Municipal Law and Legislative Practice

New York State Executive Orders

Posted on: May 26, 2020

The Basics for Virtual Public Hearings – How to be Successful and Efficient

Posted on: May 21, 2020

By: Joshua Brookstein & Neera Roopsingh

The current pandemic is changing every aspect of life and in response, the legal community is adapting and changing accordingly.  A tenet of municipal governance is the requirement to hold public hearings and meetings.  Traditionally, such meetings were held in person.  Although, New York State law has allowed video meetings for a long time, agencies rarely utilized this option.  Under the Public Officers Law, board members could attend a public meeting via videoconference as long as the public notice of the meeting stated that video conferencing would be utilized, and that the notice identified the location of the meeting and that the public had the right to attend the meeting at any of the meeting locations.  However, since the COVID-19 pandemic, virtual meetings have become the norm, and may well become the method of choice for hearings for months ahead.  In response to the health crisis, Governor Cuomo has issued Executive Orders which temporarily dispenses with the requirement for the public to physically be present at a meeting or public hearing.[1] The Governor’s Executive Orders have also allowed for teleconference hearings that aren’t otherwise allowed under the applicable statute.    

Proper notice has always been, and will remain, a strict requirement under the law.  Municipalities conducting a virtual public hearing would be well advised to continue strict adherence to this requirement.  Further, notice of virtual hearings require additional information not ordinarily included in a notice of in- person hearings.  Notice for a virtual hearing should contain:

  • The name of the public body holding the hearing;
  • The date and time of the hearing;
  • The method that the public body will be utilizing to conduct the hearing, i.e. videoconference or teleconference;
  • Means by which the public can view or listen to the hearing (i.e. conference call number, Zoom Meeting ID and Password); and
  • The manner in which an individual may submit comment, for example via e-mail,  the deadline to receive such comments, or whether the hearing will be held open for a specific number of days to receive such comment, and that the written comments will be made part of the record.

Meeting minutes are still required, and it is best practice to have a stenographer present during the hearing as meetings must be recorded and transcribed. 

Regardless of which  platform (Zoom, Microsoft Teams, conference call etc.),the public body will utilize to conduct the hearing, it may be a worthwhile investment to hold a “test meeting”, especially if that meeting is your first virtual meeting.  A “test meeting” will allow municipal staff and public body members to practice and gain familiarity with the platform being used and to formulate a plan of contingencies based on technological problems which arise during the test.  From a practical standpoint, it can also help Board members practice identifying themselves before speaking so that the record is clear.  Holding a test meeting will also help ensure that every Board member can connect to the platform and use the microphone and camera to guard against any potential quorum issues that can arise due to not being able to log on.  A test can also ensure that the host of the meeting can control the microphones of participants, so as to help keep the lines of communication open and the record clear.  It will also allow the Board members and staff to practice sharing their screen, to display exhibits, documents, or plans should the need arise during the actual meeting.  Even more importantly, however, it will allow for practice in addressing public comments during the hearing, such as having members of the public sign up to speak so that individuals are not speaking over each other.  This will ensure that the public has the opportunity to voice any opposition, support or concern for any proposed project or issue contemplated by the hearing, thus ensuring a “meaningful opportunity” to be heard.  In turn, the Board would be fully aware of the public sentiment around the issue they are tasked with considering. 

The importance of getting the necessary documents, such as exhibits and plans, prepared and submitted to the public body, i.e. the Village Clerk or Secretary to the Zoning Board, well in advance of the hearing date is also vitally important.  It will allow the Clerk or Secretary of the Board to ensure that these documents are readily available for display and review by the public during the hearing. 

Finally, applicants should have their presentations prepared in advance.  Virtual meetings tend to take longer than in person meetings, technical issues inevitably arise, participants talk over each other, and it is easy for a record to get muddled.  Prepared presentations will allow an applicant to stay on track and not inadvertently miss any of the presentation’s key points or standards of law.  It will allow an applicant to make sure the record is complete so that the Board has all the information they need to render a decision.  A clear and complete record will also prove helpful to the applicant should an appeal be necessary.  The Statute of Limitations for an Article 78 petition challenging a Board’s decision, regardless of how the meeting was conducted, is 30 days and failure to comply is fatal to any challenge regardless of the merits.  Governor Cuomo’s Executive Order 202.8 and subsequent orders have tolled this Statute.  So, although a municipal board may conduct virtual hearings and render decisions, currently an aggrieved applicant has a longer window to appeal.  

