Local governments’ emergency power grabs
Local governments all over the state are adopting emergency measures to combat the COVID-19 outbreak – but not all of them are making their emergency declarations and ordinances easily accessible.
State law allows local governments to pass emergency ordinances in one meeting without giving the public any notice or a chance to read them first, and a number of local governments’ emergency actions are either incompletely published, difficult to find – or not published at all, leaving citizens in the dark on what their local officials actually enacted.
Frequently, the emergency declarations and ordinances contain sweeping, extensive measures that were written to apply to any emergency situation, are often not defined, and are not tailored to stopping the spread of the virus. In addition they often present potential threats to civil rights and expand the power of local officials, in some cases to an almost unlimited degree.
Moreover, the declarations often fail to mention the additional emergency powers that are triggered during emergencies, which can only be seen by searching through the local code.
The best approach is for citizens to contact their local officials – city and county – directly to insist that orders and ordinances all be posted in their entirety, and that officials answer and explain what these powers mean.
Every city and county differs in what they allow during a state of emergency, but here’s a sampling of the powers from an analysis of several cities and counties all over the state.
- Stay-at-home orders – Local laws often allow the freedom of movement and assembly – such as protests – to be curtailed during emergencies, with zero criteria for when this would be appropriate, and no requirements that it actually address the situation at hand. For instance, the City of Columbia’s stay-at-home order, passed in response to the pandemic, requires everyone to stay home – unless they are working at or doing business with “essential service” businesses. Yet, some of these “essential businesses” include:
- Airports, buses and railways
- Telecommunications and data centers
- Vehicle sales and rental companies
- The South Carolina Ports Authority
- Grocery stores, big box stories or wholesale clubs that have grocery/pharmacy services
- Convenience stores
- Hardware and building supply stores
- Dry cleaning businesses
- Homeless shelters and food banks
- Residential and commercial real estate
Needless to say, there are plenty of opportunities for virus contagion in these places – more so, in fact, than in many of the small businesses that are forced to close by this order.
- Enacting curfews – One of the most common emergency powers is the across-the-board ability to impose a curfew, regardless of the type of emergency. Local ordinances typically describe situations in which a curfew could be imposed in broad terms, with no detailed criteria for their use and protections against overreach and abuse. For instance, the City of Columbia – which has imposed a curfew in response to the pandemic – authorizes curfews to protect lives, safety and property when a state of emergency puts those things at risk, leaving the practical application of a curfew entirely at the discretion of local officials. It is unclear how limiting nighttime activity would stop the spread of a virus, but the law does not require the curfew to actually achieve that goal or anything else as a condition of imposition.
The Columbia law also automatically bans the sale of the following items during the hours of curfew:
- Guns and ammo – It’s unlawful to buy, sell, give away, transfer or dispose of firearms, ammunition, dangerous weapons or explosives during the curfew hours – or even to possess any of these things off one’s own premises.
- Alcohol – It’s unlawful to sell any kind of alcoholic beverage or to possess or consume one off one’s own premises.
- Gas – It’s unlawful to sell gas, any similar petroleum products, or other combustible or inflammable substances, unless the curfew specifically says otherwise.
This is despite the fact that gun stores are typically closed by then anyway, and under the terms of the curfew, citizens aren’t even supposed to be out after 11:00pm.
These bans apply automatically every time a curfew is imposed regardless of the reason.
Parts of this local law appear to conflict with state law, which prohibits local governments from regulating gun and ammunition possession, transfers, or transportation (among other things), yet numerous local governments contain similar provisions in their codes of laws.
- Banning outright the sale of alcohol and guns – Several counties’ laws include the ability to enact 24/7 bans on the sale or transportation of guns, alcohol, explosives and combustibles (not defined). But whereas in Aiken this emergency ban can only be enacted by county council, the mayor of Beaufort can prohibit stores from selling guns, ammo, alcohol and gas any time the governor (or the mayor) declares a state of emergency (although he can only do this two days at a time). In Horry County, it is automatically illegal to sell alcohol “during manmade or natural disasters or acts of aggression” (which are not defined) once a state of emergency has been declared. So, if the Horry county government considers the COVID-19 virus a “manmade or natural disaster,” all alcohol sales are currently illegal in Horry County.
