Below is a discussion of some of the concerns municipal officials are faced with when dealing with a public health emergency such as the COVID-19, including information about local boards of health and the tools provided to them through statute to help address such emergencies. This in no way should be a substitute for the information provided by your licensed public health officer or State and Federal officials during times of an emergency.
As with any public health emergency, the most effective way of dealing with issues is to have strong collaboration amongst all levels of government. We strongly encourage you to review any document with your public health officer for more information.
1) Who is responsible for managing public health emergencies in municipalities?
Municipal governments, through the local boards of health, are granted broad authority to manage public health emergencies and are given an array of tools to curtail the spread of communicable disease.
By statute (N.J.S.A. 26:3-1), every municipality in New Jersey is required to provide a program of public health services meeting standards of performance as determined by the Commissioner of Health and Senior Services. These standards are defined by the Department in the Public health Practice Standards of Performance for Local Boards of Health in New Jersey (N.J.A.C. 8:52). A municipality may meet this requirement by:
- Maintaining a municipal health department;
- Contracting with the health department of another municipality;
- Participating in a regional health commission; or
- Contracting with, or agreeing to come under the jurisdiction of, a county health department.
Most of New Jersey’s municipalities participate in some sort of shared agreement to meet their statutory requirement of providing a local board of health. Very few municipalities have their own board of health. So, while New Jersey consists of 565 municipalities, there are far fewer local health departments.
It is through the local boards of health, whatever form they may be, that municipal officials will address public health emergencies such as communicable diseases and epidemics.
2) What tools are available to respond to a public health emergency?
N.J.S.A. 26:4-2 provides local boards of health with the power to take action, including:
- Declare what diseases are communicable.
- Declare when any communicable disease has become epidemic.
- Require the reporting of communicable diseases.
- Maintain and enforce proper and sufficient quarantine, whenever deemed necessary.
- Remove any person infected with a communicable disease to a suitable place, if in its judgement removal is necessary and can be accomplished without any undue risk to the person infected.
- Disinfect any premises when deemed necessary.
- Remove to a proper place to be designated by it all articles within its jurisdiction, which, in its opinion shall be infected with any matter likely to communicate disease and to destroy such articles, when in its opinion the safety of the public health requires it.
It must be noted that upon the Governor’s declaration of a public health emergency, these powers become restricted. Should the Governor declare a public health emergency, the State Department of Health oversees the uniform exercise of these powers in the State and local boards of health are subject to the Department’s exercise of authority.
3) Who enforces and maintains a quarantine?
As clearly provided for in N.J.S.A. 26:4-2, local boards of health have the authority to maintain and enforce quarantines and isolation if in their judgment such measures are necessary to prevent the spread of a communicable disease. Municipal Health Officers are also given broad authority in times of public health emergencies and are given specific authority to effectuate quarantines and isolation when communicable diseases are involved. The State Department of Health also has authority to issue a quarantine or isolation and can require the local board of health to monitor and enforce the Department’s order.
Information related to the authority of the Health Officer to quarantine and isolate those infected or suspected to be infected with a communicable disease can be found in N.J.A.C. 8:57-1.11. The administrative code also provides local boards of health with model rules for quarantine and isolation that many boards have either adopted or adopted a substantially similar version of.
4) When should a Local Board of Health disinfect premises?
The local board of health is also given authority under N.J.S.A. 26:4-2 to disinfect any premises when deemed necessary. This broad authority has yet to be tested and there are scarce examples of use of this authority, but the intent of the law is clear, boards of health are given broad authority to undertake necessary measures to prevent the spread of communicable diseases.
5) Can our municipality appropriate additional funds to our Local Board of Health to address this epidemic?
A municipality, when deemed necessary by their local board of health, may appropriate to the local board additional funds needed to address an epidemic. If the funds are not available a municipality may borrow the needed money. The statutory authority for this is laid out in N.J.S.A. 26:3-44 provides that:
Whenever an epidemic of any contagious or infectious disease exists or is threatened, or any special need arises for the protection of the public health, and in the judgment of the local board of health of any municipality the expenditure of a greater sum than that already appropriated to the local board for the current year is necessary, the local board shall so certify to the body having control of the finances of the municipality. Thereupon the body having control of the finances of such municipality may appropriate such sum as the local board may certify to be necessary. If the funds at the disposal of the governing body of the municipality are not sufficient for such purpose, it may borrow the sum on the credit of the municipality. In such event the governing body shall place an amount equal to the sum borrowed with interest in the next annual tax levy, and with the money so raised shall pay the debt incurred.
