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EMERGENCY POWERS UNDER NEW YORK LAW: OPTIONS FOR THE GOVERNOR & LOCAL GOVERNMENT DURING THE PANDEMIC John Michael Grant, Esq.1 ABSTRACT The coronavirus pandemic is an unprecedented threat to New Yorkers. While New York has taken action to address the crisis, there is no legal or financial obstacle to taking unprecedented steps to address both the spread of the disease and the accompanying economic crisis. Governor Cuomo should rely upon New York Executive Law §29 to directly provide vulnerable communities with everything from coronavirus testing kits, medical treatment, groceries, and other needed supplies. Governor Cuomo could also rely upon §29 to provide funds to local municipalities directly out of the State’s emergency fund that could then be distributed to residents in the form of direct cash assistance or paid sick leave reimbursement. The low cost of borrowing also means that providing such dramatic levels of assistance is eminently economically feasible. I. INTRODUCTION In March of 2020, the World Health Organization declared that the coronavirus has reached pandemic proportions. See Donald McNeil Coronavirus Has Become a Pandemic, W.H.O. Says NYTIMES.COM (March 11, 2020) available at https://nyti.ms/2Wcr8AE. Epidemiologists have estimated that the number of cases in the world doubles every six days. Id. New York faces a large cluster of cases, and has already declared a State of Emergency, (Gov. Andrew Cuomo, Exec. Order No. 202 Declaring a Disaster Emergency in the State of New York available at https://on.ny.gov/2U4uq6p) established containment zones, (N.Y. Creates ‘Containment Zone’ Limiting Large Gatherings in New Rochelle NYTIMES.COM (March 11, 2020) available at https://nyti.ms/38RzPDh) and has taken various steps to prevent the spread of the virus. Especially as New Yorkers face increased economic pressure (Coronavirus Fears Reverberate Across Global Economy NYTIMES.COM (February 28, 2020) available at https://nyti.ms/2IJF6lE), effectively halting the spread of the disease will likely require effective solutions to the accompanying economic crisis, so as to prevent individuals from breaking quarantines to go to work to earn needed cash for medical supplies or to pay bills. While some have remarked that authoritarian legal regimes are capable of providing a robust response to pandemics that democratic governments are not empowered to do (Eli Lake, China’s Response to the Coronavirus Is Not a Model for the U.S.COM (March 10, 2020) available at https://bloom.bg/38PTSll) a review of New York law suggests that the Governor, in tandem with local governments, has extremely broad powers to act during a pandemic. 1 John Michael Grant is licensed to practice law in the State of New York. Thus, there are few legal obstacles to the Governor exploring creative and unprecedented solutions to the health and economic crisis associated with the spread of the Coronavirus. II. THE GOVERNOR HAS EXTREMELY BROAD POWERS DURING A HEALTH CRISIS Once a declaration of a state emergency is made, the governor may “direct any and all state agencies” to address the disaster. See 96 N.Y. JUR. 2D STATE OF NEW YORK § 17 State disaster emergency powers. New York Executive Law § 29 provides broad powers: Upon the declaration of a state disaster emergency the governor may direct any and all agencies of the state government to provide assistance under the coordination of the disaster preparedness commission. Such state assistance may include: (1) utilizing, lending, or giving to political subdivisions, with or without compensation therefor, equipment, supplies, facilities, services of state personnel, and other resources, other than the extension of credit; (2) distributing medicine, medical supplies, food and other consumable supplies through any public or private agency authorized to distribute the same; (3) performing on public or private lands temporary emergency work essential for the protection of public health and safety, clearing debris and wreckage, making emergency repairs to and temporary replacements of public facilities of political subdivisions damaged or destroyed as a result of such disaster; and (4) making such other use of their facilities, equipment, supplies and personnel as may be necessary to assist in coping with the disaster or any emergency resulting therefrom. The Governor has extraordinary powers to issue “any directive” during a pandemic. Under New York Executive Law §29-a: The governor, by executive order, may issue any directive during a state disaster emergency declared in the following instances: fire, flood, earthquake, hurricane, tornado, high water, landslide, mudslide, wind, storm, wave action, volcanic activity, epidemic, disease outbreak, air contamination, terrorism, cyber event, blight, drought, infestation, explosion, radiological accident, nuclear, chemical, biological, or bacteriological release, water contamination, bridge failure or bridge collapse. Any such directive must be necessary to cope with the disaster and may provide for procedures reasonably necessary to enforce such directive. Subject to the state constitution, the Federal Constitution, and federal statutes and regulations, the governor, after seeking the disaster preparedness commission's advice, may also temporarily suspend specific provisions of any statute or regulation. See 96 N.Y. JUR. 2D STATE OF NEW YORK § 17.State disaster emergency powers. While such suspensions are subject to statutorily specified standards