April 23rd – MPL Municipal Update

We want to give you a few important updates from this week.

Act 15 of 2020

On April 20, 2020, Governor Wolf signed Act 15 of 2020 into law.

  • The most significant aspect for municipalities relates to conducting public meetings remotely.
  • Act 15 codifies many of the accommodations and guidance previously set forth by the Office of Open Records.  In particular, Act 15 explicitly permits “hearings, meetings, proceedings or other business through the use of an authorized telecommunications device until the expiration or termination of the COVID-19 disaster emergency.”
  • An “authorized telecommunications device” is defined as “any device which permits, at a minimum, audio communication between individuals.”  This means that meetings may be conducted via conference call, provided that the public has an ability to call in and hear and be heard.
  • Act 15 further clarifies that meeting participants (such as boards of supervisors and borough councils) do not have to be physically present with each other to constitute a quorum.
  • Notice of these remote meetings should be given on the municipality’s website and/or in the local newspaper in “advance” “to the extent practicable”.  The notice should include the “date, time, technology to be used and public participation information”.  The law allows for notification on the website or the newspaper, but both are not required.
  • Public participation, “to the extent practicable” should “allow for public participation . . . through an authorized telecommunication device or written comments” (emphasis added).  In other words, it is permissible to allow for public comment to be given by way of having residents/guests of the meeting email to or drop off questions at the municipality.
  • Minutes taken at remote meetings held “without advance notice to the public” to address “any issue related to the . . . disaster emergency declaration related to COVID-19” must be “posted within 20 days after the meeting or before the next regularly scheduled meeting, whichever is earlier”.
  • There are additional details in Act 15 related to a municipality’s taking action on any “application, plat, plan or other submission for an approval or for an action on an appeal or curative amendment”.  For such applications, etc., “the number of days provided to satisfy statutory time limits in review, hearing and decision shall be suspended and tolled as of the date of the disaster or emergency declaration or as of the date received if received during the disaster or emergency declaration”.  Once the emergency declaration terminates, then the above-referenced “applications”, etc. must be dealt with within 30 days.  This aspect is a bit more detailed, so if you have any questions about handling these kinds of matter, please contact our office.
  • Act 15 is set to automatically expire upon the termination of the emergency declaration.

Here is a link to Act 15: https://www.legis.state.pa.us/cfdocs/legis/PN/Public/btCheck.cfm?txtType=PDF&sessYr=2019&sessInd=0&billBody=S&billTyp=B&billNbr=0841&pn=1623.  The municipal aspects of Act 15 can be found starting at “Subchapter E” on page 56.

Here is a link to the Office of Open Records for additional information on remote meetings: https://openrecordspennsylvania.com/2020/03/11/the-sunshine-act-and-covid-19/

Reopening PA

On April 22, 2020, Governor Wolf issued a press release outlining some details for reopening PA.  The Governor’s plan contains three “levels” of opening—red, yellow, and green.  The current state of emergency covers the entire commonwealth and is at the “red” level.  The existing plan is to begin moving certain counties and/or regions to “yellow” beginning May 8.  The first targeted areas for moving into the yellow level are in the north-central and north-west parts of PA.  The progression of the opening will be centered on on-going “social distancing, universal masking, and other public health guidance.”  The Governor’s office is working with Team PA, PA DOH, PEMA, the Department of Community and Economic Development, the Department of Labor & Industry, and others, to “develop guidance for businesses, local governments, workers, and customers with the goal of guiding a safe and iterative reopening process.”  Below are two links to give more details on the plans for re-opening.

https://www.governor.pa.gov/newsroom/gov-wolf-reopening-targeted-for-may-8-in-north-central-northwest/

https://www.governor.pa.gov/process-to-reopen-pennsylvania/

Re-opening Construction

You may also have been made aware that the Governor has announced lifting restrictions on construction work as early as May 1, 2020.  Construction work that had previously been deemed “non-essential” may resume working May 1.  Although the restriction on certain non-essential construction work will be lifted, strict social distancing and masking requirements will stay in force.  The greatest impacts of this change on municipalities is two-fold.  First, municipalities should prepare to see new building permit applications and requests for inspections.  Second, municipalities contracting with private contractors can now resume non-emergency projects beginning May 1.  Below are several links for additional information on construction openings:

https://www.pennlive.com/news/2020/04/construction-in-pa-can-begin-before-state-reopens-wolf-says.html

https://www.pennlive.com/news/2020/04/yes-all-construction-can-start-in-pa-on-may-1-but-strict-guidelines-will-need-to-be-followed.html