[1]. Governor Cuomo’s Executive Order No. 202.1 suspends this requirement of the Open Meetings Law, to allow a public body to hold meetings and hearings without allowing the public to be physically present at the meeting.  The order also authorizes public bodies to meet remotely by conference call or similar service.  Once the Executive Order expires, public notice of a virtual hearing will have to include the locations from which the board members will be participating and state that the public has the right to attend the meeting at any of the meeting locations.

NEW YORK RESPONDING TO COVID-19 UPDATES

Posted on: April 15, 2020

Most recent New York State proposed and enacted legislation in response to COVID-19.

SB 7506  Enacts into law major components of legislation necessary to implement the state education, labor, housing and family assistance budget for the 2020-2021 state fiscal year, including several measures to respond to and mitigate the impact of the COVID-19 outbreak and to provide temporary relief to individuals. Enacted. 


SB 7508 
 Enacts into law major components of legislation necessary to implement the state transportation, economic development and environmental conservation budget for the 2020-2021 state fiscal year, including measures responding to the COVID-19 outbreak. Enacted. 

SB 7500  Makes appropriations for the support of government – State Operations Budget, including funds for transfer by the governor for services and expenses related to the outbreak of COVID-19. Eligible for Governor. 


SB 7503 
 Makes appropriations for the support of government – Aid to Localities Budget, including funds to support the state response to COVID-19 related to elementary and secondary education, and public transportation services. Eligible for Governor. 

SB 8167  An Act to amend the Labor Law, in relation to eligibility for unemployment benefits for certain persons under quarantine for COVID-19.  Specifically, the act would provide benefits to any employee who is under mandatory or voluntary quarantine as a result of COVID-19.  Individuals shall not be required to participate in reemployment services or use vacation time while under quarantine. Pending.

SB 8171  Extends the provisions found in Section 3000-a of the Public Health Law (Good Samaritan Law) to any individual or non-profit organization who voluntarily and without expectation of monetary compensation renders first aid or emergency treatment to an individual who is suffering and or has been infected with COVID-19. Pending.


SB 8176
  Authorizes the New York state thruway authority to eliminate all tolls on the New York state thruway for trucks and delivery vehicles transporting essential supplies, including but not limited to, medicine, medical supplies, cleaning products, food, beverages and construction equipment, in response to the outbreak of the COVID-19 pandemic. Pending.


SB 8179 
 Relates to providing relief for business owners and employers affected by COVID-19. Pending.

SB 8182  Authorizes licensed pharmacists to administer an approved vaccine for COVID-19. Pending.

SB 8184  Establishes tiers of essential employees during a state of emergency. Pending.

SB 8186  Establishes a $1000 COVID-19 convalescent plasma donation tax credit for taxpayers who donate COVID-19 convalescent plasma to a clinical laboratory or blood bank. Pending.


SB 8190 
 An Act to establish the Emergency Coronavirus Affordable Housing Preservation Act of 2020  to implement protections to reduce the harm to New York residents and ensure safe, decent, sanitary, affordable housing and financial stability during the novel coronavirus disease, COVID-19, crisis and all other public emergencies. Pending.


SB 8192 
 Provides that no default in the payment of rent due or judgment of possession shall be entered between March 7, 2020 and a date six months after the expiration of the state disaster emergency. Pending.

SB 8193 An Act amend the real property tax law, in relation to authorizing a municipality to provide for the payment of delinquent taxes.  Pending.

SB 8196  Establishes a tax credit for first responders during COVID-19, outbreak. Pending.


AB 8686
  An act to amend the state finance law, the financial services law and the New York state urban development corporation act, in relation to establishing the empire state inclusive value ledger establishment and administration act.  The act would create a master account and system of individual wallets to make and receive payments to state entities and residents of the state; authorizes the disbursement of a portion of unclaimed remittances to workers who have been furloughed or unable to work due to Coronavirus. Pending. 

AB 10169  Amends the Election Law to authorize absentee voting where a voter is unable or averse to appear personally at the polling place because of an imminent, impending or urgent threat resulting from a disease outbreak, including but not limited to COVID-19. Pending. 


AB 10182 
 Extends the renewal of driver’s licenses, non-driver identification cards and inspections of motor vehicles for three months. Pending.


