Update Affecting School Districts Regarding New York Executive Order 202.13

March 31, 2020

On March 30, 2020, Governor Andrew Cuomo’s Executive Order 202.13 addressed the following issues affecting public school districts throughout the State: (1) the postponement of upcoming school board elections; (2) whether school districts are authorized to pay for child care services; and (3) whether certain construction projects must cease.

School District Budget Votes and Board Elections

Pursuant to Executive Order 202.13, all school district, public library and village elections have been postponed to June 1, 2020, at the earliest. A definitive date has not yet been set for these elections. We await further directives as to the timing, location or manner of voting for such elections. At this time, the Governor’s office has not yet issued guidance on, nor authorization for, any type of remote voting.

The specific language of Executive Order 202.13 states, “Any school board, library board or village election scheduled to take place in April or May of 2020 is hereby postponed until at least June 1, 2020, and subject to further directive as to the timing, location or manner of voting for such elections.”

Although the Executive Order mentions school board elections, but does not specifically mention school budget votes, we have received unofficial guidance from the Governor’s office that the Executive Order was intended to include school budget votes. Therefore, it is currently our understanding that both school board elections and school budget votes are postponed until June 1, 2020, at the earliest.

Furthermore, the specific language of Executive Order 202.13 states, “Circulation, filing and collection of any designating petitions, or independent nominating petitions for any office that would otherwise be circulated or filed pursuant to the Election Law, Education Law or any other consolidated law for any office commencing March 31, 2020 are hereby postponed."

Therefore, all signature gathering activities, including the filing of petitions, must be postponed. The exact date when such signature gathering activities may resume is currently unknown.

Child Care Services

Pursuant to Education Law Section 414, school districts are permitted to provide child care services to certain children, including under some circumstances, the children of school district employees. However, school districts were prohibited from bearing the cost of such child care. Executive Order 202.13 suspends subdivision (i) of Education Law Section 414 to the extent necessary to allow school districts to pay for the cost of such child care services through April 28, 2020.

The specific language of Executive Order 202.13 provides, “I hereby temporarily suspend or modify, for the period from the date of this Executive Order through April 28, 2020 the following… [s]ubdivision (i) of section 414 of the Education Law to the extent necessary to allow the school districts to pay for the cost of such child care services.”

Please note that the above-referenced language serves to “allow” school districts to pay for the cost of child care services, but it does not “require” school districts to pay for the cost of child care services.

Construction Projects

After Executive Order 202.6 was issued, there was a question as to whether school construction projects could continue during the pandemic. Executive Order 202.13 addressed that issue, authorizing the Empire State Development Corporation (ESDC) to make such determinations.

The specific language of Executive Order 202.13 provides, “Executive Order 202.6 is hereby modified to clarify that construction which was an essential service not subject to the in-person work restrictions is modified to provide only certain construction is considered exempt from the in-person restrictions as of March 28, 2020. Further, on and after March 27, 2020, Empire State Development Corporation is hereby authorized to determine which construction projects shall be essential and thereby exempt from the in-person workforce prohibition, contained in EO 202.6 and subsequent Executive Orders which further reduced the workforce requirements. All continuing construction projects shall utilize best practices to avoid transmission of COVID-19.” (Emphasis added.)

Through the ESDC’s written communication with the Associated General Contractors of New York State, the ESDC stated the following:

“Local governments, including municipalities and school districts, are allowed to continue construction projects at this time as government entities are exempt from the essential business restrictions. However, to the greatest extent possible, local governments should postpone any non-essential projects and only proceed with essential projects when they can implement appropriate social distancing and cleaning/disinfecting protocols. Essential projects are those that have a nexus to health and safety of the building occupants or to support the broader essential services that are required to fulfill the critical operations of government or the emergency response to the COVID-19 public health crisis.”

As of the date and time stamp of the issuance of this information memo, the above-referenced statement from the ESDC has not yet been posted on the ESDC webpage. Therefore, in the interim, school districts should cautiously proceed with construction projects that it deems to be “essential” based upon the above-mentioned criteria.

If you have any questions regarding this information memo, please contact Candace Gomez, Kristin Warner, any of the attorneys in Bond’s School Law Practice, or the attorney at the firm with whom you are regularly in contact.

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