As state and local government officials deal with the rapidly evolving COVID-19 pandemic, local governments are raising questions about who has the authority to take action at the local level and what actions they can take. My colleague Jill Moore’s blog post discusses the authority of local health directors to impose restrictions on affected individuals such as ordering isolation and quarantine, and enforcing other communicable disease control measures. But who has the authority to take broader measures such as restricting mass gatherings and closing public places? Who has the authority to close schools? Who can declare a “public health emergency?” Who has operational control at the local level? This blog discusses emergency authorities at the local level in the context of a communicable disease emergency.

What is a “public health” emergency?

First, as a reminder, what is an “emergency?” The state Emergency Management Act (G.S. Chapter 166A) defines an emergency as “[a]n occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or man-made accidental, military, paramilitary, terrorism, weather-related, public health, explosion-related, riot-related cause, or technological failure or accident, including, but not limited to, a cyber incident, an explosion, a transportation accident, a radiological accident, or a chemical or other hazardous material incident.” (G.S. 166A-19.3(6)). Although state law does not define a “public health emergency,” the broader definition under Chapter 166A specifically includes “public health” among the enumerated threats that can constitute an emergency. Thus, an emergency can include a public health situation involving an “occurrence or imminent threat of widespread or severe damage, injury, or loss of life . . .” In the case of a pending natural disaster such as an oncoming hurricane or winter ice storm, it is possible to assess the degree to which the threat is imminent. In the case of a communicable disease event, especially under the current circumstances with COVID-19, it is more difficult to asses the degree to which the threat is imminent. Nonetheless, a city or county can declare a local state of emergency if it determines the situation it faces meets the statutory definition of an emergency. (G.S. 166A-19.22(a))

Who can declare a local state of emergency?

Under Chapter 166A, a local state of emergency can be declared by a city or county official who is authorized to do so under the jurisdiction’s local emergency ordinance. (G.S. 166A-19.22(a)) Typically, local emergency ordinances delegate this authority to the Chair of the County Board of Commissioners or the chair’s designee (for county declarations), or to the Mayor or the Mayor’s designee (for municipal declarations). While a local health director is the only local official with the authority to order isolation and quarantine of individuals (see Jill Moore’s blog post for more information on local health directors’ authorities), a local health director does not have the legal authority to declare a “public health emergency.” A local state of emergency declared in response to a public health threat is issued in the same manner and by the same officials as in other emergency events such as natural or man-made disasters. For more information on local state of emergency declarations, see this blog post.

What emergency authorities are triggered by a local state of emergency?

Chapter 166A vests cities and counties with the authority to impose restrictions and prohibitions under a local state of emergency declaration if the jurisdiction has included these restrictions and prohibitions in its local emergency ordinance. (G.S. 166A-19.31) Under a local state of emergency, cities and counties may impose restrictions and prohibitions on:

1. The movements of people in public places, including any of the following:
   1. Imposing a curfew.
   2. Directing and compelling the voluntary or mandatory evacuation of all or part of the population from any stricken or threatened area within the governing body’s jurisdiction.
   3. Prescribing routes, modes of transportation, and destinations in connection with evacuation.
   4. Controlling ingress and egress of an emergency area, and the movement of persons within that area (an emergency area being the geographic area of the city or county covered under the local state of emergency declaration).
   5. Providing for the closure, within the emergency area, of streets, roads, highways, bridges, public vehicular areas, or other areas ordinarily used for vehicular travel, except to the movement of emergency responders and other persons necessary for recovery from the emergency (for more information on road closure authority, see this post).
2. The operation of offices, business establishments, and other places to or from which people may travel or at which they may congregate.
3. The possession, transportation, sale, purchase, and consumption of alcoholic beverages.
4. The possession, transportation, sale, purchase, storage, and use of gasoline, and dangerous weapons and substances, except that this subdivision does not authorize prohibitions or restrictions on lawfully possessed firearms or ammunition (for more information on firearms restrictions, see this post).
5. Other activities or conditions the control of which may be reasonably necessary to maintain order and protect lives or property during the state of emergency.

These authorities are discussed more fully in this post. It is important to remember that these authorities can be exercised only when a local state of emergency has been declared and only if these authorities are included in the jurisdiction’s local emergency ordinance.

Which emergency authorities might be used in response to COVID-19?

In theory, all of them. Practically speaking, those which might be most relevant in responding to COVID-19 at the local level are restricting the movement of people in public places (such as closing public facilities), placing limits on business operations, and restricting access to places to or from which people may travel or at which they may congregate (such a limiting the size of or prohibiting mass gatherings). To the extent that local measures deemed necessary do not fit into one the specific emergency powers listed above, local governments may rely on the broader authorization to impose restrictions on “other activities or conditions the control of which may be reasonably necessary to maintain order and protect lives or property during the state of emergency.”

These emergency powers are not, however, unlimited. Local governments may impose emergency restrictions and prohibitions only where there is a factual basis for doing so and only to the extent that the restrictions or prohibitions are reasonably related to the threat posed. While our state’s appellate courts grant great deference to local officials in taking emergency action, they nonetheless have held that those actions cannot be arbitrary or capricious but instead must be authorized by statute, based in fact, reasonably tailored to address the threat presented, and enforced in a non-discriminatory fashion. See, State v. Dobbins, 277 N.C. 484, 178 S.E.2d 449 (1971); State v. Allred, 21 N.C.App. 229, 204 S.E.2d 214 (1974). In dealing with any communicable disease emergency, including the current COVID-19 threat, it is important that local officials consult with their local health director and state public health officials to determine whether emergency restrictions and prohibitions they are considering are supported by credible facts and serve a valid public health purpose in addressing the threat.