AB 10204 
 Amends the Retirement & Social Security Law; relates to the retiree earnings cap for health care workers during a declared public health related state of emergency declared by the governor. Pending.

AB 10207  Establishes that all voting for the April 2020 presidential primary be conducted by absentee ballot; no application for such shall be necessary and the local board of elections shall provide such ballot at least 15 days prior to April 28, 2020. Pending.

AB 10208  Establishes the Coronavirus Pandemic Small Business and Not-For-Profit Organization Loan Program. Pending.

New York State Legislation Responding to COVID-19

Posted on: April 2, 2020

SB 7919  Temporarily expands the definition of disaster in state law to include disease outbreak and permits the Governor to issue any directive necessary to respond to a state disaster emergency. Makes an appropriation of $40 million from the State Purposes Account of the General Fund for responding to the outbreak of coronavirus disease. Enacted.

SB 8091  Provides provisions for certain employee benefits when such employee is subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19. Enacted.

Summary:

  • The bill provides protections for employees of private and public employers who are subject to a mandatory or precautionary order of quarantine related to COVID-19 (“quarantine”).
  • Employees working for an employer with 1-10 employees, subject to quarantine will receive unpaid sick days until termination of quarantine and will immediately qualify for paid family leave and temporary disability benefits, plus full job protection.
  • Employees working for an employer with 11-99 employees and employers with 1-10 employees with a net income of $1 million a year, subject to quarantine will receive five paid sick days and will immediately qualify for paid family leave and temporary disability benefits, plus full job protection.
  • Employees working for an employer with 100 or more employees, and public employees, subject to quarantine will receive paid sick days for the entirety of the quarantine (up to 14 days), plus full job protection.
  • Employees will qualify for paid family leave to care for a minor dependent child who is subject quarantine.
  • This law goes into effect immediately.

SB 7996/AB 10189  An act to amend the Education Law, in relation to the attendance of minors upon full day instruction and the conditions under which districts, including the city school district of the city of New York, are entitled to an apportionment of state aid and the closure of schools due in response to COVID-19.  The Bill provides that school districts are entitled to an apportionment of state aid for the closure of schools due in response to the novel coronavirus, even when no state of emergency has been declared.  Pending. 

SB 8014  An act in relation to providing that certain schools shall experience no financial harm for reduced enrollment or inability to operate for the full 180 session days due to the outbreak of COVID-19.  The bill provides that certain schools receive tuition payments from the state for any period of time such schools are required to close in response to the outbreak of COVID-19. Pending. 

SB 8041/AB 10172  Amends the Volunteer Firefighters’ Benefit Law and the Volunteer Ambulance Workers’ Benefit Law, in relation to COVID-19 exposure during a state of emergency.  The bill proposes to amend the applicable laws so that a volunteer firefighter or volunteer ambulance worker who during the course of their duties is exposed to COVID-19 would be eligible for immediate testing and treatment.  Any condition, impairment of health, or death resulting from COVID-19 would be covered by the volunteer firefighters benefit law or volunteer ambulance workers’ benefit law. Pending. 

AB 10169  Amends the Election Law; authorizes absentee voting where a voter is unable or averse to appear personally at the polling place because of an imminent, impending or urgent threat resulting from a disease outbreak, including but not limited to COVID-19. Pending. 

AB 10182  Extends the renewal of driver’s licenses, non-driver identification cards and inspections of motor vehicles for three months. Pending.

AB 10204  Amends the Retirement & Social Security Law; relates to the retiree earnings cap for health care workers during a declared public health related state of emergency declared by the governor. Pending.

AB 10207  Establishes that all voting for the April 2020 presidential primary be conducted by absentee ballot; no application for such shall be necessary and the local board of elections shall provide such ballot at least 15 days prior to April 28, 2020. Pending.

AB 10208  Establishes the Coronavirus Pandemic Small Business and Not-For-Profit Organization Loan Program. Pending.

SB 8107  Requires SUNY and CUNY schools to refund students for housing credits and boarding charges used or charged for the period of time when such schools are closed or shut down due to the coronavirus pandemic. Pending.

SB 8110  An act to amend the economic development law, in relation to establishing the small business containment assistance program; and making an appropriation therefor.  The amendment aims to provide small businesses within COVID-19 designated containment area grants up to $10,000 per business to help offset lost revenue due to the impact of being located within the zone.  Pending.

