California Governor Issues New COVID-19 Executive Order Impacting Local Government

In a continued effort to address the COVID-19 state of emergency, California Gov. Gavin Newsom issued Saturday a new Executive Order, N-35-20. For local government agencies, there are four sections of the Order that are particularly relevant:

1. Emergency Updates Do Not Violate the Brown Act.

The Order suspends the Brown Act to the extent that Government Code section 54952.2 would prevent a federal, state or local government official from providing updates on emergency response collectively to the entire city council or agency board. Members of the city council or agency board may ask questions of the official providing the briefing. However, the council or board members still cannot discuss or deliberate on any matters or take any action. Effectively, this enables a council or board to receive a single, efficient update from other officials, but the council or board members will have to be cautious to only ask clarifying questions and not discuss or make policy. It must only be a briefing. To the extent potential council or board actions are to be considered or even discussed, the city or other agency should still call an open and public Brown Act meeting.

2. Local Ordinances that Restrict Essential Deliveries are Suspended.

The Order suspends any local ordinances, including noise limitations, that restrict, delay or otherwise inhibit the delivery of food products, pharmaceuticals and other essentials. Many cities may have ordinances that prohibit delivery trucks from making deliveries or idling during certain hours, and it appears the Order is intended to suspend such restrictions to ensure that retail providers are timely stocked. The Order may be more broad than this, and cities and other agencies should review this provision carefully before enforcing any local ordinance that could restrict deliveries of essentials.

3. Time-Based Limitations Imposed on Working After Retirement are Suspended.

Section 3 of the Order confirms that retirees working under the working after retirement rules for local governments are also exempt from the time-based limitations referenced in Executive Order N-25-20 Section 7, issued March 12, if they are hired or retained in employment to ensure adequate staffing to respond to the COVID-19 pandemic. This is consistent with the position CalPERS took in Circular Letter 200-015-20, in response to Executive Order N-25-20: that CalPERS retirees working for CalPERS employers, otherwise referred to as retired annuitants, are exempt from the time-based limitations. Specifically, the following exceptions will apply to any retiree subject to the working after retirement rules (not just CalPERS retirees) if the retiree is employed to ensure adequate staffing to respond to the COVID-19 pandemic:

• Hours worked between March 4, 2020 and the date the state of emergency is lifted will not count toward the 960-hour per fiscal year limitation,
• The 180-day waiting period will be suspended and
• The 60-day waiting period under the bona fide separation rules will also be suspended.

The California Department of Human Resources must be notified of any individual employed under these exemptions. Notification should be sent to CAStateofEmergency@calhr.ca.gov.

4. The Time for Presenting a Government Claim is Extended 60 Days.

In general, claimants against local public agencies must properly submit a Government Claim within either 6 months or 1 year, depending on the nature of the claim. This Order adds 60 days to the claim submission deadline. Though the time for the State to respond to claims was extended for 60 days as well, Newsom did not make a similar extension for local government agencies. Cities and districts will, as of now, still have to respond to claims within the standard 45-day period.

This is not an exclusive summary of Executive Order N-35-20, which addresses other topics as well. In particular, it also contains provisions that impact school districts and agencies delivering health care.

For more information about this Order and how it impacts your agency, please contact the authors of this Legal Alert listed to the right in the Municipal Law and Employee Benefits & Executive Compensation practice groups, or your BB&K attorney.

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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.