and limits, the legal limits would be easily overcome in a pandemic. Under New York Executive Law §29-a 2. Suspensions pursuant to subdivision one of this section shall be subject to the following standards and limits, which shall apply to any directive where specifically indicated: a. no suspension or directive shall be made for a period in excess of thirty days, provided, however, that upon reconsideration of all of the relevant facts and circumstances, the governor may extend the suspension for additional periods not to exceed thirty days each; b. no suspension or directive shall be made which is not in the interest of the health or welfare of the public and which is not reasonably necessary to aid the disaster effort; c. any such suspension order shall specify the statute, local law, ordinance, order, rule or regulation or part thereof to be suspended and the terms and conditions of the suspension; d. the order may provide for such suspension only under particular circumstances, and may provide for the alteration or modification of the requirements of such statute, local law, ordinance, order, rule or regulation suspended, and may include other terms and conditions; e. any such suspension order or directive shall provide for the minimum deviation from the requirements of the statute, local law, ordinance, order, rule or regulation suspended consistent with the goals of the disaster action deemed necessary; and f. when practicable, specialists shall be assigned to assist with the related emergency actions to avoid needless adverse effects resulting from such suspension. The law’s structure suggests that it provides broad emergency powers to the Governor, balanced by an equally broad check on the Governor in the legislature. See New York Executive Law §29-a(4) (“The legislature may terminate by concurrent resolution executive orders issued under this section at any time.”). Were the Governor to take emergency action to address the Coronavirus Crisis, it would not be the first time that emergency powers would be used in New York to address the flu. During the 2018 seasonal influenza epidemic, New York Governor Andrew Cuomo declared an emergency to ensure adequate distribution of influenza vaccine to children in the state, suspending certain health and education regulations to allow pharmacists to vaccinate children. See Gregory Sunshine, Kelly Thompson, Akshara Narayan Menon, Nicholas Anderson, Matthew Penn & Lisa M. Koonin, An Assessment of State Laws Providing Gubernatorial Authority to Remove Legal Barriers to Emergency Response HEALTH SECURITY VOL. 17, NO. 2 citing Gov. Andrew Cuomo. N.Y. Exec Or. 176. January 25, 2018) available at https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_176.pdf. Thus, the Governor has the power to, within reason, suspend existing laws or regulations that are obstacles to an effective response to the pandemic, and to issue affirmative directives to quarantine or vaccinate individuals, and most importantly to a robust response to protecting those most vulnerable during such a crisis: “giving to political subdivisions” and “distributing medicine, medical supplies, food and other consumable supplies” See Executive Law §29. III. LOCAL GOVERNMENTS HAVE BROAD POWER TO RESPOND TO PANDEMICS Local municipalities also have broad power during a disaster. See 1996 N.Y. OP. ATTY. GEN. 52 (N.Y.A.G.); 1996 WL 710799 (“Under Article 2-B, local governments are considered the “first line of defense in times of disaster…Article 2-B gives local chief executives the ability to exercise comprehensive emergency powers independent of State control.”) Executive Law §25 states: 1. Upon the threat or occurrence of a disaster, the chief executive of any political subdivision is hereby authorized and empowered to and shall 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. Local municipalities are also generally protected from liability for actions they take during a disaster. See Litchhult v. Reiss 183 A.D.2d 1067 (3rd Dept. 1992) (“the County correctly asserts that plaintiffs' complaints fail to state a cause of action against it. There is no disputing the principle that a county is generally immune from liability for acts involving the exercise of discretion which are “acts [which] involve the exercise of reasoned judgment which could typically produce different acceptable results”)(denying liability against a County for discretionary action during a Tornado) citing (Tango v. Tulevech, 61 N.Y.2d 34, 41, 471 N.Y.S.2d 73, 459 N.E.2d 182; see, e.g., Executive Law § 25[5] ). IV. LOCAL GOVERNMENTS & THE GOVERNOR WORKING TOGETHER COULD HAVE TREMENDOUS POWER TO UTILIZE CREATIVE SOLUTIONS TO FIGHT THE PANDEMIC One way that local governments and the Governor working together could have tremendous power to provide assistance during an epidemic is through direct transfers to local governments pursuant to directives by the Governor (See NY Exec. Law §29 (“Such state assistance may include: (1) utilizing, lending, or giving to political subdivisions, with or without compensation therefor…”). The local municipalities could then provide benefits to people that the Governor may not be able to directly provide himself under §29 (“the chief executive of any political subdivision is hereby authorized and empowered to and shall use any and all facilities, equipment, supplies, personnel and other resources of his political subdivision in such manner as may be necessary.”) Better still, such reimbursements to local governments could arguably come