Published: May 14, 2020
Even with the lifting of Gov. Tim Walz’s stay-at-home order, the continuing restrictions on certain businesses — and the varying impacts on communities across the state — are placing many city officials under pressure to express formal support for businesses that don’t comply with the restrictions, most commonly in the form of a council resolution.
City resolutions and other affirmative actions taken by local governments in a pandemic are without precedent in modern times. The consequences of non-enforcement of COVID-19 emergency executive orders are unknown and untested.
Limit your city’s exposure
For these reasons, the League urges cities to exercise restraint against adoption of resolutions or other actions that may expose the city and its officials to civil and/or criminal liability. We also urge cities to consult with their own attorney before taking any official action. Interpretation of current law to particular circumstances and with respect to particular language in a resolution should be left to the city attorney, who is in the best position to weigh all factors.
Finally, we encourage cities to reach out to their state and federal elected officials and provide information and examples of the specific negative impacts happening in their communities now — and expected to happen in the future — due to COVID-19 rules, guidelines, and restrictions.
Here are some additional points city officials may want to evaluate and discuss with their legal counsel when considering formal resolutions and other actions:
- A city does not have authority to change a state law or be less restrictive than state law, unless the law specifically allows for it. Local units of government, including cities and their officers, have only those powers that are granted by the Legislature either expressly or by reasonable implication. Any action passed by a city council should be evaluated within this scope of authority principle.
- A city will want to consider all implications, including potential liability for damages and civil penalties, for decisions made regarding non-enforcement of executive orders. Since such actions are without precedent and thus legally untested, cities may be assuming potential liability for unknown and completely novel legal claims and other risks. In addition, whether these risks can be successfully tendered to the League of Minnesota Cities Insurance Trust (LMCIT) for claims coverage is also unknown. If there is no ability for LMCIT to provide coverage, the city could be left paying for litigation costs and damages out of its own pocket.
- Minnesota Attorney General Keith Ellison has communicated that he will enforce executive orders, if necessary, but the state has not provided any other specific insights on how it will respond if a local government makes an affirmative decision not to enforce the orders. Also, business owners and employees who act in violation of executive orders could still face criminal charges or administrative penalties (such as license revocation) if they open their businesses in violation of an executive order.
Alternative types of resolutions
There are many examples of cities passing alternative types of resolutions that reduce or eliminate the above risks. These actions explicitly acknowledge the city’s support for local businesses while strongly encouraging the governor to lift or further relax restrictions.
The League has copies of some of these resolutions and can provide them upon request. To make such a request, contact the LMC Research Department at firstname.lastname@example.org.