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Governor Gretchen Whitmer’s March 24 Executive Order 2020-21, mandating that individuals to “stay at home” in response to the novel coronavirus (COVID-19), has now been extended through May 15 by Executive Order 2020-59, with some activities being allowed to slowly and carefully resume. Townships’ in-person government operations are subject to this Order, just as are individuals and commercial operations. But which in-person operations are “minimum basic functions,” what does “critical infrastructure” mean, and how does this affect regular Township operations and services like cemeteries, parks, and ordinance enforcement? This E-Letter explains the most pertinent Executive Orders that affect your “normal” Township operations, including the most recent Executive Order issued on April 24, which began relaxing some restrictions contained in previous Orders. Learn about the practical impacts of the Orders on police, public utilities, parks, freedom of information act requests, ordinance enforcement, and public meetings.

I.             THE STAY AT HOME ORDERS

During March and April, Governor Whitmer issued several Executive Orders (“EO”), including EO 2020-21 on March 24, EO 2020-42 on April 9, and EO 2020-59 on April 24 (the “Stay at Home Orders”), in response to the novel coronavirus (COVID-19) pandemic. The Stay at Home Orders reflected changing conditions as the coronavirus outbreak expanded in Michigan, affecting individuals, businesses, and governments. The Orders generally require all individuals in Michigan to stay at home, subject to several exceptions. The original Order was set to expire April 13, 2020, but EO-42 extended and modified requirements through April 30, 2020. EO-59 modified and extended the requirements again and extended them through the end of the day on May 15, 2020. We anticipate that the Governor will continue to reevaluate, revise and extend her EOs to gradually transition to less restrictive limitations on a range of activities.

The Stay at Home Orders restrict in-person government activities to only those activities that “are necessary to sustain or protect life” and those activities necessary to support such in-person activities. The Orders make exceptions for activities that include “minimum basic operations” and necessary functions.

II.           NECESSARY GOVERNMENT FUNCTIONS

Township in-person operations under the Stay at Home Orders are necessary if they involve “critical infrastructure workers” or “minimum basic operations.” See EO-59, section 6(a), (c). The list in EO-59 is not all-inclusive. The Stay at Home Orders also incorporate the March 19, 2020 Federal Guidance from the U.S. Cybersecurity and Infrastructure Security Agency describing those township employees who are critical infrastructure workers. The Federal Guidance also identifies workers in 13 sectors who are considered critical. Critical infrastructure workers and necessary workers may undertake minimum basic operations. Unlike commercial businesses, townships are exempt from designating in writing which workers fill these roles and no such written designation must be made (although some employees may prefer such writing). See EO-59, section 5(a)(2).

Several categories of township employees are considered necessary or critical infrastructure workers:

• Law enforcement and fire operations
• Public safety and first responders
• Public transit
• Trash pick-up and disposal
• Water, wastewater, and public works
• Election management and required activities (this does not affect election deadlines)
• Maintenance of safe and sanitary public parks
• Health care and public health
• Operations necessary to support critical infrastructure workers
• Minimum basic operations

Minimum basic operations are defined in Section 4(b) of the Executive Order, which includes maintaining inventory and equipment, ensuring security, processing payroll, and facilitating others ability to work remotely. See EO-59, Section 1 & 6. Those in-person government activities must be performed consistent with social distancing and mitigation measures described in Section 11 of Executive Order 59.

III.          SPECIFIC CONSIDERATIONS FOR TOWNSHIP ACTIVITIES

Fire, Police and Ambulance Services. Workers in law enforcement, public safety, and first responders are engaged in necessary government activities. Administration and support staff are also considered critical workers. In many instances, they are undertaking their work in overburdened systems, unique circumstances, and stressful physical and mental environments.

Public Works and Water Supplies. Public works and public water supplies are important critical infrastructure. Townships should operate their water and sewer departments as normally as possible to ensure clean water and sanitary conditions for residents. Township employees assigned to clean and sanitize work areas due to Covid-19 would also be considered critical workers. Under EO 2020-28, residences where water service has been shut off generally must be restored, unless the reconnection would create a risk to public health.

Cemeteries. Cemeteries should continue maintenance and cleaning efforts. Long term projects or projects that workers cannot undertake without social distancing should be avoided. However, groundskeeping and landscaping may continue with appropriate employee distancing. EO-59 specifically relaxed restrictions on groundskeeping, recognizing both its need and the ability of employees to undertake these activities safely. Individuals may leave their homes to attend a funeral, provided no more than 10 people are in attendance. Townships should work with their cemetery staff to safely accommodate funeral requests while the Stay at Home Orders remain in place.

Parks & Recreation. Parks, physical exercise, and other outdoor activities are important outlets during this time. Townships should keep parks, trails, and nature areas open where citizens can keep adequate spacing between groups. Communal areas in parks—such as restrooms, pavilions, or playground equipment—should be closed because different groups may unintentionally touch common surfaces where the coronavirus could spread.

With extra activity in parks, groundskeeping and sanitation efforts take on a higher priority. Employees should maintain areas often. EO-59 expanded permissible activities of maintenance workers and groundskeepers to maintain the safety and sanitation of places of outdoor recreation, such as golf courses. Townships may open and maintain recreational opportunities where they do not provide goods, equipment, supplies, or services to individuals, and participants are able to follow social distancing rules.

Sanitation, Trash, and Recycling. These activities, including recycling and composting, are necessary government activities that should continue. Workers should maintain social distancing, sanitizing, and other cleaning protocols to limit exposure when undertaking these activities. In addition, township staff may need to regulate entry into recycling and compost facilities to prevent patrons from congregating at a particular recycling container or compost site. Dumpster rental and other trash services are often available from commercial waste haulers for specific projects.

