Top COVID-19-Related Legal Inquiries
The NHMA Legal Advisory Service kicked into high gear on March 13th in response to member inquiries related to the pandemic. In order to facilitate our response we created a new category for our legal inquiry data base, “COVID-19 coronavirus”, where we store all inquiries, telephone and email, and our responses. Like the pandemic itself, questions from our members surged 30% in March, April, May and June and have now settled back to a more normal level. Thanks to a gifted and dedicated team of attorneys, Natch Greyes, Cordell Johnston and Executive Director Margaret Byrnes, along with the assistance of our Municipal Finance Advisor Becky Benvenuti, we have composed a wealth of legal advice and financial guidance tailored to the municipal response to the pandemic. Here we share the Top COVID-19-Related Legal Inquires and our answers to our members.
When It All Began: March 13, 2020
Why March 13th? Other than the cultural association with bad luck, it was on Friday, March 13, 2020 that Governor Christopher Sununu issued the first of his now six State of Emergency Declarations. Under that first State of Emergency Declaration, EO 2020-04, the Governor invoked his powers under RSA 4:45 and RSA 4:47. Once the Governor has declared a State of Emergency, he has "[t]he power to make, amend, suspend, and rescind necessary orders, rules and regulations to carry out the provisions of this subdivision in the event of a disaster beyond local control." RSA 4:47, III. During a State of Emergency, the Governor becomes the ultimate law giver, subject to limited checks and balances; a State of Emergency Declaration automatically terminates 21 days after its declaration, and, subject to action by the legislature to terminate a state of emergency by concurrent resolution adopted by a majority vote of the House and Senate. RSA 4:45, II (c).
How will we handle virtual meetings scheduled for the week after the State of Emergency and Emergency Order #12 expire? Do we then cancel the virtual meeting and reschedule for in person the following week? We will not have enough notice for the public and one is a Planning Board meeting with applicants.
While the State of Emergency remains in effect, as declared by the Governor, it is expected that Emergency Order #12 will continue to permit municipalities to hold virtual meetings using Zoom and similar technology.. There will come a time when Emergency Order #12 will expire yet a town will have scheduled a virtual meeting before that expiration date for a meeting that takes place after the Emergency Order #12 is no longer in effect. If that were to occur, then the virtual meeting would have to be cancelled, and the public body would need to schedule a regular meeting at a physical location. This might cause some further delays in the scheduling of the public meeting or public hearing, but those impacts may be unavoidable.
Due to the fact that Emergency Order #16 banning gatherings of 10 or more people was lifted on June 16, 2020, permitting towns and cities to hold public meetings, is the town and any of its boards or commissions obligated to provide Zoom or virtual meeting information to the public if the Zoom or virtual meeting is only being used by members who cannot be physically present at the meeting?
Zoom virtual meeting information is deemed to be a “public record”, and all public records are subject to disclosure unless exempt under RSA 91-A:5. Thus, if the town or any of its boards were to schedule a meeting that anticipated one or more members participating remotely under RSA 91-A:2, III, and prior to that meeting a member of the public requested the Zoom virtual meeting information under RSA 91-A:4, that information would have to be disclosed.
Second, if in any way the remote participation is relying on Emergency Order #12, then the meeting notice would have to disclose the Zoom virtual meeting information. Thus, if the number of public body members who are participating remotely cause the meeting to not have a quorum in the physical location of the meeting, then you would be using Emergency Order #12 and the virtual meeting information should be in the meeting notice.
As public meetings begin taking place at town hall it would be prudent to always allow for virtual public access to anticipate that meeting room occupancy might exceed CDC guidelines for social distancing. We would also point out is that it is our reading of RSA 91-A:2, III, together with paragraph 4 of Emergency Order #12, that so long as at least one member of a public body is participating remotely, the rest of the public body could be meeting at a physical location, such as town hall, and you could tell the public they can only participate via online access or by telephone.
Face Masks and Local Authority
Our Select Board has been asked by local businesses to mandate that everyone entering a business or restaurant wear a mask. Does the Select Board have the authority to mandate wearing masks?
The select board, in conjunction with your Health Officer, have the authority to “make regulations for the prevention and removal of nuisances, and such other regulations relating to the public health as in their judgment the health and safety of the people require.” RSA 147:1. This ability to adopt local health regulations could include imposing a mandate on the general public to wear a face covering similar to the ordinance adopted by the City of Nashua. Citing authority vested in a city council under RSA 47:17, XV the Superior Court found that a City of Nashua Ordinance mandating face masks for persons entering businesses and commercial buildings was a proper exercise of the City’s authority to make bylaws for the well- being of the city. Cooper v. Sununu, Docket #226-2020-CV-0026, Hillsborough Superior Court, Southern District (Decided July 13, 2020). That decision also made clear that local face mask ordinances are not preempted by the Governor’s Emergency Orders and Declarations of Emergency. Unlike other States, where Governors have stated in their emergency orders that local government has no authority to implement face mask mandates, Governor Sununu has left it up to local government to decide whether to require face mask wearing by the public.
