Lessons learned from COVID-19 and how we can prepare county government for the future

By Lindsey Bailey French, AAC Legal Counsel

We have been living through uncertain and unprecedented times recently amid the outbreak of COVID-19, widely known as the “coronavirus.” Like the rest of the country and much of the world, county government has not been immune from the impact. As county and district officials scramble to find answers on how to balance the health of employees, county jail inmates, and the public with the need to continue to provide county government services, thinking outside of the box has become a necessary survival skill.

When it became obvious that county quorum courts would need to meet and adopt emergency ordinances to handle these unprecedented conditions on behalf of the county as an employer, one such “outside of the box” idea that continuously came up was for the quorum court to meet via conference call, after notifying the press and meeting other FOIA notice requirements. This would allow the quorum court to meet swiftly and safely while heeding the recommendations of safety officials to not hold public meetings of 10 people or more. Unfortunately, current state law does not allow for quorum courts to meet, much less pass an ordinance, without having an in-person meeting of a quorum of the court.

In 2020, this seems like a no-brainer. Of course in an officially declared nation or state-wide emergency quorum courts should be able to meet remotely via phone or other electronic means to conduct urgent business. However, current law, drafted long before our recent circumstances were contemplated, does not allow for remote meetings. Ark. Code Ann. §14-14-904 sets forth the procedures for how quorum courts are to meet. On the first meeting date in January after the justices are elected, or at another date in January that the county judge sets, the quorum court shall meet and “establish the date, time, and location of the meetings of the quorum court ... Thereafter, the justices shall assemble each calendar month at a regular time and place as established by ordinance…” Additionally, even in cases of special or emergency meetings, notice of the meeting “shall specify the subjects, date, time, and designated location of the special meeting,” with at least 24 hours’ notice provided in the case of an emergency.

During the recent state of emergency from the COVID-19 pandemic, the need to address this law has become apparent. Local governments need the flexibility in times of declared emergency to conduct business in the most efficient and safest way possible, specifically by meeting remotely using technological advances available that were unforeseen when the current laws were written. The AAC recognizes a need for revision of the law next year in the general session of the 93rd General Assembly to allow quorum courts to meet remotely by phone conference, or as other common technology would allow, in a way that still meets the notice and access requirements of a public meeting when the Governor has declared a state of emergency.

Another challenge several Arkansas counties faced in recent weeks was conducting elections, specifically primary runoff elections, during the COVID-19 outbreak. Ark. Code Ann. §7-7-203 sets the dates for the “general primary election,” more commonly known to the public as the “primary runoff election.” For presidential election years like this one, election day is set for the Tuesday four weeks after the preferential primary election with early voting being held the week prior. The law currently leaves no room for a postponement of this date during times of emergency, even though the general election is not held until the following November.

Other states have provisions in the law to allow for flexibility of runoff election dates during times of emergency. For example, in Louisiana, if the Governor has declared a state of emergency before or during a regularly scheduled or special election, the Secretary of State will then determine if the emergency impairs the state’s ability to hold an election. If so, the Secretary of State then forwards the necessary facts to the Governor and relevant joint legislative committee (like Arkansas’s joint State Agencies and Governmental Affairs Committee). If the Governor and majority of the committee concur that an emergency election plan is necessary, the Secretary of State develops an emergency plan, to be approved by the legislature (voting by certified mail if not in session), and implements the emergency plan in cooperation with the appropriate local government officials.

Local election officials and the public were justifiably uncomfortable about having to hold primary runoff elections during the COVID-19 outbreak, when we were all being told to stay home and practice social distancing to prevent spread of the virus. By Governor’s executive order, polling places were consolidated, and all eligible voters were allowed and encouraged to vote by absentee ballots, but more needs to be done going forward to give the state the ability to postpone elections under these circumstances. In the upcoming 2021 session, the AAC will explore proposing legislation so that in the event of a Gubernatorial-declared state of emergency, state officials would have the authority to postpone certain regularly scheduled or special elections for a limited time or implement other emergency plans as needed for the health and safety of the public as well as election officials.

The last few weeks have been daunting, unique, and quite literally unprecedented for almost everyone involved in local and state government. The ability of local elected officials to recognize issues, adapt, and react accordingly has been and will continue to be crucial to the uninterrupted operations of county government. The AAC will continue to provide guidance to elected officials to the best of its ability and looks forward to working with county and district elected officials in the coming months to discuss and propose ways to help local governments better operate under unique emergency circumstances in the (hopefully very distant) future.

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