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.

Municipal Update: YATB Extended Deadline for Local Earned Income Tax & More

I hope everyone is doing well and starting to figure this all out.  We thought this afternoon was timely to send an update on a couple of additional issues relevant to your municipal operations, especially tax revenue and material bids.  As always, if you have any questions, please do not hesitate to call us.

  1. York-Adams Tax Bureau has extended the deadline for filing and payment of Local Earned Income Tax.  Following the announcements by the IRS and the PA Dept. of Revenue, YATB has extended the filing deadline and payment for 2019 Individual Earned Income Tax Returns to July 15, 2020. This means taxpayers will have an additional 90 days to file from the original deadline of April 15. YATB will also waive penalties and interest on 2019 earned income tax payments through the new deadline of July 15, 2020. This extension applies to both 2019 Individual tax returns and payments, and estimated payments for the first quarter of 2020. EMPLOYERS: At the present time there are no extensions for Employer 1st Quarter 2020 Earned Income Tax Returns or payment of the 1st Quarter 2020 tax withheld from employees.  The payment due date for Second Quarter estimated payments remains the same at July 31.

The Cumberland County Tax Bureau has likewise extended the filing deadline and payment for 2019 Individual Earned Income Tax Returns to July 15, 2020.

  1. Deadline for Local Services Tax and Mercantile & Business Privilege Taxes not extended in most municipalities. The April 15 deadline for filing and paying first quarter Local Services Tax and Mercantile & Business Privilege Tax is not extended, unless the local municipality opts to do so.  Very few municipalities have offered any relief on this front.  Your municipality may extend the deadline by resolution.  Do not forget to contact YATB if you extend this deadline.

 The Cumberland County Tax Bureau has not posted any information on the first quarter Local Services Tax and Mercantile & Business Privilege Tax.

  1. Deadlines for payment of County and Municipal Property Taxes at rebate or face value not extended.  The deadlines to pay county and municipal property taxes at the rebate (4/15) and face amounts (6/15) are not extended at this time.  We have been in contact with York County to determine what the County will do with deadlines for payment of County property taxes.  As we know, County and Municipal taxes are billed together and most people pay County and Municipal taxes with one check, so different deadlines could be hard to administer and confusing to taxpayers.  The property taxes for about half of property owners are paid through escrow with their mortgage company.  Those monies are already paid and escrowed for County and Municipal property taxes.  The bigger crunch may be when school taxes are due this fall.  We expect many mortgagors will defer their mortgage payments for a few months, which means escrows may be underfunded when taxes are due.
  2. Construction Season Material Bids.  Many of you have canceled your recent or upcoming public meetings.  Many of you also need to advertise for material bids for the summer construction season.  We have been asked by several municipalities what to do if they are not meeting.  The authorization and advertisement for bids does not involve any expenditure of money (other than the advertisement cost), so we suggest you proceed with the advertisements.  Your advertisements and bid package should include a requirement to keep all bids open for 60 days.  If you cancel the meeting where the bids are to be awarded, you will still be able to award the bids at the next public meeting (assuming we return to normal life in the next 60 days).  The award of the bid at a public meeting ratifies the advertisement and actions leading up to the award decision.  We also suggest you let your bidders (at least the low bidders) know when a meeting is canceled as well as the date for the next following meeting when the award will be made.

Remember, as always, you may vote to reject all bids and re-advertise for bids at the next public meeting if the results are not acceptable.

  1. Coronavirus (COVID-19) Pandemic: Eligible Emergency Protective Measures.  FEMA has released a fact sheet describing what Public Program Assistance is available to local municipalities to reimburse costs for responding to the coronavirus emergency.  Public Program Assistance is managed through PEMA.

To better keep you informed, we created a resource page on our website where we are posting all updates and recommendations for our municipal clients and business clients.  Please visit https://mpl-law.com/resource-center/.  Please also feel free to post a link to our resource center on your website if you feel the information would be useful to your residents.

