A Legal Perspective on Reopening Communities

In this Q&A, Chuck Thompson of the International Municipal Lawyers Association helps answer questions ICMA members have on reopening public facilities.

By Jason Grant | May 18, 2020 | ARTICLE
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To give some broad understanding of the potential legal matters that city, county, and town managers may be confronted with in the reopening of public facilities, we invited Chuck Thompson of the International Municipal Lawyers Association (IMLA) to help answer some of the questions that we have received from our members. As with any legal discussion, we begin with some important disclaimers.

These answers are not intended as legal advice, nor should they be relied upon without seeking advice from the attorney or attorneys that represent the decision maker, and who are familiar with the laws in the specific state and the facts upon which their opinion and advice will be based.

Are there limitations to excluding people from public spaces, even in the face of a pandemic?

There could be, and the authority to limit people from entering public spaces varies from state to state. So, if the government has the authority to limit access under normal circumstances, that won’t change. But where a government is restricted in its authority, a manager would likely need to look to a health or emergency order for that authority. In Maryland, for example, a person can enter public facilities in most instances, but may be asked to leave under limited conditions; and if the person refuses, may be arrested for trespass. That’s not to say there are not exceptions as to certain public buildings or properties where the public is not allowed.

Therefore, the first question a manager must determine in consultation with the local government attorney should be, “Under normal circumstances, what authority do we have to either deny entry to people or ask them to leave?”

The next question would be whether the public health officer (or any official who can issue emergency orders while under a public health emergency) has issued an order that directs that people cannot enter public buildings except under specific conditions related to the contagion.

Ultimately, if a lawful health order exists, a person who violates the order can usually be charged with a violation of the order and charged criminally for the violation of the health order or similar emergency declaration.

Assuming there is an enforceable law, ordinance, or order, what are some of the considerations to enforcing it?

In enforcing that sort of order, you’d want to ask, “Can this limitation or denial apply to everyone, or might there be exceptions?” While I’d be inclined to believe that an order could be enforced universally and equally against all, some members of the public could be affected more radically than others. For that reason, identifying reasonable accommodations makes sense.

For example, someone who is trying to get to court to pursue a case as a plaintiff or to defend a case (whether civil or criminal) needs to be assured they can have access to the court; and under some circumstances and in some states virtual access may well be enough. Usually, the courts will determine whether they can proceed virtually or require in-person attendance.  A criminal defendant who risks losing liberty interests if not able to defend a case, clearly should not be denied that right. Similarly, many members of the public need to be able to attend hearings, apply for permits, or conduct business with the government. Otherwise they risk losing important interests that may be protected either by the federal government or state law. These rights need to be accommodated, but generally, unless explicitly stated in the law itself, nothing requires in-person access.

If people are kept out of public meetings, are local governments required to offer alternative means for public comment or participation?

State laws generally regulate meetings and the extent of participation allowed or required. For example, in some states the Open Meetings Law only requires that the public be able to observe, while others require public bodies to allow public participation in meetings.

Regardless of the requirements of an Open Meetings Law, usually, in the legislative context, the public should be—and is often required to be—given an opportunity to comment on the proposed legislation or legislative measure. Similarly, in quasi-judicial matters, the public will usually be accorded the right to present evidence and offer a defense to a claim or action.

As we move into a virtual business environment, some laws may be so antiquated as not to allow for virtual participation, while others are more fluid. Where a state law or emergency order allows virtual participation, that accommodation should suffice in most scenarios. However, whatever accommodations local governments plan to put in place, they should be vetted to assure adequate participation so that whatever rights the law protects are not lost through inadequate resources for involvement.

 

Are there any changes to Open Meeting Laws?

I’ve seen that many governors have issued declarations that modify some requirements of the Open Meetings Laws and some state legislatures have enacted amendments to address this current pandemic.  So, some states have allowed for government bodies to act even if not in-person, but each state’s order and law varies the extent to which a government body can act. There can be limitations imposed on the type of action the governmental body can take under the relaxed process. 

Where state law does not offer clear direction on virtual meetings, government leaders might want to look at the authority given corporate boards under state law.  Absent some prohibition or negating language, a law that allows a corporate board to act through telephone meetings or virtually might equally apply to a local government, as most local governments are considered corporate entities. Generally, absent a change in the state law regulating open meetings, unless an emergency order modifies the standard open meeting requirements in a state or modifies procedures for handling legislative and quasi-judicial hearings, the best course would be to replicate those meetings or hearings virtually, when in-person attendance will not take place. Open Meetings Laws must be followed unless there has been some action that legally modifies them.

 

Do local governments have the authority to remove people from public spaces who may be symptomatic?

