued by the state on April 15, 2020. To the extent possible, permits should be applied for and issued online, and during in person inspections, masks should be worn and all other individuals should be absent from the site. It is possible that interior inspections may be achieved via “virtual” inspections in which the inspector will view the structure through a tablet carried through the building.
- Can a taxing district provide both an extension of the discount period and waive penalties and fees for late payment, or must it choose one option or the other?
A taxing district may: enact both of these options, choose to exercise only one of these options, or choose to enact neither of the options. It may extend collection of real estate taxes at the discount rate until August 31, 2020, and it may also waive any penalties or fees associated with the late payment of the tax if the tax is paid in full by December 31, 2020.
- Under the newly enacted Act 15, are municipalities permitted to keep the current deadline to pay taxes at discount for mortgage companies and commercial businesses but extend the discount period for individuals who are able to establish that their ability to pay has been impacted by COVID-19?
No, there is nothing in Act 15 that permits a municipality to establish different deadlines to pay at discount for different taxpayers. The municipality has the option to maintain its current discount deadline for all taxpayers or extend the deadline for all taxpayers. Treating taxpayers differently would still create constitutional concerns under the uniformity clause.
- What is the deadline under Act 15 to adopt a Resolution for tax changes?
Act 15 requires that the Resolution be adopted and provided to the local tax collector within 30 days from the effective date of Act 15. Since Act 15 was signed by Governor Wolf on April 20 and took effect immediately, the Resolution must be adopted no later than May 20. Since many municipalities have gone to only one virtual public meeting a month, if your public meeting falls after May 20, a special meeting would have to be advertised and held prior to May 20 to adopt the Resolution.
6. Can a finance authority hold a remote meeting pursuant to Act 15 of 2020?
Yes. Act 15 of 2020 has authorized remote meetings for an “agency, department, authority, commission, board, council, governing body or other entity of a political subdivision included in a declaration of disaster emergency.” So, any authority chartered by a municipality may utilize a remote meeting under this provision, including a finance authority.
7. Can a municipal authority raise rates without a public meeting due to the COVID emergency?
No. While the emergency declaration allows for certain purchasing and bid requirements to be relaxed to meet the emergency needs of a municipal authority, there is nothing in the act which overrides the ordinary budget process of the Municipal Authorities Act. Rates must be set at a public, advertised meeting, as always.
8. If written public comment is accepted prior to the public meeting, does Act 15 permit the municipality to not provide electronic access for live public monitoring of the meeting, but rather record the meeting and then post it for the public to access at a later time?
No, there is nothing in Act 15 that authorizes a municipality to not provide live access for the public to monitor the virtual public meeting. Recording a meeting that is closed to the public and then posting it for public access at a later time is subject to abuse and challenge that the recording was edited or did not capture the entire meeting. Although Act 15 created limited exceptions during a declared emergency, those exceptions should be applied narrowly to not defeat the transparency principles underlying the Sunshine Act. Guided by those transparency principles, the Office of Open Records’ guidance is that “unless it is actually impossible to do so,” public participation through the teleconferencing or videoconferencing system is “essentially required.”
9. Is a municipality required to keep a recording of its public meeting available after the meeting concludes?
While the original OOR guidance stated that municipalities should make the recording of its meeting available after the conclusion of the meeting, said guidance has been superseded by Act 15, which includes no such requirement. Therefore, a municipality may keep a recording of a virtual meeting, but it is not required to do so.
10. Can a municipality be sued under the ADA for implementing a temperature check policy?
When a pandemic is declared by the CDC, ADA rules that typically do not permit an employer to enquire into the health status of an employee are relaxed. We recommend that municipalities follow the guidelines of the CDC and the Pennsylvania Department of Health in order to avoid potential liability under the ADA or for failure to provide a safe workplace.
11. Can our governmental entity hold live meetings now that our County has been moved to “yellow” status?
School Districts and Municipalities can now hold live, in-person meetings (subject to social distancing and health guidelines), so long as there are only 25 or fewer people in the meeting place. From a practical standpoint, in order to ensure full compliance with the Pennsylvania Sunshine Act, it is strongly recommended that the governmental entity provide some method by which members of the public who are prohibited from attending the meeting due to the capacity restriction can listen to or view the proceedings. Additionally, if a governmental entity chooses to allow a limited amount of members of the public into the physical meeting location, it is strongly recommended that the governmental entity devise a legitimate, non-discriminatory method of choosing which individuals are permitted entry. Examples of such methods include a lottery system or a first-come, first serve sign up system. The governmental entity must still publish its agenda prior to the meeting and accept public comment in real time or via written communication prior to the meeting.