COVID-19-Clarification of Shutdown Order as it Relates to Local Governments

Enforcement of the Order Delayed Until Monday 

Due to the high volume of waiver requests, the Wolf Administration is delaying enforcement of Governor Tom Wolf’s order and the Secretary of Health’s order (the “Shutdown Orders”) that all non-life-sustaining businesses in Pennsylvania must close their physical locations to slow the spread of COVID-19. 

Per the Shutdown Orders, businesses that were non-life sustaining were ordered to close their physical locations on March 19, at 8:00 PM. This order stands, only the enforcement timing will change and become effective on Monday, March 23, at 8:00 AM. 

Local Governments may Continue Limited In-Person Operations 

The State has clarified that local governments are not required to suspend in-person operations but should curtail in-person operations to the extent practical and follow COVID-19 safety precautions. What does that mean for local governments? Our thoughts are: 

  • Arrangements should be made for emergency calls to your municipality to report road problems or other problems that may need immediate assistance. 
  • Public works crews should continue to perform road maintenance and repairs, especially where the repairs directly relate to road safety. 
  • Sewer and water systems should continue to perform maintenance and repairs to infrastructure as needed. 
  • New construction projects should be delayed, unless the project will be critical to the public health and safety. Please contact us if you have specific questions about projects or bid awards. 
  • Bidding for summer road materials and projects can continue. We can advise you how to get bid packages approved and advertised. Local governments will need to keep bidding for materials so the materials are available when normal operations resume. The construction companies and material suppliers we have talked to will keep their estimators working as long as they can. 
  • Municipal offices should continue to provide trash bags for tag-a-bag customers with appropriate cautions for pick-up. 
  • Building permit review offices are closed for now. Your building codes official should not accept new applications for building or occupancy permits until those offices open again. 
  • The Shutdown Order does not automatically extend deadlines for Right-to-Know Law requests. If you receive requests, your public records officer should send out a 5-day response letter requesting more time due to a lack of staffing to respond. 

Local Governments Should Balance Public Health and Safety with the Need for Critical Services When Enforcing the Shutdown Order 

The State has also acknowledged what we all knew – The list of life-sustaining businesses to remain open is not exhaustive. We have been advising clients to use judgment in determining what operations and businesses are critical. The State has now clarified that local governments should use judgment enforcing the Shutdown Order. Local governments are not mandated at this time to enforce the Shutdown Order, but have the right to do so at their option. You should balance the public health and safety with the continued delivery of critical infrastructure and resources. Here are a few recommendations:

  • Enforcement against public gatherings should be prioritized. We recommend that police be called to first to disband any public gatherings. 
  • For other work that should be shutdown but is not an immediate health and safety issue, your zoning or codes enforcement office can issue a cease and desist order. 
  • We recommend progressive enforcement starting with a warning, then a cease and desist order, then a citation. 

What are the Penalties for a Violation of the Shutdown Order? 

The Shutdown Order has been issued by the Department of Health in conjunction with the Governor’s Office. Violations of orders issued by the Department of Health are subject to the enforcement penalties of 71 P.S. § 1409: 

Every person who violates any order or regulation of the Department of Health, or who resists or interferes with any officer or agent thereof in the performance of his duties in accordance with the regulations and orders of the Department of Health, shall, upon conviction thereof in a summary proceeding before a justice of the peace, alderman, or magistrate of the county wherein such violation or offense is committed, be sentenced to pay a fine of not less than ten ($10.00) dollars and costs nor more than fifty ($50.00) dollars and costs, such fine to be paid to the county in which the violation or offense is committed. In default of payment of such fine and costs the offender shall be sentenced to be confined in the proper county jail for a period of thirty days. 

Violators may be cited by your local police or codes enforcement officer. Citations will be prosecuted after the Shutdown Order is lifted and the magisterial district courts open back up for business. 

The Shutdown Order may also be enforced by the Pennsylvania Department of Health through the Pennsylvania Disease Protection and Control Law of 1955, 35 P.S. § 521.1-521.21. The Act provides for certain fines and penalties for violations of disease control orders. 

Please feel free to call or email Andy Miller (amiller@mpl-law.com) or Doug Myers (dmyers@mpl-law.com) if you have any questions about these matters. Our office is closed, but our email and cell phones are working!