This will depend on the state law. Usually, the state health department or local health department will have authority to regulate matters of health, including disease prevention. Assuming some law, order or regulation exists that enables the local government to act, the answer lies in that law, order or regulation. If no law, order or regulation exists, then the governmental entity may be able to regulate the use of government property, either by virtue of statute or as an implied power. In those situations, the extent of the power may be specific or not so clear, but in any event, if the entity develops a policy that is substantively based on a good medical foundation, then the policy would likely be enforceable in most states. A better practice would be to have a person with symptoms briefly isolated and interviewed or examined by a doctor, either in person or virtually, through telehealth to determine if the person should be allowed in the public space or be ordered into isolation or quarantine or subject to other medically necessary restriction.

Can screenings be considered "illegal searches?"

Screening raises questions regarding whether the government is conducting a “search” under the 4th Amendment.  The key to understanding the protections of the 4th Amendment rests in the term “reasonable.” This Constitutional Amendment protects against unreasonable searches or seizures if without a warrant. Throughout the history of the United States, federal, state, and local governments have conducted what are called “administrative searches.” Screening at courthouses, airports, and other government buildings have been considered administrative searches as these are designed to protect the public safety.

Screening people for an infectious disease before entering a building will similarly fall within the realm of the concept of administrative search. The test for legality, i.e., reasonableness, will likely involve resolving questions of the need for the screening, the danger involved in not screening, the invasiveness of the test, and how the results will be handled.

 

 What do we need to consider in developing an operational plan for conducting tests?

The elements of this test suggest several considerations in designing a screening plan.

First, have a medical professional, the public health officer, determine if screening is necessary and whether it should be implemented.

Second, have the public health officer suggest methods of testing and offer the pros and cons of each.

Third, assess which test offers the most beneficial result while being the least invasive and designed to limit the screening beyond what are medically advised measures for determining the likelihood the person is contagious. In other words, the less likely the test will develop evidence of a crime and will only be in place to test for safety based on health issues, the more likely the test survives a challenge under the 4th Amendment.

Fourth, establish a protocol for handling those who are allowed into the building after the screening and for those who are screened out.

Fifth, for those screened out, have a medical professional or a telehealth service readily available and an isolation room available to conduct an interview or examination of the person screened out. This will allow the medical professional to determine if the person can be let into the building regardless of the screening results (perhaps it was a false positive or an inaccurate reading) or to determine if the person should be subject to a continuing health order that limits the person’s ability to infect others – quarantine or isolation are among the options. It should go without saying, but I will stress, you do not want to determine that a person is too sick to come into a government building but then put the person out into the public to infect others.

Sixth, as noted previously, if a person is screened out, that person’s rights under other laws may be affected and you need to have in place accommodations to protect the person against the loss of those rights.

 

Are government facilities required to provide gloves and masks to the public if they are required to be worn in the facility?

Certainly, providing them is the best option because it eliminates arguments about rights being denied. On the other hand, governments that have policies that require the public to wear shirts and shoes when entering the public buildings generally do not provide shirts or shoes to those who need them. Some rules are accepted as reasonable restrictions that are customary within our society. To the extent masks and gloves are readily available, the same concept ought to apply.

 

Do local governments have the right to deny access to public facilities if a member of the public refuses to have a temperature check, answer health questions, wear a mask, etc.?

Each state is different. And this goes back to the first question as to what authority does the government have to limit access to a public space.  As I tell my local government law students, the first question you must ask is, “What authority do we have to enact a measure, and where do we get that authority?” Generally, as a property owner, the government (like any other property owner) can exercise control over the use of the property and access to it. However, that general rule is often restricted by state laws or constitutions. Nevertheless, assuming you have the authority, whether express or implied, to regulate attire such as requiring shirts or shoes, that same authority likely extends to determining other restrictions, especially those based on demonstrable health and safety bases. In the context of the pandemic, if there are emergency declarations and emergency health orders, those ought to include requirements for limiting entry to government and other businesses where appropriate and may form a basis for the authority to deny access if that authority does not otherwise exist.

In the previous discussion, I mentioned providing accommodations for people who are denied access so that other of their rights are not abridged and that reasonable accommodations should be part of any decision to deny access. 

These issues are rapidly evolving, and we have been offering our members the opportunity to discuss them and share views weekly through a conference call where we try to collectively answer these questions as well as the emerging ones.

 

IMLA is a nonprofit, professional organization that has been an advocate and resource for local government attorneys since 1935. IMLA serves as an international clearinghouse of legal information and cooperation on municipal legal matters. IMLA collects from and disseminates information to its membership across the United States and Canada and helps governmental officials prepare for litigation and develop new local laws.

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