- Suspending the enforcement of local laws when immediate action outside the law is “required” – During declared emergencies, the Myrtle Beach code of ordinances authorizes the city manager – an unelected official – to exercise this power at will, subject only to city council ratification as soon as “practical.” This power to suspend the enforcement of local law is broad and applicable across the board, regardless of the type of emergency.
- Suspending the local procurement code – A number of local codes of ordinances allow city officials to bypass normal procurement processes in emergency situations – for example, the City of Columbia’s ordinances lift the requirement that the city manager get prior city council approval for contracts of over $50,000 during a state of emergency declared by the mayor, by the governor or even the United States president. Those contracts would be subject to city council ratification, but only after the emergency is over.
Similarly, the Myrtle Beach city manager can (subject to city council ratification) contract for public works without having to advertise it for the legally required length, and he does not have to award the contract to the lowest responsible bidder – if “immediate action” is necessary for public health, safety and welfare.
- Force evacuations – The Aiken County Council has broad power to force evacuations under local law, and the only criteria is if an evacuation is “deemed necessary” to preserve life or for other emergency mitigation/response/recovery. While evacuation could be an appropriate response to a flood (or hurricane situation in coastal areas), it is unclear how it would apply in a pandemic – yet it is a power that the county council could exercise in response to the COVID-19 virus if they chose.
Similarly, several counties (Aiken, Pickens and Richland, for example) allow the local government to control the ingress/egress to and from emergency or disaster areas, the movement of people within the area, and the occupancy of premises. However, there is no criteria for what constitutes a disaster area or threatened area in the case of a pandemic.
- Forcing businesses to close – The City of Greenville’s code of ordinances gives the mayor broad powers to force some or all businesses to close, if in his opinion, their remaining open for business “might tend to further endanger the property, lives, safety or general welfare of the people within the city.” There are no parameters placed on this power and no criteria given on the type of emergency where this power could be used.
- Entering and evaluating (and possibly using) private property – Myrtle Beach appears to grant the city manager broad power to enter private property to evaluate sites “involved with emergency management functions,” and authorizes him to execute a “right of entry and/or agreement to use property” for emergency management purposes. It is very unclear what this language means and when and to what extent the city is entitled to enter and possibly appropriate private property for emergency use – leaving the door open to interpretation by city officials.
- Requisitioning private goods and services – Some city/county codes (such as Pickens County) allow the requisition of goods and services from private sources as an emergency power. There are no parameters placed on when private resources could be demanded in this way or what they could be used for, and while they do require compensation to be made, there is no guidance on how that would be calculated.
- Using county equipment and personnel on private property – Richland County’s code of ordinances allows county equipment to be used on private property or for private purposes in a public emergency. While some of the criteria for “public emergency” is specific and narrowly drawn, it also includes “other occurrences, natural or man-made, where the public health is threatened” and where immediate action is necessary to protect life, health, the environment, and prevent substantial property loss. It is unclear what type of public health situations this could apply to.
- Demolish property without notice – During a public emergency, the Myrtle Beach city manager can order any structure to be demolished and removed, if it poses “a clear and present danger to public health, safety and welfare, not merely in need of repair, unfitness to occupy or to inhabit, but in real danger of fire, collapse, spread of disease, vermin or contagion, or danger to surrounding structures or buildings.” There is no check or balance built into this power, making it entirely up to the city manager’s discretion and applicable in all types of emergencies.
- Reduce/suspend fees to encourage rebuilding in disaster areas – The emergency powers Myrtle Beach gives its city manager go beyond addressing the actual emergency situation. One example is the power to lower or suspend city permit and application fees “or other rate structures” in order to encourage the rebuilding of areas that were impacted by the disaster/emergency. It is unclear why a single unelected official should have immediate power to lower fees during the emergency (with council ratification after the fact), or why the city council could not do this in the course of normal business after the disaster.
These are examples of the emergency powers embedded in local laws all over the state. Citizens who wish to know exactly what their local officials are empowered to do and what those powers mean should contact their city and county officials directly and demand that they post all emergency ordinances, declarations and orders and fully explain all their emergency powers.