March 08, 2021 Legislation Limiting and Modifying the Governor’s Emergency Powers
KEEPING YOU INFORMED…
On March 7, 2021, Governor Cuomo signed legislation immediately repealing and modifying some of the Governor’s emergency powers that had been expanded by legislation at the beginning of the COVID-19 pandemic. Among other things, the Governor may no longer issue new directives by executive order during a declared state disaster emergency. Any directive already in effect, though, will continue for an additional 30-day period. In addition, the legislation authorizes the Governor to further modify or extend (in 30-day increments) any existing directive if the purpose of the directive is to address a public health issue related to managing the COVID-19 pandemic.
This memorandum provides you with: (1) a brief background of the legislation; (2) the impact on COVID-19 related directives and suspensions already in effect; (3) the impact on municipalities’ executive orders; (4) a description of new legislative oversight of the Governor’s declaration of a disaster emergency; and (5) the practical effects of the legislation on you.
As the COVID-19 pandemic began to take hold in early 2020, the State Legislature expanded the Governor’s already substantial powers during declared states of emergency by temporarily amending New York Executive Law § 29-a. Prior to its amendment, § 29-a permitted the Governor to “temporarily suspend . . . any statute, local law, ordinance, or orders, rules or regulations . . . during a state disaster emergency” for up to 30 days, subject to extension. On March 3, 2020, the Legislature temporarily amended § 29-a to allow the Governor to also issue affirmative directives during a declared state disaster emergency. This amendment was to be effective from March 3, 2020 until April 30, 2021, after which Executive Law § 29-a would revert to its prior form.
Over the past year, Governor Cuomo has repeatedly exercised his new-found authority by issuing approximately 100 executive orders that included suspensions of law and numerous affirmative directives applicable to the public, businesses and local municipalities throughout the State. While these executive orders expired every 30 days, they have been repeatedly extended by subsequent executive orders.
The Legislature has now decided that the Governor is sufficiently authorized by his pre-existing emergency powers and the ability to further extend or modify existing directives to address the remainder of the pandemic-related emergency issues.
Impact on Existing COVID-19 Related Directives and Suspensions
Within 15 days of March 7, 2021, all then current directives and suspensions authorized pursuant to the executive orders addressing the COVID-19 pandemic (Executive Orders 202 and 205 of 2020) must be posted on the Governor’s office webpage in a searchable format and include information including, but not limited to, a summary of the suspended or modified provisions, the expiration date of the provisions, the entity responsible for enforcement of the provisions and, where applicable, the need for a directive to be extended or modified and the threat to public safety or health requiring the extension or modification. The website must be continuously updated with each new suspension or extended or modified directive.
The new law also establishes a mechanism for oversight by the State Legislature and, in some circumstances, by local municipalities. If the Governor seeks to extend or modify a currently existing directive then, five days prior to doing so, the Governor must provide notice of this intent to the relevant Assembly and Senate committee chairs, the Assembly Speaker and the Senate’s Temporary President. Likewise, if the directive affects specific municipalities, those municipalities’ executive leaders and legislatures must be provided with the same five-day notice. The notices must be accompanied by a certification, issued in the New York State Commissioner of Health’s sole discretion, stating that the directive will address the spread or reduction of COVID-19, facilitate vaccinations or require face coverings. In response, those required to receive notice may submit comments to the Governor, which may be received after the directive is extended or modified. These comments, however, will not impact the modification’s or extension’s implementation.
A directive may only be modified or extended once unless the Governor has responded to timely submitted comments. The Governor’s responses must be published on the webpage, which must be updated every 30 days with new responses. In addition, the State Legislature may terminate any extended or modified directives by passing a concurrent resolution that will not require the Governor’s signature.
Impact on Executive Orders of Municipalities
The legislation also prohibits the extension or modification of any directive preventing a municipality from adopting a local executive order within the municipality’s existing power, except where the local executive order conflicts with a State executive order.
Legislative Oversight of Governor’s Declaration of a Disaster Emergency
Finally, the legislation amends Executive Law§ 28, which provides the Governor with the authority to declare, on the Governor’s initiative, a disaster emergency. The Legislature may now at any time terminate a declared disaster emergency by passing a concurrent resolution.
Practically speaking, the Executive Orders by which we have all been operating due to the COVID-19 pandemic will likely remain in effect (and can even be modified) until the Governor determines they are no longer needed. As a result, you must remain diligent and keep informed about the pandemic-related rules. In that regard, we will continue to update you on significant changes as they occur.
If you have any questions regarding the effects of the significant changes to the Governor’s emergency powers, please contact Lindsay Crocker, Joshua Sprague or one of our other attorneys by calling (631) 694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
Attorney Advertising: Prior Results Do Not Guarantee A Similar Outcome.
© Lamb & Barnosky, LLP 2021