In the most recent legislative session, the General Assembly amended the state’s emergency management act to impose new publication requirements on county and city state of emergency declarations (S.L. 2020-83, Sec. 11.7). Prior to enactment of HB593 which amended GS 166A-19.31(d), county and city state of emergency declarations went into effect “upon publication.” Although “publication” was not specifically defined (other than to exempt declarations from newspaper publication under GS 1-597), the statute allowed publication to include disseminating reports of the declaration, including restrictions and prohibitions imposed under the declaration, in the mass media or by other methods to communicate the information broadly and quickly to the public. The text of the declaration could be disseminated “as soon as practicable” after it was issued. Now, local state of emergency declarations, and any restrictions or prohibitions imposed under those declarations, do not become legally effective and enforceable until the county or city issuing the declaration does two things: (1) posts a written, signed copy of the declaration “conspicuously” on its website (if the jurisdiction has a website); and (2) submits a written, signed copy of the declaration to the state’s WebEOC critical incident management system. What does this change mean for county and city emergency authorities and operations?
The powers granted counties and cities under GS Chapter 166A, the state’s emergency management act, have not changed in substance. What has changed is the notice that must be provided before counties and cities may exercise these powers. Prior to the amendment to GS 166A-19.31(d), a county or city could declare a state of emergency and impose restrictions or prohibitions under that declaration without having to immediately memorialize those actions in a written and signed declaration. The law recognized that local officials might need to exercise emergency powers under extraordinary circumstances without access to administrative resources to type and sign a formal declaration or time with which to take these administrative actions in the face of an immediate threat. Sudden events such as tornados, terrorist attacks, explosions, radiological accidents, chemical or other hazardous material incidents, or a sudden eruption of civil unrest (all of which fall within the definition of an emergency under GS 166A-19.3(6)) can occur with little or no warning. In the face of emergencies such as these, local officials might need to take swift action declaring a state of emergency and imposing restrictions to protect public health and safety. While the prior law did require these actions to be memorialized in writing and distributed “as soon as practicable,” having a written, signed declaration in place at the moment the emergency was declared was not required for the declaration to be immediately effective and enforceable. Now, it is.
Under the amendment to GS 166A-19.31(d), before a local state of emergency can take effect and be enforceable, the declaration must be:
- Memorialized in writing and signed by the county or city official authorized to do so under the jurisdiction’s emergency ordinance, and
- Electronically published in two locations:
(1) The jurisdiction’s website (if it has a website); and
(2) The Department of Public Safety’s WebEOC critical incident management system.
The declaration, and any restrictions or prohibitions imposed under the declaration, cannot go into effect until both electronic publication requirements are satisfied. These requirements also apply to any subsequent amendments to a declaration that impose new restrictions or prohibitions or modify existing ones previously imposed. For example, a county issues a state of emergency declaration three days in advance of a major hurricane; the declaration is subject to the new electronic publication requirements. Two days before the hurricane’s expected impact the county orders a mandatory evacuation; the evacuation order (which is technically an amendment to the original declaration) is subject to the new electronic publication requirements. After the storm passes the county imposes a curfew due to widespread damage and power outages; the curfew order (again, another amendment to the original declaration) is subject to the new electronic publication requirements. And so on throughout the event until the state of emergency declaration itself is rescinded – all subsequent modifications to the original declaration must satisfy the new electronic publication requirements in order to be legally effective and enforceable.
Where the local jurisdiction has advance warning of the emergency, as in the hurricane example described above, the administrative burden imposed by the new electronic publication is minimal. In fact, it has become common practice for counties to post their state of emergency declarations on their websites and in WebEOC. Some counties also post city declarations in WebEOC. However, counties and cities should evaluate their emergency operations plans to ensure procedures are in place to satisfy the new electronic publication requirements in emergency situations for which there is no advance warning, such as tornados, terrorist attacks, explosions, radiological accidents, chemical or other hazardous material incidents, or a sudden eruption of civil unrest. Counties and cities also should make plans to address other challenges they might face in any emergency, including:
- Power and internet outages (which might impede administratively processing and electronically publishing a written, signed declaration),
- Blocked roads or unsafe travel conditions (which might impede obtaining the local official’s signature on the declaration), and
- Evacuation contingencies (which might result in officials and staff not being readily available to administratively process and electronically publish the declaration).
Under the new law, regardless of the immediacy or severity of the emergency event, local declarations are not effective or enforceable until the new electronic publication requirements are satisfied.
In some emergency events, a city will consent to being included under a county’s state of emergency declaration. In this instance, it appears that the new electronic publication requirements will be satisfied if the county electronically publishes the declaration on behalf of the city because the county is the issuing jurisdiction (although there is no harm in the city also posting the declaration on the city’s website). A city that issues a declaration independent of the county must publish a written, signed copy of the declaration on the city’s website (if it has one). In either instance, the city must rely on the county to post the declaration in WebEOC.
Counties and cities may continue to use other methods to communicate their declarations broadly and quickly. Doing serves the public by making it aware of the imminent or present danger and any restrictions, prohibitions, or other directives included in the declaration. However, these broad communications mechanisms, while important, do no satisfy the new electronic publication requirements.
The amendments to GS 166A-19.31(d) went into effect on July 1, 2020. The electronic publication requirements apply to any new declarations issued on or after July 1, 2020 as well as any amendments or modifications to preexisting declarations. However, the legislation does not address whether the new electronic publication requirements apply to declarations issued prior to July 1, 2020 that a county or city wishes to continue to enforce after July 1st. If a county or city wishes to enforce a restriction or prohibition imposed prior to July 1st, it is prudent to comply with the new electronic publication requirements to avoid a legal challenge to those pre-July 1st restrictions and prohibitions on that basis.
What if a local state of emergency declaration does not include any restrictions or prohibitions? Is it still subject to the new electronic publication requirements? GS 166A-19.31(d) states that “prohibitions and restrictions imposed by a declaration. . .shall take effect in the emergency areas immediately upon publication of the declaration.” It’s not clear which “declaration” the statute applies to – only an amendment to a declaration that imposes a specific restriction, or the original declaration itself that triggers emergency powers to impose restrictions (either immediately in that declaration or by subsequent amendment to the original declaration)? It is possible to interpret the statute’s electronic publication requirements to not apply to a state of emergency declaration which does not impose any restrictions or prohibitions. Under this theory, the same would be true for an amendment to the original declaration terminating it at the end of the emergency event. However, given that the statue is subject to varying interpretations and in an abundance of caution to ensure the legal validity of the original declaration upon which subsequent amendments imposing restrictions or prohibitions are based, I recommend erring on the side of caution and complying with the electronic publication requirements even for declarations that do not specifically impose restrictions or prohibitions (at least not at the time issued).