The Governor has already declared a State of Emergency; must a city or county also declare one?

Governor Cooper declared a State of Emergency (EO#116] in response to COVID-19 on March 10^th. The Governor’s declaration triggers executive emergency powers under Chapter 166A and consumer price gouging protections. It does not trigger local emergency powers. If a city or county wishes to exercise any of the emergency powers discussed above, it must declare a local state of emergency. County and city officials should consult with local and state emergency management and public health officials in making this decision.

Must a city or county declare a local state of emergency to take any actions in response to COVID-19?

Not necessarily. There are actions that a local government may take under its own authority to respond to COVID-19 without declaring a local state of emergency. These actions primarily relate to local government control over its own facilities, events, and employees. For example, because local governments exercise control over their own property, they may close public facilities such as public buildings, parks and greenways, and recreation facilities when deemed appropriate even if no local state of emergency has been declared. However, if public facilities remain open but there is a need to restrict the public’s access to those facilities, the legal authority to do so is triggered under a local state of emergency declaration. Similarly, a local government may choose to cancel its own public events (such as a city-sponsored concert or parade) without declaring a state of emergency. However, if a local government deems it necessary to restrict mass gatherings organized by private entities, again, the authority to do so must be exercised under a local state of emergency. A local government may direct its own employees to work remotely without declaring a state of emergency, but if it deems it necessary imposing similar measures on private employers, it can do so only under a local state of emergency (for more information about COVID-19 and the workplace, see my colleague Diane Juffras’ blog post).  Finally, local government officials must comply with communicable disease control measures regardless of whether a local state of emergency has been declared, and they should heed public health recommendations like social distancing.

Many local governments have raised questions about the impact of COVID-19 on governing board meetings.  Can local boards meet electronically?  Can they restrict in-person attendance by the public?  How should governing boards handle legally required public hearings and public comment periods?  For answers to these questions and more on this topic, see my colleague Frayda Bluestein’s blog post.

How do city and county local emergency authorities relate to those of the local health director?

The authorities of local health directors are not dependent on the declaration of a local state of emergency. Local health directors have independent authority at the local level to order quarantine and isolation and enforce communicable disease control measures. At the local level, the authority to order quarantine or isolation is vested solely in the local health director; a city or county cannot itself order a quarantine or isolation under a local state of emergency.

However, a local health director’s authority may not be sufficient to fully respond to the COVID-19 threat. Local health directors’ orders are typically addressed to specific individuals or properties, while the authorities of cities and counties under a local state of emergency are broader. For example, a local health director has the authority to quarantine an individual, or in limited cases a contaminated property, but the quarantine authority does not apply blanketly to larger groups of people or geographic areas. If there were a demonstrated need to limit public access to a geographic area, that restriction could be imposed by a city or county under a local state of emergency.

Who has the authority to close public schools?

Local boards of education set the school calendar for public schools within their jurisdictions and are authorized to adjust the calendar when schools are closed due to severe weather conditions, energy shortages, power failures, or other emergency situations. (G.S. 115C-84.2(a)(1), (d)) The State Board of Education is also authorized to order extended recesses or adjournment of public schools during a period of emergency in any section of the State where emergency conditions make it necessary. (G.S. 115C-84.2(c)) Thus, the authority to close public schools is clearly vested in local boards of education and the State Board of Education. What if neither the local school board nor the State Board of Education closes public schools when county or city officials believe they should? The emergency powers granted cities and counties under a local state of emergency can be interpreted to include the authority to close both public and private schools. However, city and county officials should coordinate closely with their local school boards and only take such action under a local state of emergency if there is a demonstrated need to do so and local school officials fail to take action.

Can a city or county suspend state law under a local state of emergency declaration?

No. While Chapter 166A grants broad authority to cities and counties under local states of emergency, there is no authority for a city or county to suspend or waive another provision of state law even if a local state of emergency has been declared. For example, state open meetings requirements such as public notice and reasonable measures for public access to the meeting may not be suspended or waived under a local state of emergency.

Where a statute grants local governments flexibility in complying with or enforcing the requirements of that statute, such as temporarily suspending disconnection of water service for public health reasons (see my colleague Kara Millonzi’s blog post on water disconnections during the COVID-19 outbreak), local governments may choose to exercise this flexibility, but they must have specific statutory authority outside of Chapter 166A to do so.

Who is in charge during a public health emergency?

Under Chapter 166A, counties have primary responsibility for control of emergency management functions within the county, including those of municipalities within the county (GS 166A-19.15(a), (c)). The county emergency management director is directly responsible for the organization, administration, and operation of county of emergency management functions (GS 166A-19.15(b)). In a public health emergency, the county emergency management director retains responsibility for coordinating response activities within the county while the local health director serves as the lead local official for providing technical guidance and taking actions that are within the health director’s legal authority such as ordering a quarantine or isolation, or enforcing a communicable disease control measure. For example, in the event of a widespread outbreak of COVID-19, the local health director would advise local officials on communicable disease control measures, order quarantine or isolation when appropriate, provide the staff that would monitor individuals under isolation or quarantine, disseminate public information about the disease and prevention strategies, and help connect residents with needed health services. The local emergency management director would coordinate response activities such as requesting additional resources and assets, establishing emergency mass treatment facilities, or managing limited ingress and egress to and from an infected area.

This dual cooperation between public health and emergency management in a public health emergency is reflected in the NC Emergency Operations Plan for Communicable Disease and Biohazard Response Operations. Under this plan, the NC Division of Emergency Management is designated as the lead response agency and the NC Department of Health and Human Services is designated as the lead technical agency.

For more information . . .

Please visit the School of Government’s COVID-19 resource site for more information, resources, agency website links, and timely updates.