Penn Waste Customers

 

Penn Waste has implemented certain restrictions/modifications on trash and recycling collection practices.  Below is a list of those changes as published on its website (https://www.pennwaste.com/waste-management-resources/blog/new-collection-changes-take-effect-monday/):

  • All trash must be bagged and tied. If you’re in a municipality that has a mobile cart, all bags must be placed inside your mobile cart. Loose items will not be collected.
  • All recyclable materials must be placed inside your recycling container(s), including your flattened cardboard. Recyclable items left outside of your recycling container will not be collected.
  • We will enforce the bag and/ or cart limits as designated by your municipality. If you do not know what your limits are, you can check on our website by selecting your municipality on our municipality resource page – https://www.pennwaste.com/for-your-home/municipalities/.
  • Bulk item and yard waste collection is suspended until further notice. We are doing this so we can continue to focus all our efforts and personnel on trash and recycling collection.

Republic Services Customers

Republic Services has also implement similar (though less detailed) restrictions/modifications to trash and recycling collection practices.  Per Republic Services website (https://www.republicservices.com/coronavirus):

  • We will accept cart contents only. Drivers will not be authorized to leave their vehicles to pick up waste outside of the cart.
  • For customers who do not have carted service, we will accept waste placed in bags only. Bags cannot exceed 50 pounds.

If you believe that any of these changes violate your municipality’s contract with Penn Waste or Republic Services, feel free to contact our office to conduct a review of your contractual options.

Public Meetings

Last night we attended the first public meeting since all this began.  Social distancing was followed and everyone in the audience wore a face mask.  Face masks and hand sanitizer were provided at the front door.  Attendance was low.  The meeting was not a return to normal, but a step in that direction.  We also reviewed the legality ahead of the meeting.  Government services are considered a separate category of service that is allowed to continue during the shutdown.  Residents are allowed to leave home to access the government service.  So, in our opinion, whether or not to hold meetings has been left to the local government units.  We don’t condone public gatherings at this time, and we do have concerns about negligence or similar liability if an outbreak results from a meeting, but as a purely legal matter we do not believe municipal meetings are prohibited by the Pennsylvania Department of Health shutdown order.  The decision is left to your governing board.

 

I hope you find this information useful.  Stay safe and as always do not hesitate to contact Andy Miller amiller@mpl-law.com or Doug Myers dmyers@mpl-law.com with ay Covid-19 related questions.

April 18th- Municipal Law Update

Another week is behind us and everyone is getting antsy.  There is lots of talk about opening back up, but no real movement yet as far as we know.  Despite all the talk, some things seem to be moving the opposite direction.  As you are probably well aware, on April 15, 2020, Governor Wolf issued an Order requiring employees dealing directly with the public to wear masks.  Although the Governor’s office recommended municipalities comply to the extent possible, municipalities are exempt from the requirement to wear masks.

There are still some things to be doing in the meantime to plan ahead for the coming ramifications of the shutdown.  Most of you have incurred costs in response to Covid-19.  Now is the time to start thinking about reimbursement.  Many of you have will have a noticeable, if not drastic, slowdown in tax revenue.  Now is the time to do a monthly cash flow plan to determine how you will bridge any shortfalls in revenue over the next few months.  Some of you have loans with monthly payments.  Now is the time to think about deferral of principal and interest payments until your revenue starts to return to normal.  Below are some things to think about related to all three.

Emergency funding Relief from PEMA

PSATS recently held a virtual town hall to discuss the covid-19 situation that included a presentation from PEMA and updates on possible emergency funding relief for municipalities.  Below is a summary of key items presented:

