The primary authority for response to disasters and major emergencies in New York State is Article 2-B of the Executive Law. The law, provides for comprehensive emergency planning and response by:

1. Keeping local government and emergency service organizations “on the first line of defense,” with the state providing “appropriate supportive services to the extent necessary.”
2. Authorizing local chief executives to “take an active and personal role” in disaster preparedness programs and in carrying out such programs.
3. Coordination of state and local response functions.
4. Organization of state resources to provide responses for “disasters which are beyond the capability of local governments and emergency service organizations.”
5. Development of state and local plans, organizational arrangements and response capability as may be necessary.

On March 4, 2020, the definition of “disaster” covered by the law was amended to include an “impending or urgent threat,” rather than just an event that was already in progress. The amendment also added “disease outbreak” to the list of disaster events.

DECLARATION OF LOCAL EMERGENCY

Executive Law Article 2-B contains specific provisions for local preparedness and responses. Executive Law §24(1) allows local chief executives to declare a “local state of emergency” in case of “disaster, rioting, catastrophe, or similar public emergency” within the locality’s “territorial limits,” or the “reasonable apprehensive of immediate danger thereof.” A “chief executive” is defined to include a county executive, city or village mayor, and town supervisor. Executive Law §20(f). A state of emergency may only be declared if the chief executive makes a finding “that the public safety is imperiled.” However, in case of a radiological accident, the chief executive cannot declare an emergency, and can only request that the governor do so.

ISSUANCE OF EMERGENCY ORDERS

Under Executive Law §24(1), upon declaration of a local emergency, the chief executive “may promulgate local emergency orders to protect life and property or to bring the emergency situation under control,” and “[a]s illustration, such orders may involve:”

1. the establishment of a curfew and the prohibition and control of pedestrian and vehicular traffic, except essential emergency vehicles and personnel;
2. the designation of specific zones within which the occupancy and use of buildings and the ingress and egress of vehicles and persons may be prohibited or regulated;
3. the regulation and closing of places of amusement and assembly;
4. the suspension or limitation of the sale, dispensing, use or transportation of alcoholic beverages, firearms, explosives, and flammable materials and liquids;
5. the prohibition and control of the presence of persons on public streets and places;
6. the establishment or designation of emergency shelters, emergency medical shelters, and in consultation with the state commissioner of health, community based care centers;
7. the suspension within any part or all of its territorial limits of any of its local laws, ordinances or regulations, or parts thereof subject to federal and state constitutional, statutory and regulatory limitations, which may prevent, hinder, or delay necessary action in coping with a disaster or recovery therefrom whenever (1) a request has been made pursuant to subdivision seven of this section, or (2) whenever the governor has declared a state disaster emergency pursuant to section twenty-eight of this article. Suspension of any local law, ordinance or regulation pursuant to this paragraph shall be subject to the following standards and limits:
   1. (i) no suspension shall be made for a period in excess of five days, provided, however, that upon reconsideration of all the relevant facts and circumstances, a suspension may be extended for additional periods not to exceed five days each during the pendency of the state of emergency;
   2. (ii) no suspension shall be made which does not safeguard the health and welfare of the public and which is not reasonably necessary to the disaster effort;
   3. (iii) any such suspension order shall specify the local law, ordinance or regulation, or part thereof suspended and the terms and conditions of the suspension;
   4. (iv) the order may provide for such suspension only under particular circumstances, and may provide for the alteration or modification of the requirements of such local law, ordinance or regulation suspended, and may include other terms and conditions;
   5. (v) any such suspension order shall provide for the minimum deviation from the requirements of the local law, ordinance or regulation suspended consistent with the disaster action deemed necessary; and
   6. (vi) when practicable, specialists shall be assigned to assist with the related emergency actions to avoid adverse effects resulting from such suspension.

For an exhaustive list of the parameters of orders, notice requirements, and duration of effectiveness, see Executive Law §24. Among other requirements, orders must be published and filed in quadruplicate, and are effective for up to 5 days but can be extended.

EXECUTIVE ORDER 202.5

Executive Order 202.5 went into effect on March 18, 2020, which states: “Notwithstanding section 24 of the Executive Law, no locality or political subdivision shall issue any local emergency order or executive order with respect to response of COVID-19 without the approval of the State Department of Health.” While this provision of the Executive Order should be clarified, we interpret this as probably only pertaining to direct response to COVID-19, such as quarantines or rules for medical facilities and nursing homes, not orders pertaining to subjects like postponing meetings, closing facilities and changing town operations. Also, the Executive Order does not apply to orders issued prior to March 18. However, to be safe it would be prudent to send all emergency orders to the State Health Department for approval. Orders can be sent for approval to localordersreview@health.ny.gov.  The written request for approval must contain the following information:

• Name and full contact information of the local chief executive;
• Draft written copy of the proposed executive order;
• Method of enforcement; and
• Date/time the local government seeks to commence any actions contained in the emergency order.

ENFORCEMENT

A violation of a local emergency order is a class B misdemeanor. When an emergency is proclaimed, a county or city chief executive may request that the governor remove inmates from county institutions. In case of a local emergency, a county chief executive, or in New York City, the Mayor, may also ask the Governor to provide state assistance.

POWERS

Upon the occurrence or threat of a disaster, a local chief executive can use “any and all facilities, equipment, supplies, personnel and other resources of his political subdivision in such manner as may be necessary or appropriate to cope with the disaster or any emergency resulting therefrom.” A local chief executive may also seek assistance from other local governments, including loaning or leasing “services, equipment, supplies or other resources,” such as civil defense and other disaster response forces. In the course of a disaster, city and county chief executives may utilize the civil defense forces within their jurisdiction. The county chief executive may coordinate responses to requests for assistance received by other local chief executives of political subdivisions within the county, including the utilization of local disaster preparedness and civil defense plans. All local governments are deemed participants in the intrastate mutual aid program, which complements existing mutual aid agreements.

A municipality is specifically authorized to pass a local law to provide for continuity of local government during an emergency. Pursuant to powers under the Municipal Home Rule Law and other state laws, localities may also be able to pass their own emergency response legislation, provided such laws are not inconsistent with state law.

IMMUNITY

Local officials are given extensive immunity from liability for disaster response activities. A political subdivision is not liable for “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of any officer or employee in carrying out” local government disaster response. No elected or appointed local officer can “be held responsible for acts or omissions of municipal employees, disaster preparedness forces or civil defense forces when performing disaster assistance.”

Further, county and city chief executives are not liable for the actions of civil defense forces “when performing disaster assistance.” In addition, civil defense forces of a county or city acting during disaster assistance are considered to be undertaking a “civil defense drill or training exercise,” so they are immune from liability under New York Defense Emergency Act §113.

Municipalities concerned about the “impending or urgent threat” of COVID-19 should consider the full spectrum of powers available to them under Executive Law 2-B. An existing outbreak in your community is not required to declare a state of emergency or to enforce safety measures. For municipalities considering the impacts of COVID-19 or already experiencing them, state law provides wide latitude for municipalities to safeguard the safety, health, and well–being of their communities.

Knauf Shaw LLP has extensive experience in advising local municipalities in New York. For questions on municipal powers during the coronavirus pandemic, contact Alan Knauf or Amy Kendall for more information.