12. What are the repercussions if a municipality allowed businesses located in the municipality to reopen, without waiting for the Governor’s Order to take effect to transition to “yellow” status and then to “green” status? What if the businesses reopened on their own?
Until such time as your County is upgraded to “yellow” status on May 15 or some other date, only those businesses which are classified as “life-sustaining” or those which have been specifically permitted under the government’s orders, are still able to be open. Any establishment transacting business in violation of these orders, such as a restaurant, bar or social club offering on premises dining or consumption for example, would be subject to citation and potential suspension or revocation of their liquor license or other licenses to operate. Limited drive thru, pick up or delivery of meals is permitted subject to the guidelines. Businesses should continue to comply with the Governor’s directives. Also, the municipality should not take any official action to open or permit businesses to operate in violation of the Governor’s Order.
13. What obligations are imposed on municipalities to protect its returning employees from exposure to COVID-19 when recalled to work?
As a best practice, the municipality should undertake and, most importantly, document the following steps, as suggested by OSHA:
- Assess the level of risk of COVID-19 exposure for each of their employees based on OSHA’s employee exposure chart;
- Train employees about and enforce rules/policies pertaining to proper workplace sanitation and hygiene;
- Assess and provide employees with appropriate Personal Protective Equipment;
- Assess and implement appropriate administrative controls;
- Assess and implement appropriate engineering controls; and
- Investigate and address, if necessary, internal complaints from employees about alleged workplace hazards.
Simply put, it is imperative for a municipality to demonstrate its good faith efforts to reduce or eliminate COVID-19 hazards in the workplace. Documentation and implementation of these efforts is the key to demonstrating why it is unreasonable for an employee to refuse to return to work.
14. May baseball and other team sports resume under the yellow classification?
No. Guidance from the Governor’s office has indicated that all organized outdoor activities, including team sports, are not permitted during the yellow phase of re-opening.
15. In the yellow phase, can municipal buildings reopen to the public?
While the Governor has put out no specific guidance regarding municipal buildings, based on the fact that retail operations are now allowed in the yellow zone, it is reasonable to assume that a municipal building may be opened provided that the PA Department of Health social distancing and sanitizing procedures are followed. If your municipal building cannot accommodate these rules, then we recommend that you remain closed. The yellow phase allows for facilities to open, but does not mandate it.
16. In returning to live meetings now that our County has been moved to “yellow” status, what is the best way to do so to permit full public access when gatherings are still limited to 25?
Municipalities can now hold live, in-person meetings (subject to social distancing and health guidelines). In some cases, the number of Officials could account for much of the 25-person gathering limit. In those situations, it may be best to have only the public officials attend in person and have the public participate remotely. To accomplish this, in-person attendees must login to the “remote” portion of the meeting on their devices or the meeting and in-person attendees must be captured on a live video/audio feed to ensure that the public participating remotely can still hear and see them. If you still would like to have live attendance by the public, it is strongly recommended that you have a legitimate, non-discriminatory method of choosing which individuals are permitted entry. Examples of such methods include a lottery system or a first-come, first serve sign up system. As long as any portion of the meeting is still remote, you must still publish the agenda prior to the meeting and accept public comment in real time or via written communication prior to the meeting.
17. What is the practical effect of the Governor’s order transitioning to “Green” status as part of the re-opening plan?
With the recent transition to “green” status as part of the Governor’s plan to re-open the state, municipalities will see a diminishment of many of the restrictions that had been previously imposed. Municipalities may consider some of the following information as they begin to return normal operations:
- Although teleworking is still encouraged where possible under “green” status, a municipality could resume administrative office operations, subject to social distancing protocols.
- Under “green” status, large gatherings of up to 250 individuals are now permitted, subject to maintenance of social distancing guidelines. Municipalities who hold large events over the summer, such as movie nights in the park, could still hold these gatherings subject to the 250 individual cap and enforcing social distancing protocols.
- Construction activities are permitted to return to full capacity while observing appropriate social distancing protocols. Public works projects may resume as well.
- The state references CDC guidelines for maintaining safety at public parks. Individuals should only attend parks which provide enough physical space to maintain social distancing protocols. The CDC recommends that playgrounds remain closed at this time. Pursuant to the governor’s guidelines, indoor recreational facilities must operate at 50 percent capacity. The CDC does not recommend that pools be closed completely, so long as appropriate social distancing can be maintained.
As mentioned, please don’t hesitate to contact us if you have any additional questions. And we welcome you to visit MBM’s COVID-19 Guidance and Resource Center, where we post important legal updates on a regular basis.
Stay safe and healthy.