  1. Any municipalities desiring to apply for emergency funding relief must complete the “Survey123” from the Pennsylvania Emergency Management Agency (“PEMA”).  If a municipality does not have the Survey123, they should contact the York County Emergency Management Coordinator as soon as possible to get the email and two attachments to fill out.  This will get the municipality on PEMA’s email list and give them notice of regular WebEx briefings from PEMA.  The WebEx briefings are designed to assist municipalities through the emergency funding process (which ultimately goes through the Federal Emergency Management Agency (“FEMA”)).
  2. The PEMA representative addressed a number of questions about what kinds of municipal costs would be eligible for FEMA funding and what kinds would not.  Below is a list of some of the expenses addressed:
    1. LIKELY TO BE ELIGIBLE: Expenses directly tied to combating the COVID-19 crisis are generally eligible for funding, such as the following:
      1. Purchasing personal protective equipment for employees (like medical masks)
      2. Overtime required for dealing with the COVID-19 crisis.  For example, if a police department needs extra officers to patrol an area because of closed businesses, the costs of that additional time is probably eligible.
    2. LIKELY TO BE INELIGIBLEIncreased operating expenses due to the COVID-19 disruption are generally not eligible for emergency funding from FEMA.  Some examples of likely ineligible expenses are the following:
      1. Upgrading computer equipment and/or software so employees can work from home.
      2. Extra time spent on normal tasks due to work disruptions/glitches (for example, if a part-time, hourly employee typically performs his/her duties in 15 hours per week, but now takes 20 hours to do the same work, the extra 5 hours is likely not eligible for FEMA funding).
      3. The cost of using extra vehicles to maintain social distancing is likely not eligible for FEMA funding if the use of the vehicles is for normal municipal duties.
  3. The PEMA representative did urge municipalities to request as much emergency funding that they think they could be eligible for.  He indicated that PEMA will act as the municipality’s advocate with FEMA.  He also indicated that the PEMA officials will help interested municipalities to navigate through the FEMA funding process.  Unfortunately, PEMA/FEMA emergency funding will not cover revenue shortfalls due to tax revenue collection delays or increased costs of simply doing regular business.  Those revenue shortfalls would need to be recovered with other means.
  4. The PEMA representative also urged municipalities seeking emergency funding to keep good records of the expenses incurred (this would include time sheets, receipts, invoices, etc.).
  5. The emergency funding discussed above was for grant funding that municipalities would not have to pay back.  Additional funding may be available to borrow through the Community Disaster Loan Fund.  We would encourage you to contact PEMA for additional information on that fund.

Budget Short-falls and Tax Anticipation Notes in Time of COVID-19

As you may have noticed in the section of this memo on emergency funding through FEMA, at present there is little currently available to municipalities to help cover added costs due the COVID-19 disruptions.  This includes cashflow shortages due to tax collection deadlines having been extended until July 15.  One option for covering the shortfall is a tax anticipation note (or “TAN”).  TANs are short-term loans extended to municipalities, with the expectation that they will be paid in full by the end of the fiscal year (which for most municipalities is Dec. 31).

Whether a TAN is a good option for your municipality will vary based upon a number of factors.  Below are a few aspects of the TAN requirements:

  • The total amount of TANs issued in a given year cannot exceed 85% of the amount of taxes levied for the current year.
  • The municipality must certify to the Commonwealth as to the estimated amount of tax revenues to be received during the period when the TAN will be outstanding. This estimate must be based on collection experience and current economic conditions of the municipality, i.e., it must take into account the current economic downturn.

There are also other federal tax implications to lending via TANs, so TANs should not be assumed to be a “silver bullet” for managing financial shortfalls from COVID-19.  Please contact us to discuss any shortfalls you expect and whether this option may work for your municipality.

Loan Deferrals

Almost all commercial lenders are offering their customers a deferral of principal and interest payments.  Most lenders are offering deferrals for up to three months with the deferred principal and interest payments rolled into the final payment on the maturity date.  For most borrowers this just requires contacting their lender.  There may also be many upcoming opportunities in the bond market as the federal reserve becomes more active buying municipal obligations.

PENNVEST has also recently announced a loan deferral program.  PENNVEST will allow its borrowers that are in good standing to defer principal and interest payments for up to three months.  Similar to commercial lenders, the deferred principal and interest payments will be rolled into the final payment on the maturity date.  Requests for a deferral must be submitted no later than September 1, 2020 and the offer to defer payments will apply only to principal and interest payments made in the calendar year 2020, so the last payment eligible for deferral would be due December 1, 2020.  You can click here to go to the application for a deferral.

I hope you find this information useful.  Stay safe and as always do not hesitate to contact Andy Miller amiller@mpl-law.com or Doug Myers dmyers@mpl-law.com with ay Covid-19 related questions.

Municipal Law Update – April 14, 2020

I hope your week is starting out as close to normal as it can.  A few updates to share:

  • We are offering a Zoom training through the York County Bar Association on Wednesday, April 15 at 10 am.  You can register for the training at:

The YCBA invites you to attend a Zoom training for MPL Law Firm and Clients.