If a town wishes to implement a mandatory face mask ordinance it is recommended that the select board, in concert with your local health officer, use RSA 147:1. That statute states as follows:
The health officers of towns may make regulations for the prevention and removal of nuisances, and such other regulations relating to the public health as in their judgment the health and safety of the people require, which shall take effect when approved by the selectmen, recorded by the town clerk, and published in some newspaper printed in the town, or when copies thereof have been posted in 2 or more public places in the town.
The mandatory face covering ordinance would be drafted by the town’s your health officer and then approved by the select board. It is suggested that the “approval” by the select board be done after the board has held at least one public hearing with notice posted and published in a newspaper at least seven (7) days before the hearing. Once approved, the ordinance would be recorded with the town clerk and published in a newspaper and posted in 2 or more public places in town.
The select board is interested in establishing a local ordinance requiring people entering town hall or other public buildings to wear face masks. Any guidance you can provide as to the legality of such an ordinance would be greatly appreciated.
The select board has the authority under RSA 41:11-a to manage and regulate the use of town property, except that town property which is managed by another board. For example, the library trustees have the authority over the library according to RSA 202-A:6, so the trustees would set the rules for use of the library. In the case of town hall, however, the select board would have the authority to require the wearing of a face mask inside the town hall. The rules should be tailored to the need due to the spread of COVID-19 and the ability of the public comply. Some members of the public, such as young children or those on oxygen will be unable to wear masks, and any rules should account for that possibility.
Elections and Absentee Ballots
Is it okay to count absentee ballots ahead of election day, such as the day before?
Absentee ballots cannot be counted until the polls are closed on election day. There are strict rules for processing absentee ballots, set out in RSA 659:47 through 659:55. The processing of absentee ballots may not begin until a specific time on election day established by the moderator, which cannot be earlier than two hours after the polls open. RSA 659:49-b does allow the opening of the outer envelopes only prior to that time (but still on election day). Once the ballots are processed, they must be deposited into the ballot box or ballot-counting device. No absentee ballots may be counted until after the polls close.
The deadline for receiving absentee ballots is 5:00 PM on election day, can that be extended to the time polls close?
No. That deadline is established by state law, and local officials have no authority to change it. RSA 657:22 says the clerk “shall not accept any completed absentee ballots delivered to the clerk after 5:00 p.m. on election day” (subject to very limited exceptions). The clerk would be violating the law if he or she accepted an absentee ballot after 5:00 p.m.
The Town Clerk is obligated to process an application for an absentee ballot and the ballot can be either handed to the applicant or mailed. Does the Town have to provide a place for an absentee ballot to be filled out, such as a voting booth or voting area?
No. A voter may complete the absentee ballot wherever he or she wants to, but the clerk is not required to provide a place for a voter to fill out an absentee ballot. Most people take the ballot home to complete it, but if the voter wants to, and can complete the ballot in the waiting area and hand it back to the clerk, that is fine. But the clerk does not have to provide a special place for voters to do this.
Can additional staff used in anticipation of a high absentee ballot election use GOFERR funds to offset those costs?
Yes. The GOFERR Program Overview and Guidance states that “increased election costs” are an example of allowable costs. (See page 2 – “Examples – Allowable.”) Additional staff for handling absentee ballot applications certainly would be an election cost. These costs would be charged against the total amount allocated to the town for all expenses based on its population.
Unlicensed Dogs and Civil Forfeiture
In June the Town Clerk provides the Select Board with a list of unlicensed dogs, and the Select Board issues a warrant authorizing civil forfeiture in accordance with RSA 466:14. This year because of the COVID-19 pandemic and limitations on available veterinarian appointments, we are starting to receive requests from residents to waive the $25 civil forfeiture penalty. Does the Select Board have the authority to waive this? Could the Select Board decide to not collect the civil forfeiture of $25 and not follow-up with a violation in district court? What options does the Town have?