directly out of New York’s emergency fund. Unfortunately, the provision primarily addresses physical damage to local governmental buildings, and appears to be anticipating emergencies such as hurricanes, tornados, or terrorist attacks. However, while the statutory definitions of “infrastructure” and “public facilities” do not explicitly address hospitals, health centers, or the provision of medicines or vaccines, the definition of “public facilities” could arguably include buildings established to provide housing for quarantined individuals, clinics to provide vaccinations, or make-shift hospitals to provide treatment. The contingency fund could also be accessed to provide economic assistance to local municipalities to address the economic fallout from the crisis. Under §29-e(1): §1(a) “Infrastructure” shall mean and include publicly owned storm and sanitary sewers, water supply systems, drainage systems, transportation systems, roads and bridges. (b) “Municipality” shall mean any county, city, village, or town of the state. (c) “Public facilities” shall mean and include publicly owned buildings, including traditional government buildings, such as courthouses, firehouses, police stations, parks, recreational facilities, and correctional facilities. (d) “Fund” shall mean the state's contingency reserve fund established by law. (e) “The office of emergency management” shall mean the office within the division of homeland security and emergency services. §2. The governor may, upon a finding that a municipality in the state has suffered substantial damage by an unanticipated natural disaster which has resulted in significant economic distress within such municipality, issue a declaration of significant economic distress in accordance with the provisions herein. In determining whether such significant economic distress exists, the governor shall consider whether the following criteria have been met: (a) the municipality suffered a substantial loss of assessed value; (b) substantial damage has occurred to municipal buildings, facilities and infrastructure; (c) the cost incurred by the municipality for clean-up operations is significant; (d) businesses within the municipality have experienced significant economic loss due to the inability to conduct normal business due to the disaster; (e) a significant increase in unemployment claims filed by persons employed within the municipality has occurred; and (f) the county or the county within which the municipality is located has been declared eligible by the United States small business administration for physical disaster and economic injury disaster loans. In addition, the governor shall also consider the extent that other financial resources, including federal assistance and insurance, are available to assist the municipality to repair damage caused by the disaster. §3. (a) Upon the issuance of a declaration of significant economic distress due to unanticipated natural disaster by the governor, a municipality recognized by the governor as being affected by such disaster which occurred on or after December first, nineteen hundred ninety-two, may apply to the division of homeland security and emergency services on a form prescribed by such office, for reimbursement from the state's contingency reserve fund for reimbursement of extraordinary and unanticipated costs associated with the reconstruction or repair of public buildings, facilities or infrastructure. (b) Where the municipality applying for assistance authorized pursuant to this section is a city, and such application pertains to a county wholly contained within such city, such city may submit separate applications for such assistance for each such county. (c) Such municipality shall be granted the assistance provided pursuant to this section, within the amounts made available by appropriation from the fund, upon approval of such application… V. PROPOSAL The Coronavirus Crisis is an unprecedented challenge that requires unprecedented solutions. Quarantines on a state-wide basis may very well be necessary to control the spread of the disease. The obvious result of such quarantines will be economic devastation, and difficulty for all, especially the vulnerable, in getting sufficient food and medical care. Fortunately, New York Executive Law §29 provides the Governor with explicit authority to direct state agencies to directly provide “medicine, medical supplies, food and other consumable supplies”. Thus, there are no legal obstacles to the Governor unilaterally providing a potential coronavirus vaccine, coronavirus tests, groceries or even toilet paper, to vulnerable citizens throughout the state. The Governor has already reduced restrictions on State Agency procurement procedures for securing needed supplies. (Gov. Andrew Cuomo, Exec. Order No. 202 Declaring a Disaster Emergency in the State of New York available at https://on.ny.gov/2U4uq6p)(amending “Section 97-G of the State Finance Law, to the extent necessary to purchase food, supplies, services, and equipment or furnish or provide various centralized services, including but not limited to, building design and construction services to assist affected local governments, individuals, and other non-State entities in responding to and recovering from the disaster emergency; Section 359-a, Section 2879, and 2879-a of the Public Authorities Law to the extent necessary to purchase necessary goods and services without following the standard procurement processes”). The Governor could also suspend aspects of the