  • When: Apr 15, 2020 10:00 AM Eastern Time (US and Canada)

After registering, you will receive a confirmation email containing information about joining the meeting.

  • The state issued the linked update to the FAQs on Life-Sustaining Business.  Changes were made to #20 (Residential Construction) and #36 (Retail Garden Centers).  Many residential contractors who thought they had a waiver to continue working found out they really didn’t.  PSATS also clarified the limitations on Retail Garden Centers:

The commonwealth has also clarified that all lawn and garden centers are not authorized to maintain in-person operations. This prohibition applies to independent lawn and garden centers and those attached to large retail chains. DCED sent letters to large retail chains providing this clarification. This prohibition does not apply to establishments primarily engaged in retailing farm supplies, such as animal feed.  Online orders and delivery of those orders are allowed, including for lawn and garden centers that did not apply for or were denied a waiver. Curbside pickup is prohibited for businesses without a waiver, as they do not qualify for in-person operations under the governor’s order.

  • As we updated you last week, there are numerous bills pending before the PA legislature to address the Covid-19 pandemic.  Probably, the most important piece of legislation to local governments is SB 841.  A nice summary of the bill published by the Pennsylvania Municipal League is linked here.  In particular, the bill addresses remote meeting notice requirements, suspension of plan approval periods, and property tax due dates.
  • Is your municipality concerned about cash flow in the coming months due to the delay in collecting earned income taxes?  Many local municipalities are very concerned how they will continue to operate.  Many already operate with an extremely small staff so simply laying off staff is not an option if a local government wants to function in a meaningful way.  The CARES Act and the U.S. Treasury made available temporary loans for states and large municipal governments to plug revenue shortfalls from delayed tax collection, but the Treasury did not immediately address small or mid-sized local governments.  The Pennsylvania Municipal League adopted the linked resolution urging the Pennsylvania legislature to act to provide relief for these smaller governments.  If your municipality feels action by the state is important as well, please consider adopting a similar resolution to send to your local legislators.

I hope you find this information useful.  Stay safe and as always do not hesitate to contact Andy Miller amiller@mpl-law.com or Doug Myers dmyers@mpl-law.com with ay Covid-19 related questions.

Municipal Law Update for Friday, April 10, 2020

Today is Good Friday, which is the ultimate reminder to us about sacrifice for the greater good.  Most of us are being asked to sacrifice very little compared to those on the front lines of the Covid-19 pandemic.  We are all reminded to thank our healthcare workers and first responders who are putting themselves in harm’s way every day.

Now that we have another week under our belts, I thought I would provide some additional updates.

  1. Enforcement of Business Closure Order and Stay-At-Home Order.

As of April 8:

Businesses – 205 warnings; 0 citations

Stay-at-Home – 6 warnings; 2 citations

  1. Zoom Training.  We arranged a Zoom training session for our firm and our municipal clients with Victoria Connor, CEO of the York County Bar Association. Victoria has kept the YCBA operations running very smoothly using Zoom.  I have participated in several virtual meetings she has arranged and moderated.  She has a very good knowledge and grasp of Zoom’s capabilities and has taught numerous training sessions on it.  The half-hour training session will be Wednesday, April 15 at 10 am.  Please email for the meeting invite if you would like to attend to learn how you can setup public and other meetings through Zoom.
  2. Municipal Liquidity Fund.  In a prior update that summarized some relevant parts of the CARES Act, we mentioned the Federal Reserve would begin a program to buy municipal debt to provide liquidity to the municipal bond markets.  The Federal Reserve and US Treasury formally announced the Municipal Liquidity Fund yesterday.  The Treasury and Federal Reserve will make a $500 billion equity investment in the Municipal Liquidity Facility (MLF), which will provide direct financing to states, counties, and cities to help ensure they have the funds necessary to provide essential services to citizens and respond to the coronavirus pandemic.  The MLF will provide funds to help offset the delay in state and local tax receipts caused by the deferral of the tax filing deadline, and to help offset any short term losses in tax revenues resulting from reduced business and consumer activity due to the coronavirus pandemic.  At this time, only states, cities with population over 1 million and Counties with populations over 2 million will be eligible to participate.  Stay tuned whether the program expands to smaller municipalities or Pennsylvania uses the funds to assist local governments.  A copy of the Federal Reserve announcement and guidelines for the program is attached.  You may consider contacting your local legislators to take steps to make some of this emergency tax revenue relief available to local governments.  Local governments will be severely impacted by the tax extensions and more legislation is pending regarding property tax payment deadlines.