We have received word from the Governor’s office and the Attorney General’s office that they agree with an interpretation of Numbered Paragraph 5 in Emergency Order 23, allowing the cessation of timelines, to allow the select board to vote to delay the imposition of the warrant and civil forfeitures for dog licenses. Originally, we were concerned about using EO #23 for this purpose because the order relieves municipalities, not citizens, from statutory deadlines. But in looking further at RSA 466, there is actually no deadline for residents to license their dogs by a certain date. It merely says (RSA 466:1) that the license is effective from May 1 to April 30, “regardless of when the license is obtained.”
RSA 466:14 then requires the clerk to prepare a list, between June 1 and June 20, of dog owners who haven’t licensed their dogs, and the select board must, within 20 days, issue a warrant for the seizure of unlicensed dogs. That is a municipal deadline. Therefore, EO #23 may be used to extend the deadline for municipalities in RSA 466:14. Although the owner’s obligation to license the dog still exists, the warrant will not be issued.
Utility Collections and Disconnections
Our village district, board of commissioners needs information on how to move forward with customers refusing to pay their overdue water and sewer bills. Some of these individuals had overdue balances prior to COVID-19. Can we shut off their water service if they refuse to pay?
On March 17th Governor Sununu issued Emergency Order #3 prohibiting all providers of water, including municipal and village district water and sewer utilities, from disconnecting water service for non-payment. On June 30th Governor Sununu issued Emergency Order #58 which terminates Emergency Order #3 effective July 15th. That order says in pertinent part that the municipal utilities may begin non-payment collection proceedings on and after July 15, 2020 subject to the following proviso:
customers having arrearages accrued between March 17, 2020 and July 15, 2020 shall be provided the opportunity to make a reasonable payment arrangement over no less than a six month period and shall not be charged any fees for late payment for arrearages accrued between March 17, 2020 and July 15, 2020.
If a customer of municipal utility had an arrearage that accumulated between March 17, 2020 and July 15, 2020, before the municipal utility disconnects that service due to non-payment for that period of time the utility must first offer the customer an opportunity to make a reasonable payment arrangement over no less than six months, and for that payment arrangement, for that period of time, the utility cannot charge any fees for arrearages that accrued.
If a customer has an arrearage that accumulated before March 17, 2020, or after July 15, 2020, the utility’s normal collection and disconnect policy would apply.
If an employee goes on non-business related personal travel outside of New England, are they mandated to use their own Paid Time Off or unpaid leave upon return to satisfy the 14-day quarantine, or would they be eligible for two weeks of paid leave under the Families First Coronavirus Response Act (FFCRA)?
It is a very close call whether travel related workplace isolation qualifies for two weeks of paid leave under FFCRA. Medically supported/recommended quarantine and government-imposed quarantine generally will trigger eligibility. If the employee contacts a medical provider and they recommend self-quarantine, which many would likely recommend right now, then we would say yes the employee will qualify. Even if the employee does not get the support of a medical provider, the employer-imposed workplace isolation in this case could be deemed to have come from a government entity. That would be the case if the Town has decided to follow DHHS guidance to exclude an employee from the workplace if they have had recent travel outside the New England states. It is strongly recommended members consult your regular legal counsel, or, contact our Employment Law Hotline at 603-623-2500.
Patron and Library Responsibilities and Concerns
When the town’s library reopens to patrons by appointment only, are we required to make a restroom available for patrons? Can we request that patrons who have visited the library inform us if they develop symptoms of COVID-19? If we are aware that a patron has contracted COVID-19, are we then responsible to inform other patrons and/or shut down the library for deep cleaning?
There is no requirement that the library makes its restrooms available to patrons. The is because a public library does not fall under the definition of a place of public accommodation under RSA 155:39-a. Therefore, it would be permissible to allow only staff to use restrooms.
At present, DHHS is conducting contract tracing to determine where those infected with COVID-19 have visited. DHHS is notifying those persons who have come into close contact with infected individuals and asking them to quarantine. That would cover the library as well. In addition, Local Health Officers have an obligation to notify DHHS of anyone who they suspect may have contracted COVID-19 (or other infection diseases) and are working with DHHS on the sanitation front, so we would recommend that you speak with your Local Health Officer about anything that the library may need to do to ensure that employees and patrons stay safe.
If you are notified that someone who has COVID-19 has been at the library, we would recommend that you contact your Local Health Officer for appropriate medical guidance as well as implement your plan for someone being sick being present. If you haven't seen it, the New Hampshire Library Association has a great document regarding best practices to help with reopening planning and that may be of some assistance - http://nhlibrarians.org/wp-content/uploads/2020/05/FINAL-Reopening-NH-Libraries-Task-Force-Best-Practices-5_20_2020.pdf
Stephen C. Buckley is Legal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 603.224.7447 or at firstname.lastname@example.org.