6) Should we cancel, postpone, or reschedule meetings?
During times of heightened threats of communicable diseases, municipal governing bodies may wish to cancel or reschedule meetings so as to avoid a situation where large numbers of the public are gathered together. Generally speaking, the municipal governing body has broad discretion when making a determination to cancel or reschedule their own meetings. In fact, it is not necessary that a public health crisis or threat of such exist for the governing body to cancel or reschedule a meeting. You may do so at any time for a variety of reasons.
It must be noted that there is no provision within the Open Public Meetings Act (OPMA), or elsewhere that would permit a governing body to exclude the public for public health reasons, from a meeting that is otherwise required to be open to the public. That is to say, you cannot exclude the public from a meeting that is required under OPMA to be public, even for public health reasons.
Anytime a meeting is canceled or rescheduled consideration of the impact such cancelation or rescheduling will have on deadlines and work progress must be considered. Additionally, the requirements of the OPMA must be considered for any meeting that is to be rescheduled.
If you decide not to cancel a meeting, it may be good practice for the governing body to issue a warning to those planning to attend the public meeting about the possibility and dangers of a communicable disease and asking that the public exercise appropriate caution. In conjunction, the ability of the public to attend a meeting during a public health emergency or threat thereof should also be considered when contemplating holding a scheduled meeting. For sake of public participation and transparency thought should be given to whether or not a public health emergency or threat of one will prevent the public from meaningful participation in public meetings.
Absent any urgency, it would advisable not to take action on any ordinance, although more ministerial tasks such as paying bills and other necessary business can be handled without facing public outcry for holding a meeting with such low public turnout. While there is no threshold requirement for canceling or postponing public meetings due to expected low turnout, it is good public policy to consider such things.
Further, it may be possible, if you have the capabilities, to have the governing body members attend the meeting remotely using some sort of technology and telecommunication. If this is an option there must be someone within the hearing room (likely your municipal clerk) to ensure that all governing body members can be appropriately heard and understood by members of the public in the hearing room and that members of the public in attendance have the opportunity to address questions to the body. While there is no statutory provision expressly allowing such remote attendance there does not appear to be legal restrictions to doing this, so long as the meeting can operate the same as if all members were physically in attendance.
7) Can we ask residents to cancel, postpone, or reschedule a large private gathering?
There is no such thing as a convenient time for a public health emergency. In fact, many times these emergencies occur at what seems like the most inconvenient time when events such as parades or other large gatherings have been planned well in advance. Unfortunately, it may be necessary that events such as these must be canceled or postponed due to the risk such large gatherings may pose in spreading a communicable disease. And, while local officials have clear authority over the decision to cancel or postpone their own events, such authority over events hosted by others is not so clear.
While there may not be express statutory authority granting New Jersey’s local governments the power to cancel private events during a public health emergency; municipalities do have broad authority to act under general police powers. General police powers give municipalities the capacity to regulate behavior and enforce order within their territory for the betterment of the health safety and general welfare of their inhabitants. While general police powers are broad this does not give municipalities carte blanche to cancel any event or prevent any event from taking place.
One measure that should be examined is the local permitting process that may be applicable to events such as parades or other mass gatherings. It is common for many municipal permitting ordinances to include language that would allow the denial or revocation of such a permit if it deemed necessary for the public welfare. A public health emergency such as the threat of the spread of communicable disease certainly could be grounds for revocation or denial of such a permit. Municipal ordinances should be review to ensure that explicit authority for revocation or denial of a permit is available.
8) Does the local board of health have the authority to close schools?
While local boards of health may declare any epidemic or cause of ill health to be so injurious or hazardous that any or all public or privates schools should close, they do not have authority to actually order the schools closed. As explained in N.J.S.A. 26:4-5 public schools can only be closed at the direction of the school board upon the recommendation of the board of health. The relationship and authority to close schools is further explained in N.J.S.A. 18A:40-12.
School boards are granted additional authority under N.J.S.A. 26:4-6 and N.J.S.A. 18A:40-6 et seq. to exclude individual students or faculty there is cause to believe that one of these individuals has been exposed to a communicable disease and poses a health risk if they were to remain in the school.
Contact: Frank Marshall, Esq., League Staff Attorney, FMarshall@njlm.org, 609-695-3481, x137.