  1. Deadline Extended for Liquid Fuels Tax Refunds.  The traditional deadline for filing liquid fuels tax refund claims with the Board of Finance and Revenue is March 31, 2020. However, in response to the substantial operational disruption experienced by local governmental entities to efforts to mitigate health threats posed by the public health emergency, the Board of Finance and Revenue will accept all 2019 liquid fuels refund claims by political subdivisions, nonpublic schools, and state agencies filed on or before June 30, 2020.
  2. DCED Clarifies Short-Term Residential Rentals Are Not Life-Sustaining.  The state Department of Community and Economic Development has clarified that short-term rentals of any residential property are not authorized as life-sustaining. Hotels and motels may continue to operate. DCED has specifically noted in its Life-Sustaining Business FAQs that “Short-term rentals of any unit, group of units, dwelling, building, or group of buildings within a single complex of buildings which is advertised or held out to the public as a place regularly rented to guests, or which is rented to guests more than three times in a calendar year for periods of less than 30 days or 1 calendar month, whichever is less, or rented through a home-share website are not authorized.” In addition, DCED has requested that AirBNB.com and Vrbo.com comply with this
  3. Pending and Enacted Legislation.  The Pennsylvania has been very active proposing legislation to address the Covid-19 pandemic.  Here is a list of what is pending.  Click on the link to see the detail and status.

Pennsylvania HB 68  Amends the Unemployment Compensation Law; provides for unemployment compensation benefit notification by employers; requires employers to provide notification of the availability of unemployment compensation to employees at time of separation from employment; sets forth emergency provisions related to COVID 19. Enacted.
Pennsylvania HR 834  Adopts temporary Rules of the House of Representatives relating to roll call votes, to voting meetings of committees, to consideration of bills, to third consideration and final passage bills, to conference committee reports and to electronic mass communication. Adopted.
Pennsylvania HR 836  Terminates the disaster emergency declared in response to the cases of COVID-19. Pending. 
Pennsylvania HB 1232  Amends the Fiscal Code, providing for emergency finance and tax provisions; in additional special funds, providing for COVID-19 response transfers and for the Enhanced Revenue Collection Account; in 2018-2019 budget implementation, further providing for Department of Revenue; and making an editorial change. Enacted.
Pennsylvania SB 327  Amends the Administrative Code, providing for COVID-19 emergency statutory and regulatory suspensions and waivers reporting requirements, for COVID-19 debt cost reduction review and for COVID-19 Cost and Recovery Task Force; in powers and duties of the Department of General Services and its departmental administrative and advisory boards and commissions, providing for report of State facilities owned or leased; and making an appropriation. Pending.
Pennsylvania SB 613  Repeals provisions relating to employees with access to Federal tax information; provides for criminal history background checks of employees and contractors with access to Federal tax information; and providing for COVID-19 emergency mitigation plan for businesses. Pending. 
Pennsylvania SB 841  Provided for the Health Care Cost Containment Council, for its powers and duties, for health care cost containment through the collection and dissemination of data, for public accountability of health care costs and for health care for the indigent; providing for COVID-19 disaster emergency; in local organizations and services, further providing for general authority of political subdivisions; and, in Uniform Unsworn Foreign Declarations Act, further providing for heading of chapter, for short title of chapter, for definitions, for applicability and for form of unsworn declaration. Pending. 
Pennsylvania SB 1096  Transfers all deposits made to the state general fund to the Small Business First Fund for the remainder of the COVID-19 Disaster Emergency proclaimed by the Governor. Pending.
Pennsylvania SB 1100  Relates to emergency finance and tax provisions; exempts a payment received by an individual from the United States through the Coronavirus Aid, Relief and Economic Security Act (Public Law 116-136) from being included as income of the individual for the 2020 tax year for the purposes of the Insurance Company Law of 1921, the Housing Finance Agency Law, and the Human Services Code, among others. Pending. 
Pennsylvania SB 1101  Provides for pandemic of 2020 guidelines for food establishments. Pending. 
Pennsylvania SB 1102  Provides for pandemic of 2020 guidelines for grocery stores. Pending. 
Pennsylvania SB 1103  Provides for a return to business operations under safety conditions; imposes sanctions; provides for functions of the Department of Health and the Legislative Reference Bureau. Pending.
Pennsylvania SB 1104  Relates to emergency finance and tax provisions; exempts a payment received by an individual from the United States through the Coronavirus Aid, Relief and Economic Security Act (Public Law 116-136) from being included in the income, earned income or taxable income of the individual for the 2020 tax year for the purpose of the Local Tax Enabling Act, the Tax Reform Code and the Taxpayer Relief Act. Pending. 
Pennsylvania SB 1106  Amends the Enforcement Officer Disability Benefits Law Heart and Lung Act; provides for disability benefits for a person who contracts or is diagnosed with COVID-19 or is subject to quarantine resulting from exposure to COVID-19. Pending. 
Pennsylvania SB 1108  Enacts the COVID-19 Emergency Supplement to the General Appropriation Act of 2019. Pending. 
Pennsylvania HB 2369  Relates to the Job Enhancement Act, in Community Development Bank Grant and Loan Program; provides for authority loans; makes appropriations. Pending.
Pennsylvania HB 2372  Provides for insurance coverage for business interruption concerning the coronavirus pandemic. Pending. 
Pennsylvania HB 2374  Provides for COVID-19 Crisis Fire Company and Emergency Medical Services Grant Program. Pending. 
Pennsylvania HB 2386  Provides for COVID-19 disaster emergency business interruption grants. Pending.
Pennsylvania HB 2388  An Act amending The Administrative Code of 1929, providing for emergency COVID-19 provisions that allow car dealerships to remain open during the crisis. Pending. 
Pennsylvania HB 2390  Prohibits return of groceries and other foodstuffs during COVID-19 disaster emergency. Pending.
Pennsylvania HB 2400  Directs the Secretary of Community and Economic Development to immediately issue a waiver to the Governor TWW COVID 19 Business Closure Order to all public and private construction activities that can adhere to the social distancing practices and other mitigation measures defined by the Centers for Disease Control to protect workers and to mitigate the spread of the COVID-19 virus. Pending. 
  1. More FAQs.  We have compiled a list of interesting and relevant FAQs from a variety of sources.  I am also attaching two lengthy sets of FAQs published by PSATS.