landlord and tenant law to reduce individual’s fear of failing to make rent, and make them more willing to comply with quarantine orders. The Governor has already suspended aspects of the Vehicle and Traffic Law (Gov. Andrew Cuomo, Exec. Order No. 202 Declaring a Disaster Emergency in the State of New York available at https://on.ny.gov/2U4uq6p)(I hereby temporarily modify, for the period from the date of this Executive Order through April 6, 2020, the following laws: Section 24 of the Executive Law; Sections 104 and 346 of the Highway Law, Sections 1602, 1630, 1640, 1650, and 1660 of the Vehicle and Traffic Law; Section 14(16) of the Transportation Law; Sections 6-602 and 17-1706 of the Village Law; Section 20(32) of the General City Law; Section 91 of Second Class Cities Law; Section 19-107(ii) of the New York City Administrative Code; and Section 107.1 of Title 21 of the New York Codes, Rules and Regulations, to the extent necessary to provide the Governor with the authority to regulate traffic and the movement of vehicles on roads, highways, and streets.”). There have been Federal proposals to mandate paid sick leave and to reimburse employees who take leave related to the Coronavirus. See Ana Radelat, U.S. House approves coronavirus bill with DeLauro priority: paid sick leave CTMIRROR.ORG (March 14, 2020) available at http://bit.ly/33liW2k; See H.R.6201, Spons. N. Lowey, Families First Coronavirus Response Act (March 11, 2020)(“establish a federal emergency paid leave benefits program to provide payments to employees taking unpaid leave due to the coronavirus outbreak, expand unemployment benefits and provide grants to states for processing and paying claims, require employers to provide paid sick leave to employees”) available at http://bit.ly/2wWOAHD. There have also been more aggressive proposals, such as a universal basic income to provide assistance during the crisis. J. Edward Moreno, Lawmakers call for universal basic income amid coronavirus crisis THE HILL (March 13, 2020) available at http://bit.ly/2ILMTiN; See Proposed Resolution of Tulsi Gabbard 116th Cong. No. 75843516 (March 12, 2020) (“the Federal Government should create and 4 provide an emergency Universal Basic Payment of 5 $1,000 per month available to all Americans until 6 the Department of Health and Human Services declares that the COVID–19 outbreak no longer presents a public health emergency.”) available at http://bit.ly/3aWZyve. There is no convincing economic or financial reason to not consider more robust versions of these programs at the State level. New York could take advantage of record-low financing to provide funds to local governments at unprecedented levels. Greg Robb, Fed seen cutting interest rates to 0% soon in bid to help weather coronavirus storm MARKETWATCH.COM (March 12, 2020) available at https://on.mktw.net/2IMwxGz; John Detrixhe, US Treasury yields drop to the lowest level in 150 years QZ.com (March 4, 2020) (“It’s the lowest rate ever, according to records going back to 1871”) available at http://bit.ly/33ks5IP; See U.S. Dept. of the Treasury Daily Treasury Bill Rates Data available at http://bit.ly/2xEFrnn. New York Executive Law §29 explicitly prohibits the Governor from extending municipalities credit (“Such state assistance may include: (1) utilizing, lending, or giving to political subdivisions, with or without compensation therefor, equipment, supplies, facilities, services of state personnel, and other resources, other than the extension of credit”), and the definition of “consumable supplies” would appear to prohibit the Governor from directly providing cash assistance to citizens under §29 (“distributing medicine, medical supplies, food and other consumable supplies”). However, so long as “other resources” under §29 could be interpreted to include direct cash assistance, there is no legal reason that local municipalities could not establish emergency housing, emergency testing clinics, emergency universal basic income or paid leave programs for economically impacted citizens, and receive funds for those activities from the State pursuant to §29. There could be a question as to whether the local municipalities and the Governor could seek reimbursement out of the emergency fund for such programs under §29-e. While the definition of “public facilities” in §29-e may be too narrow to include a universal basic income program or paid leave program, so long as the municipalities need funds for “public facilities” and “infrastructure” they could receive reimbursement for expenditures related to those items from the emergency fund, and use the surplus funds to pay for the temporary basic income and paid leave programs. Ultimately, even if §29-e arguably presents a challenge to reimbursement, it is highly unlikely that any court would issue an injunction preventing use of the funds for such a purpose. Moreover, even if the funds could not come out of the emergency fund, the State could certainly borrow at historically low rates to cover any deficit created by the local municipalities’ need for such funds. VI. CONCLUSION Given that there may not be time to convene the legislature, it would be wise for the Governor, in concert with local governments, to take the bold and unprecedented step of relying upon the broad emergency power of New York Executive Law §29 to provide affected citizens with paid leave and direct cash assistance. Failure to do so would weaken the effectiveness of the needed quarantines, and could enhance the spread of the deadly disease.