The Public Health Emergency is Ending: Now What?
State Emergency Declarations
During the COVID-19 pandemic, states declared public health emergencies and provided emergency flexibilities that impacted the governance and operations of community action agencies (CAAs). Some states adopted flexibilities to apply for the duration of the federal PHE or national emergency declarations which then will expire on May 11, 2023, with those declarations. As a result, CAAs must understand and plan for a return to pre-pandemic practices in several areas. This section provides background on how states adopted flexibilities, an overview of common flexibilities that CAAs may have operated under since 2020, and considerations for CAAs moving forward.
Background on State Flexibility Adoption
States adopted flexibilities in several ways. Many state governors issued executive orders that established a COVID-19 public health emergency in their states (e.g., Florida, Executive Order Number 20-52). Some of these executive orders provided for various forms of governance or operational flexibility in a number of sectors for the duration of the state emergency declaration, or until a specified date. State legislatures also acted and adopted legislation to provide COVID-19-related flexibilities (e.g., Massachusetts, Section 16 of Chapter 53 of the Acts of 2020). In most cases, these legislative initiatives were temporary and included expiration dates. As pandemic conditions persisted, many state governors and legislatures extended expiration dates in response to ongoing challenges. State attorneys general also issued guidance (e.g., Kentucky, Attorney General Advisory, April 26, 2022) around temporary orders and legislation, including related to enforcement.
CAAs will need to determine the process their state followed to adopt flexibilities and check those authorities when considering the implications and timing of the end of state-level COVID-19 flexibilities.
Nonprofit Corporation Laws
Remote Board Meetings
During the pandemic, a number of states adopted flexibilities that allowed nonprofit board members to meet and participate in board meetings remotely, using different audio or video technology. Once this flexibility expires, CAAs that moved to a remote board meeting format must ensure that they comply with existing nonprofit corporation laws and their bylaws with respect to meeting virtually.
If a CAA’s state nonprofit corporation laws are silent on the allowability of remote board meetings, the CAA should ensure remote meeting practices do not conflict with state open meeting laws (see Open Meeting Laws below), if applicable, or the organization’s bylaws. Provided they do not, the CAA board may continue to meet remotely. If the state nonprofit corporation laws explicitly prohibit remote board meetings, CAAs should cease meeting remotely when the flexibility expires. If a CAA’s state nonprofit corporation laws allow remote board meetings, but require each board member to be visible and audible during a meeting, or require a quorum of the board to meet in-person at a physical location accessible to the public, the CAA should ensure that meeting practices and technology are adequate to comply with these requirements.
CAAs sometimes include restrictions on remote board meeting participation in their bylaws. While some boards amended bylaws during the pandemic, others may have relied on flexibilities offered by their states that allowed for remote board meetings even when an organization’s bylaws required in-person meetings. As state flexibilities end, CAAs with remote meeting restrictions in their bylaws should consider amendments that would allow for remote participation, either as normal practice, or in times of emergency, if allowable under state law.
Nonprofit corporation laws in some states prohibit board members from voting by proxy. Even where allowed, corporate bylaws may prohibit the practice and CAPLAW generally doesn’t recommend it, see May Tripartite Board Members Use Alternates or Proxies? During the pandemic, some states adopted flexibilities to allow nonprofit board members to vote by proxy, even when prohibited by an organization’s bylaws. As flexibilities in these states expire, nonprofit CAAs should review state nonprofit laws as well as their bylaws. If nonprofit corporation laws prohibit votes by proxy, boards must cease the practice. Where allowed by law but prohibited by a CAA’s bylaws, a CAA must discontinue voting by proxy, or amend its bylaws.
Board Member Term Extensions
Nonprofit corporation laws typically allow a nonprofit organization to specify the length of its board members’ terms in its bylaws. If the organization fails to do so, board members will serve for a default term length specified in the law, oftentimes set at one year. During the pandemic, some states allowed nonprofit CAA boards to extend the terms of board members whose terms were expiring. These flexibilities offered nonprofit CAAs the opportunity to bypass the term requirements of state nonprofit corporation laws as well as organizational bylaws. Once these flexibilities expire, board member terms will return to the number of years specified in organizational bylaws or in state law, and board members with terms that are expiring will need to be selected to an additional term (if allowed by term limits, when applicable, and according to board selection procedures) or be succeeded by a new member on the board.
For additional information on how to prepare for governance challenges during emergencies related to nonprofit corporation laws, see CAPLAW’s Weatherproofing CAA Bylaws.
Open Meeting Laws
Public CAAs and some nonprofit CAAs are subject to state open meeting laws. Open meeting laws often contain requirements about remote access to, and participation in, CAA board meetings, both for members of the public as well as board members. Many states relaxed open meeting requirements during the pandemic. Thus, once these flexibilities expire, CAAs subject to open meeting laws must ensure that members of the public have notice of and access to board meetings as required by those laws, and that adequate technology and remote capabilities are in place to comply with requirements if meetings are conducted remotely. For example, open meeting laws may require that all attendees, including members of the public and board members, be able to identify, see, and hear who is speaking at a board meeting. In addition, open meeting laws may require a quorum of board members by physically present at a meeting location.
For additional information on how to prepare for governance challenges during emergencies related to open meeting laws, see CAPLAW’s Weatherproofing CAA Bylaws.
Public Records Requests and Inspection
Public CAAs and some nonprofit CAAs are subject to state public records or freedom of information laws. Emergency flexibilities that provided CAAs with additional days to respond to open records requests, as well as allowed for limited in-person inspection of public records likely no longer apply once these flexibilities expire. As a result, CAAs must ensure that policies and procedures related to these requests reflect prior practices and comply with state public records requirements.
State Funding Sources
CAAs should review requirements related to state funding or pass-through funding administered by their states, as state administering agencies may have adopted various temporary flexibilities related to the administration, use, reporting, and monitoring of those awards beyond what federal authorities provided.
Past Flexibilities, Future Norms?
As the country moves away from federal and state declared emergencies, CAAs should stay informed of evolving trends and legal norms related to temporary flexibilities adopted during the pandemic. The successful implementation of pandemic practices have motivated some state authorities to reconsider requirements related to the governance and operations of organizations such as CAAs in the present and future. In this context, CAAs can offer key insights to the ongoing discussions and awareness by informing authorities of the potential benefits offered by implementing pandemic-related flexibilities on a more permanent basis.
This resource is part of the Community Services Block Grant (CSBG) Legal Training and Technical Assistance (T/TA) Center. It was created by Community Action Program Legal Services, Inc. (CAPLAW) in the performance of the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Community Services Cooperative Agreement – Award Number 90ET0482-03. Any opinion, findings, conclusions, or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the U.S. Department of Health and Human Services, Administration for Children and Families.