Personnel FAQs

Would you consider two week rolling furlough whereby employees would work for two weeks then be furloughed for two weeks and so on. UC should allow this. Please clarify.

Yes. The first time that they are laid off, they could sign up for unemployment. Then for the weeks that they work, they have to report their wages to the Pennsylvania UC office and those wages would be deducted from their weekly benefits. The townships would need to monitor these claims to make sure that the employees are reporting their earnings.

Are Township employees eligible for the extended family and medical leave provided by the Families First Coronavirus Relief Act?

Yes, with the exception that “public works” employees, including road crews and sewer and water system operational employees, are considered emergency responders who are not eligible for the extended coverage.  Because these are critical workers to keep essential services operating, the legislation did not make this leave available to them.  The decision to extend the benefit to public works employees is therefore at each municipality’s discretion.

Does Workers’ Comp apply to our employees due to Covid-19?

Maybe.  You should always check with your WC carrier.  Here are some basic guidelines:

The employee contracts COVID-19 outside of work and calls-in sick.
▪ WC does not apply
The employee is quarantined because of exposure to the virus that is not work-related.
▪ WC does not apply
The employee contracts COVID-19 due to a work-related exposure.
▪ WC may apply.  A determination needs to be made as to whether COVID-19 is “an ordinary disease of life to which the public is generally exposed outside of the employment…”  Note: COVID-19 has not been found in the drinking water process.
The employer quarantines one of its employees due to a known work-related COVID-19 exposure. This employee does not have the disease but, because of the exposure, is not allowed to return to work for a specified number of days.
▪ WC does not apply

Should we be taking our employees’ temperatures if we are requiring them to report to work?

OSHA places the burden of protecting employees on the employer.  We believe that regular monitoring for fevers in excess of 100.4 degrees is a basic precaution that should be taken by municipalities to protect employees, residents and the public.  We are finding generally that most employers are implementing temperature monitoring as a precaution so it will likely be a standard you are held to if a problem arises.

 

Operations FAQs

What restrictions should we put in place for the use of township parks?

Many townships are allowing continued use of their parks for walking, biking, etc., but are prohibiting access to buildings, restrooms and playgrounds. State parks have closed access to facilities through April 30.

Can zoning officer review plans and issue permits?

