UNC School of Government on statewide and local “Stay-at-Home” orders

Gov. Roy Cooper’s statewide “stay-at-home” order goes into effect at 5 p.m. Monday and will last 30 days.

But how is the order different from similar orders already put in place by local government around the state?

The UNC School of Government has put together a breakdown of the important questions surrounding the order that is worth your time today.

The piece compares local “stay-at-home” orders with Executive Order 121 and explains the differences between what local governments have ordered and are authorized to order as contrasted with the state.

It also gets into the difference between “stay-at-home” and “shelter-in-place” orders, why they are sometimes used interchangeably and why that can be confusing.


From the explainer:

Which is more restrictive – A local “stay-at-home” declaration or EO121?

It depends.  If a county or city has already imposed (or is still considering imposing) a local “stay-at-home” declaration, its businesses, residents, and others who might be traveling within its jurisdiction are legally subject to both the local declaration and EO121.  Piecing together local restrictions with those of EO121 to determine which is more restrictive may be complicated and confusing.  For example, if a local “stay-at-home” declaration defines an essential business or essential worker more broadly than EO121, the more restrictive definitions in EO121 control.  Conversely, if the local “stay-at-home” declaration defines essential businesses more narrowly, the local declaration will control.  Even if a county or city has not imposed a full set of “stay-at-home” restrictions, other restrictions such as limited entry or curfews (see discussion above), neither of which are imposed under EO121, would still be in effect at the local level.

Is documentation of essential business or essential employee status required?

EO121 does not require documentation for proof of essential business or essential employee status.  However, if a local “stay-at-home” declaration does require documentation for compliance with its local restrictions, those documentation requirements would remain in effect for purposes of enforcing local restrictions.  EO121 directs businesses to contact the NC Department of Revenue (NCDOR) to apply for essential business status; NCDOR does not have the jurisdiction to take applications from businesses seeking essential business status as defined (or not defined) in a local declaration, nor can NCDOR interpret the meaning of these or similar terms in local declarations.  Thus, counties and cities with local “stay-at-home” declarations must continue to provide guidance on terms like essential business and essential employee for purposes of enforcing restrictions imposed under their own local declarations.

In other words, the Governor interprets and provides guidance on compliance with his Executive Orders; counties and cities interpret and provide guidance on compliance with their local declarations.

Should counties and cities keep local restrictions in place?

Whether a county or city should keep in place a local “stay-at-home” declaration (or for that matter, any other local restrictions or prohibitions) is a decision best left to that jurisdiction’s officials based on their judgment of what continues to be reasonably necessary to protect the health and safety of their communities.  Ultimately, such decisions would be acted upon by the county or city official authorized by ordinance to declare a state of emergency and impose restrictions or prohibitions under that declaration.  This author offers no opinion, nor should this blog be construed as doing so, on what those local decisions should be.  The Governor himself recognized in Section 4 of EO121 that “the impact of COVID-19 has been and will likely continue to be different in different parts of North Carolina,” and specifically preserved the authority of county and city officials to impose more restrictive measures than those of EO121 if they determine such measures are reasonably necessary to mitigate against the spread of COVID-19 and to the extent authorized under North Carolina law.

Nonetheless, should county or city officials determine the restrictions imposed under EO121 are sufficient to address the COVID-19 threat within their individual jurisdictions, they have the authority to rescind or modify their local restrictions in the same manner those local restrictions were imposed.  Doing so would in no way effect whether EO121 applies within their jurisdictions.  The Order is effective statewide regardless of any action taken – or not taken – by county and city officials.

Should county and city officials wish to reconsider their local restrictions in light of EO121, they could choose to modify their local declarations in such a way as to keep in place (or add) restrictions not already imposed under EO121 such as limited entry or curfews (see discussion above).  Again, modifying or rescinding local restrictions in no way effects the application of EO121 within that county or city.

How would a county or city modify or rescind its local emergency restrictions?

Local restrictions and prohibitions are modified and rescinded in the same manner they are imposed.  The county or city official authorized by ordinance to declare a state of emergency may take action to modify or rescind any restrictions or prohibitions previously imposed under that declaration (see this blog for more discussion of local declaration authorities).  If the ordinance does not delegate this authority to an individual official, such as the Board Chair or Mayor, such actions must be taken by the governing board itself (G.S. 166A-19.22(a)), which it can do only in a lawfully convened public meeting.  However, if the ordinance does delegate authority to an individual official, that official may act without consent of the governing board.  That official may choose to poll the board, but no action by the board itself is legally required.  Should a county or city governing board wish to amend its local ordinance to delegate this authority to its Board Chair or Mayor (assuming authority is not already delegated), the board may do so only in a lawfully convened public meeting.  There is no authority, even during a declared state of emergency, to amend a local ordinance by any other means.

Does a county or city need to take any action for EO121 to apply and be enforceable within its jurisdiction?

No.  As discussed above, the emergency authorities of the Governor under Chapter 166A are independent of those granted to counties and cities.  EO121 applies in every county and city statewide regardless of any actions (or absence of actions) taken by local officials.  There is no need for counties and cities to amend their local emergency ordinances, declare a local state of emergency, or modify an existing local state of emergency declaration for EO121 to be in effect and enforceable within their local jurisdictions.

Read the full breakdown here.

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