SB 8109  This bill would suspend mortgages and loans from state-chartered banks and state-chartered credit unions for small businesses and restaurants that have closed or reduced services due COVID-19. Pending.

SB 8112/AB 10160  Amends the Election Law; decreases the number of signatures needed for designating petitions and independent nominations by one-third for political subdivisions, wholly or in part, within a county in which one or more residents have been confirmed to be diagnosed with COVID-19 for year 2020. Pending.

SB 8117  Relates to a presumption regarding impairment of health caused by COVID-19 and in relation to sick leave. Provides police, sheriffs, corrections, parole and probation officers with medical care coverage and sick leave if such employee is exposed to COVID-19 while working and then tests positive for COVID-19. Pending.

SB 8118/AB 10183  Amends the General Business Law; prohibits negative credit reporting on consumers who have suffered financial harm as a result of the declared state of emergency relating to COVID-19. Pending.

SB 8119  Amends the transportation Law; relates to paratransit services within the state and city of New York during the coronavirus disease 2019 (COVID-19) pandemic. Pending.

SB 8122  Authorizes the New York City Department of Finance to extend until June 15, 2020, the deadline for the filing of applications and renewal applications for certain real property tax abatement programs in the interest of the health and safety of the public due COVID-19.  Pending.

SB 8123  Permits any individual to receive free COVID-19 testing; provides that such individuals may be tested anonymously and no identifying information shall be provided to any non-medical state or federal agency. Pending.

SB 8124  Requires airlines and travel insurance companies to provide refunds for travel cancelled due to COVID-19. Pending.

SB 8125  Suspends all rent payments for certain residential tenants and small business commercial tenants if such tenant has lost employment or was forced to close their place of business and certain mortgage payments for landlords of such tenants in the state for ninety days following the effective date of this act in response to the outbreak of COVID-19. Pending.

SB 8126  Amends the Retirement & Social Security Law; relates to the retiree earnings cap for health care officials and workers during a declared public health related state of emergency declared by the governor.  Specifically, the amendment would allow State and Local Governments to hire retired public health officials and workers provided that these workers continue to be employed for the purposes of fighting the COVID-19 virus.  Pending.

SB 8139  An act to suspend rent payments for certain tenants in response to the outbreak of coronavirus; and to amend the state finance law, in relation to establishing the COVID-19 rental assistance fund.  Specifically, the act would; (1) suspend rent payments for tenants who have lost earned income or had their businesses shut down due to COVID-19 and instead requires payment at 30% of their actual income during the emergency; (2) provides for aid, administered by Homes and Community Renewal, to property owners that receive less rental income due to this act; (3) prohibits the filing of new petitions to commence eviction proceedings for 30 days after the end of the COVID-19 state of emergency.  Prevents landlords to use late or reduced rent payments as the basis of a summary holdover proceeding for the chronic nonpayment of rent; and (4) establishes a COVID-19 Rental Assistance Fund to provide aid to property owners using unrestricted emergency federal aid and any other funds available from the state.  Pending.

SB 8140  The bill proposes to amend the public housing law by providing for a COVID-19 emergency rental assistance program.  To bill would provide emergency rental assistance to tenants suffering a substantial loss of income due to the outbreak of COVID-19.  Pending. 

AB 10226  This bill is intended to hold harmless businesses who currently hold business interruption insurance, for losses sustained as a result of the current COVID-19 health emergency, but for which no such coverage is currently offered. 

Section 1 of the Bill which I think is pertinent for our purposes reads as follows: “provides a mechanism by which certain businesses that suffer losses due to interruption as a result of the COVID-2019 pandemic may recover those losses from their insurer if they had a policy of business interruption insurance in force on March 7, 2020, the date on which the Governor declared a Public Health Emergency and State of Emergency in Executive Order 202. The bill would apply to businesses covered by such a policy with less than 100 eligible employees in the State of New York. “Eligible employee” is defined as a full-time employee who works a normal work week of 25 or more hours.   Pending. 


AB 10227 
 Amends the Election Law; relates to moving the date of the presidential primary to June 23, 2020; permits absentee voting in the event of an imminent, impending or urgent threat resulting from a disease outbreak; removes certain presidential candidates and their delegates from primary ballot where the candidate has suspended their campaigns or removed themselves from consideration for election to such office. Pending.