If the township wishes for its zoning officer to review plans and issue permits, it may do so.

Are the legal time fences for conditional use, planning submissions, etc. still required to be met?

At this time, PSATS understands that they are to required to be met. Many townships are working with applicants to get extensions or are otherwise conducting virtual meetings/hearings.

Does the PUC Order prohibiting utility shut-offs apply to Authorities?

No, the PUC does not have Authority to order Municipal Authorities to stop shut-offs.  We are also not aware of anything in the Governor’s Emergency Orders that attempts to prohibit shut-offs by Authorities.  However, Authorities should use their judgment whether it is necessary to do shut-offs at this difficult time for most ratepayers.  One of the primary arguments for local authorities ot exist is that they can better respond to the needs of local ratepayers, so now is when our Authorities can do the most to prove they are a better local option for their ratepayers than large, for-profit utilities.

Residential construction is now permitted under the Governor’s order, so should township be issuing permits?

Residential construction is not considered to be life-sustaining under the governor’s current list. The FAQs on this issue currently states the following and townships should act in consideration of this guidance: Residential construction projects that are substantially completed may continue to completion. Projects that are “substantially completed” are those that have been issued a final occupancy permit. For all other residential construction projects limited activities may continue to the extent necessary to stabilize the site, temporarily prevent weather damage, or make emergency repairs only. No new residential construction or non-emergency rehabilitation projects may be started.

Meetings, Emergency Declarations, etc. FAQs

What are the implications/benefits of declaring an emergency in your township?

Emergency declarations allow townships to engage in emergency-related purchasing without complying with the bid requirements, engage the EOP plans, and become eligible to receive potential disaster-related funding, among other things.

Regarding adopting an emergency declaration, what is the best time frame to set on something like this?

Many townships have adopted their emergency declarations so that they track the dates set in the Commonwealth’s declarations. PSATS recommends a time period longer than 7 days to avoid multiple renewals, which takes time and costs. For example, a 30-day declaration could allow your township to make renewals, as needed, at your regular monthly meetings.

Are public meetings limited to ten people per the governor’s mandate?

The Governor’s orders have requirements regarding gatherings of groups of people; given that, townships should consider implementing remote meetings.

 

Can the township pass a resolution to preapprove normal operating expenses such as payroll taxes, insurance, payroll between meetings?

Yes, the township board can always delegate various non-legislative authorities to township employees to perform outside of public meetings.

 

We’ve received guidance that recorded meetings are not ADA compliant unless they have subtitles. Does this remain a concern if it is in good faith to make available to residents?

In order to comply with ADA requirements, the township should include in its meeting advertisements that anyone who may need an accommodation can contact the township office to discuss. If there are regular attendees at township meetings who may benefit from such accommodations, the township could also reach out to them directly in order to find a solution. Under the guidance that PSATS has received, municipalities should be making a good faith effort to provide for public participation.

I hope you find this information useful.  Stay safe and as always do not hesitate to contact Andy Miller amiller@mpl-law.com or Doug Myers dmyers@mpl-law.com with ay Covid-19 related questions.

Covid-19 Loan Updates

Lenders are preparing documents and moving as fast as they can to start processing the PPP loans.  Borrowers are trying to figure out what the best loan package would be for their respective businesses.  I think I can safely say that It’s a Mad, Mad, Mad, Mad Covid-19 Rescue Loan World (if you haven’t seen the movie, add it to your list of things to watch….it can’t be that long by now).

Here are some things that we think may be important to know.

  1. SBA Lenders Approach to PPP Processing Varies:  We have been hearing from many lenders that they will only work with their existing customers first.  It is understandable.  One lender noted that last year they processed 1500 SBA applications in total.  With the PPP, they are expecting 40,000 applications.  Talk about overload.  In case you did not have a lender identified, please see the linked list for contact information.  We are also linking a helpful worksheet which may help you determine your payroll for the PPP amount.   Lastly, if your current lender or bank is SBA approved, then I would suggest approaching them first.   
  2. One of many unintended consequences:  An article was forwarded to me that discussed the unintended consequences of the various loan programs for the restaurant business.  If you have a few minutes, I would suggest reading it.  The link to the article is here.
  3. Requests for PA Waivers for non-life-sustaining business will close tomorrow at 5pm.  The link to submit a waiver is available here.
  4. Upcoming Webinars:
    1. Huntington Bank, COVID-19 SMAR Talk Weekly Webinar, Wednesday April 8, 2020, 1pm-2pm:  The registration link is here.
    2. NFIB, How to Apply for a Coronavirus Small Business Loan, Friday April 3, 2020, 12pm:  The registration link is here.

