On March 25, 2020, Governor Andy Beshear issued an executive order suspending in-person city government activities “that are not necessary to sustain or protect life, or to supporting Life-Sustaining Businesses.”
The order will become effective at 8 p.m. EDT on March 26. The order also suspends any statutory deadlines that require in-person activities in conflict with its directives. For any in-person government activity that must continue, the government is required to ensure that the Centers for Disease Control and Preventions (CDC) social distancing and hygiene standards are continually observed. These requirements will remain applicable during the state of emergency declared by the Governor on March 6.
Necessary Government Activities
The executive order identifies necessary government activities to include work performed by critical infrastructure workers1, workers in law enforcement, public safety, and first responders. It specifically recognizes necessary government operations to include: public transit; trash pick-up and disposal; election management and oversight; operations necessary to enable transactions that support the works of a business’s or operation’s critical infrastructure workers; and maintenance for safe and sanitary public parks to allow for outdoor recreation. The order specifically states that the enumerated list of necessary activities is not exhaustive and recognizes the need for support services to continue city operations. So, any city departments or positions that support necessary governmental functions are also categorized as necessary government activities.
While nothing in the order requires cities to shutter city hall and send everyone home, it does require city officials to exercise careful judgment in deciding what staff is necessary to continue city services. Cities should endeavor to employ remote work for city employees where possible and to restrict general access to city facilities that are not related to outdoor recreation. Several cities have developed methods to maintain staffing levels while adhering to the CDC 6 foot social distancing guidelines. Some cities are using rotating staff schedules with department personnel working staggered shifts so that those assigned to office stations in close quarters can work on alternating shifts to avoid close contact. Other cities are structuring to allow staff or portions of their staff to telework to reduce the number of individuals in close proximity. These approaches effectively continue city business while protecting employees and should be employed wherever possible.
Social Distancing and Safe Hygiene Practices
In instances where continued operations of in-person government activities must continue, the order requires that the social distancing and hygiene guidelines issued by the CDC and Kentucky Department of Public Health are observed to the fullest extent possible. Employees must maintain a physical separation of 6 feet or more and should be asked to depart the work premises if sick. Employers must ensure that employees are encouraged to frequently wash their hands and have access to hand sanitizer. Offices, workspaces and frequently touched items must receive regular cleaning and disinfection.
Suspension of Statutory Deadlines
The order suspends “[A]ny statutory deadlines that conflict with the suspension of in-person government activities...” This language suspends planning and zoning, code enforcement, and any other statutory deadlines that could force cities to conduct in-person hearings or meetings.
In addition, the order authorizes the delay in granting on-site inspections of public records in response to an open records request. The breadth of this order may create a reasonable basis for failure to provide records, or in some instances even to respond to open records requests within the three-day response deadline. There may be additional statutory deadlines applicable to cities that are suspended by this order that require in-person work unrelated to activities that are necessary to sustain or protect life. To the extent possible, cities should rely on this provision to eliminate unnecessary in-person contact in the government setting.
Impact on Government Meetings
As indicated in the text of the document, cities should interpret the order broadly to prevent any in-person work that is not necessary to protect or sustain life. This applies equally to in-person meetings of city legislative bodies and their various, boards, commissions, and other authorities. Guidance from pervious executive orders from the governor and the recent opinion from the Kentucky Office of Attorney General, OAG 20-05, waive requirements for in-person meetings for all public agencies if the meetings are conducted by video teleconferencing.
These directives stopped short of prohibiting in-person meetings. Governor Beshear’s most recent order prohibits in-person activities, including such meetings, unless they are needed to support necessary government activities as described above. Therefore, unless the meeting is conducted using video teleconferencing, any meeting that is not for the sole purpose of supporting necessary activities should be delayed.
 The order defines critical infrastructure according to the federal critical infrastructure list from the Department for Homeland Security that can be found at https://www.cisa.gov/publicati....
Please contact KLC’s Municipal Law Department for additional information.