Office shutdowns, partial operations, and remote work. Townships may fully continue minimum basic operations through in-person activity, but you may also continue any operations that fall outside the scope of minimum basic operations through remote work. For example, it is important for townships to pay employees and bills. Approval of bills can be made either via a properly noticed remote teleconference meeting. Critical workers and some minimum basic operations may need to continue to physically report for work, while other workers can continue to operate remotely.

Elections. The Stay at Home Orders do not affect election deadlines. On March 27, 2020, Governor Whitmer issued EO 2020-27 which does not suspend or delay the May 5 election, but does encourage the use of absentee ballots to the maximum extent possible.

Sanitizing. Townships should adopt additional facility cleaning and disinfection to limit exposure to Covid-19. Additional protocols to clean and disinfect in the event of a positive Covid-19 case in the building or workplaces are also appropriate. According to some reports, obtaining those supplies can be difficult.

Ordinance Enforcement. Townships should focus ordinance enforcement on matters that are necessary to the immediate security, safety, and health of residents. For example, long grass, brush, or leaves typically do not present an immediate risk to health and safety; but building violations, zoning violations, and nuisances such as noise, trash and rubbish scattered or consolidated at a property may warrant enforcement due to the health risks. Townships may consider issuing more initial warnings and working with residents to resolve problems before issuing formal notices or civil infraction citations. This will assist the courts, which have largely delayed in-person civil matters for later dates.

Zoning. With limited retail and business activity, applications for new construction will likely slow. Since the Governor appears ready to allow commercial and residential construction to resume in the near future, this may change. As activity increases, the demand for inspections may increase, which will require the township to assess which inspections are considered critical. Zoning remains in full force and effect and a township may issue warnings and citations for zoning violations. If a business seeks a new zoning permit, the Planning Commission or Township Board may have to consider the application at a remote meeting with the notice of hearing containing the required remote meeting information.

IV.         PUBLIC MEETINGS AND INFORMATION REQUESTS

In addition to the restrictions of the Stay at Home Orders, the Governor also issued Executive Orders applicable to the Freedom of Information Act (FOIA) and Open Meetings Act (OMA). On March 18, 2020, Governor Whitmer issued EO 2020-15, addressing numerous concerns regarding public meetings held during the spread of COVID-19. On April 14, the Governor issued EO 2020-48 which extended the public meeting exceptions through May 12, 2020. The Governor’s Executive Order temporarily authorizes electronic and telephonic meetings—allowing remote participation in both public meetings and hearings. For more considerations regarding public meetings and public hearings, see our E-Letter from March 2020.

In addition to the OMA, on April 5, 2020 the Governor issued EO 2020-38 which also temporarily suspended strict compliance with the Freedom of Information Act (“FOIA”). Townships now have 10 business days to respond to a FOIA request measured from “actual receipt” of the request, which occurs when a township employee “physically opens the envelope” or “physically takes the faxed request” and the Township is not required to report to the Township’s office to physically retrieve the fax or mail. The Governor encouraged townships to respond to FOIA requests as expeditiously as possible and use electronic means to do so where practicable. However, if a Township is not able to maintain social distancing, must engage in an in-person search for records, or if other emergency and mitigation efforts related to Covid-19 prevent the timely response to a FOIA request, then the Township may issue a notice to that effect and extend the applicable response period as necessary, but not longer than June 4, the duration of the Executive Order. Provided the township notifies the requestor of any deferred responses, the Order provides enhanced flexibility in meeting record requests.

V.           COVID-19 PREPAREDNESS AND RESPONSE PLAN

While the Stay at Home Orders remain in effect, Section 11 of EO-59 also requires the Township to adopt a COVID-19 Preparedness and Response Plan to mandate and govern social distancing and mitigation measures for any in-person government activities performed by or on behalf of the Township. Such a plan must:

1. Restrict the number of in-person workers to those strictly necessary to perform critical operations and functions.
2. Fully promote remote work.
3. Keep workers and constituents on premises at least six feet from one another.
4.  Increase facility cleaning and disinfection to limit exposure to Covid-19.
5. Adopt protocols to clean and disinfect in the event of a positive Covid-19 case in the building or workplaces.
6. Adopt policies restricting entry by workers with respiratory symptoms or who have had contact with a person who is known or suspected to have Covid-19.
7. Follow social distancing practices and mitigation measures recommended by the Centers for Disease Control (CDC), which include:
8. Avoid large gatherings and maintain a 6-foot distance from others when possible.
9. Place hand sanitizers in multiple locations to encourage hand hygiene.
10. Educate employees about how they can reduce the spread of Covid-19.
11. Implement flexible sick leave and supportive policies and practices.
12. Advise employees before traveling to take additional preparation.

For additional resources, see the CDC guidance for First Responders and Law Enforcement. Each Township should carefully consider how to apply these guidelines in their own circumstances and whether additional restrictions beyond the guidelines are necessary.

VI.         CONCLUSION

The Stay at Home Orders require all non-essential workers to stay at home or at their place of residence. In-person Township activities are restricted, but several in-person activities may continue, including essential services that support citizens and other essential activities. Those activities generally are critical infrastructure, minimum basic operations, recreation, and sanitation.

This E-Letter is not intended to constitute legal advice. Since the EOs and their guidelines are evolving rapidly and each of your circumstances are unique, we encourage you to reach out to us if you have questions about how this or other COVID-19 related government action affects your community.

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Matt Kuschel

Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 150 years of experience in township law and have represented more than 150 townships across the state of Michigan. This publication is intended for our clients and friends. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.

Copyright © 2020 Fahey Schultz Burzych Rhodes PLC