Please see all of our updates at the following link:  https://mpl-law.com/resource-center/

As always, please don’t hesitate to email myself, Andy Miller (amiller@mpl-law.com) or Christian Miller (cmiller@mpl-law.com) or anyone in our office with any questions or comments. 

Municipal Law Updates: Major Disaster Declaration, Monthly Meetings, and Stay-At-Home Order Expansion

There have been a few recent developments to update you on.  I am hyperlinking the updates to various sites for your convenience.

  • President Trump issued a major disaster declaration for the Commonwealth of Pennsylvania.  This makes federal funding available to state and local governments for response to the Covid-19 pandemic.  We recommend you begin to gather and track your costs and expenses to the pandemic in order to eventually apply to FEMA for cost reimbursements.  I believe you do also need an emergency declaration in place for your local municipality to be eligible.  Here is a link to PEMA’s Public Assistance Program website where you will find more guidance and link to FEMA’s application portal.  Our prior update also highlighted some of the relief programs in the CARES Act.
  • The Stay-At-Home Order for York County has been extended to April 30 and additional Counties have been added.  The Business Order Enforcement Guidance can be found here.
  • Pennsylvania continues to update its resources and provide information.  DCED has now posted some helpful FAQs you may find useful.  DCED also announced that it will not extend the April 15 deadline for filing certification forms for pension state aid programs (2020 Form AG-385 and 2019 Act 205 AVR Forms). The legislative due date of April 1 to submit the DCED Annual Audit and Financial Report has not changed, but DCED has announced it will not penalize municipalities if they have not submitted the Audit by April 1.
  • This morning the York County Commissioners tabled a resolution to waive the penalty for County real estate taxes during the penalty period for 2020.  The County would like to coordinate any relief with local municipal governments so this will give everyone more time to get on the same page.  We are attaching an email that Mark Derr asked us to help distribute explaining the County’s position on the property tax relief.  We ask all of you to put this on your agenda for discussion at your next meeting so you can give feedback to the County.
  • If you are still accepting permit applications, we suggest you consider getting time extensions from applicants because of the impact the business closure will have on your ability to process applications, especially where third-party offices are involved.  We can help you put together an appropriate time extension for applicants to submit with applications.
  • April meetings are starting remotely.  We’ll give you updates and feedback as we attend a few virtual meetings.  This will be a learning process for all of us!  We advised most of our municipal clients that given the circumstances and the stay-at-home Orders issued near the end of March it was acceptable to cancel meetings scheduled at the end of March.  This was all very new and most of us were not yet equipped for it.  However, we do not recommend canceling additional meetings as we are now further into this new normal and need to adapt.  Some boards are also statutorily required to meet monthly (although there is no clear penalty for failing to do so) and should make arrangements to do so by means other than in-person public meetings in April.  Here are the requirements:
  • First Class Townships:  “The board of township commissioners shall meet at least once a month, at such time and such place as may be designated by ordinance.”
  • Second Class Townships:  “The board of supervisors shall meet for the transaction of business at least once each month at a time and place determined by the board of supervisors. A quorum is two members of a three-member board of supervisors or three members of a five-member board of supervisors.”
  • Boroughs:   Council has a duty to “meet at a stated time at least once a month. Council may adjourn to a stated time for general business or for special businesses. If no quorum is present at a regular, special or reconvened meeting, a majority of those who do meet may agree upon another date for like business in a manner consistent with 65 Pa.C.S. Ch. 7 (relating to open meetings).”
  • Authorities:  Have the power to “make bylaws for the management and regulation of its affairs.”  Check your articles of incorporation and bylaws for required meetings and try to abide by those.
  • Planning Commissions:  No monthly meeting requirements unless set by bylaws.
  • Zoning Hearing Boards:  No monthly meeting requirements, but the “first hearing before the board or hearing officer shall be commenced within 60 days from the date of receipt of the applicant’s application, unless the applicant has agreed in writing to an extension of time.”  We recommend time extensions be signed with applicants in accordance with this requirement.

As always, please feel free to contact us with any questions.  You may also visit our Resource page for all of our past updates and materials.  Scroll down to the bottom of the page for the municipal updates.