When it comes to restrictions and new laws, the general answer from courts is that they are allowed if there is a public health justification.
This was a key message delivered from Kapil Longani, counsel to the mayor of New York City or the “chief problem solver” as he’s known to some, on the recent CLE webinar, “The COVID-19 Crisis and New York City’s Response: Legal Issues.”
“All of this is driven by the public health people,” said Longani. “No restriction has been imposed on the citizens of New City without an enormous amount of thoughtfulness and thorough research.”
He recalled that at the beginning of the pandemic, Mayor Bill de Blasio would ask him for legal thoughts on various matters and whether it would stand up in court.
“The response I always had was, ‘Look, if there is a public health justification for it, the answer is generally going to be yes,’” said Longani. “If you can justify to us why these restrictions are necessary and why they are not discriminatory, we are going to allow it. At the end of the day, we want to save lives.”
How the Counsel’s Office Works
“There isn’t a sensitive legal issue that comes before the mayor’s desk that doesn’t stop at my desk first,” said Longani.
This includes whether or not to join opioids lawsuits equal employment opportunity matters, enforcement matters relating to COVID-19, interpretation of any of the governor’s executive orders, and personnel matters. Longani said his staff, including speaker Bess Chiu, his chief of staff, wear two hats – legal counsel and counsel in a political environment.
“When we make our decisions, it’s not in a vacuum. It is in the context of this political bubble that we live in,” said Longani.
Deputy Counsel Kate Cocklin said: “We have mainly been governing by executive orders, so whether it is curfews, indoor or outdoor dining, gathering restrictions, those have all been done via executive order, which is a power that rests solely with the mayor. Things are a little bit different for us because the governor revoked our authority to independently issue these executive orders In March.”
Cocklin clarified that there are two types of executive orders – a typical order where the mayor directs an agency to take a specific action, such as creating the Office of Cyber Command, and an emergency executive order that allows the official to suspend local laws or rules. Prior to COVID-19, emergency executive orders were mostly used for snow emergencies. More than 60 emergency orders have been issued since March and approximately ten were issued before the pandemic, according to Cocklin. All of the executive orders since March require Gov. Andrew Cuomo’s approval. Longani works closely with the governor’s Counsel’s Office to approve the City’s executive orders.
Panelists agreed that the executive orders can be confusing.
“Often times, if we do not understand something the governor has put out, we are luckily in a spot where Kapil can reach out to his counterpart at the state and simply ask for clarification,” said Cocklin. “Then we really work hard to disseminate that information as quickly as possible in the best format to the public so that everyone is on the same page. We never want to put out anything that is counterintuitive to something the state has put out.”
They will spend hours poring over the orders to ensure a complete understanding.
“I take great pride in making sure that my boss is the most informed boss from a legal perspective,” said Longani.
Local emergency executive orders are only valid for five days and must be renewed every five days, said Langoni. The governor’s executive orders are valid for 30 days.
One Size Does Not Fit All
Recognizing that one size may not fit all in New York, the governor recently implemented a micro-cluster strategy where hotspots are restricted based on the severity of the virus within a specific area. There are three categories: Red Zone – individual cluster; Orange Zone- Warning Zone; and Yellow Zone- Precautionary Zone.
“I think the state should get some credit for this. I think the state realized quickly that New York City in particular had different issues than say Poughkeepsie or another area because of the density of our population,” said Longani.
For example, phase three permitted limited indoor dining for most of the state but wasn’t approved until phase three in New York City. Group fitness classes are currently not permitted in New York City.
New Territory, New Laws
“We are really in unchartered territory,” said moderator Liz Benjamin, managing director of Marathon Strategies. “We are really setting precedent. Isn’t that where we are? We are writing new law effectively at this time.”
“Yeah, we certainly are,” answered Longani. “Everything we do is novel and nuanced. There were things back in the (19)20s and 30s, there were flus and things we had to deal with, but for most of us who are alive right now, we haven’t dealt with a pandemic like this.
“We are in a country that values its freedoms more than any other country in the world,” continued Longani. “To say you can’t come out of your house or you can’t leave your house after 9 pm or we can allow x number of people inside a restaurant at any given time, those are all things where you are restricting people’s rights and their freedoms and you have to work through the legal justification for doing so.”
Longani acknowledged the rapid pace at which changes occur.
“It’s hard enough for us to keep up with it and this is our job,” he said.
He has been really pleased with “New Yorkers’ hunger and understanding of what the law is.”
What Will the New Normal Be?
Longani hopes that we do not go back to “the garden variety practice of law.”
“There is no one on my team who will ever go back to being ‘normal’ after this,” said Longani. “I think the mayor demanded a level of creativity that heretofore we did not see. This crisis necessitated people to think outside the box in a way that we hadn’t done so before.”
For example, when there was an expected shortage of personal protection equipment and ventilators in April, the mayor worked with the Economic Development Corporation to build ventilators.
“Sure enough, we built our own ventilators,” said Longani.
They scrutinized contracts and went through the procurement laws but ultimately made sure the ventilators were safe, according to Longani.
“Where there was red tape that we could move out of the way to get this done, we did so,” said Longani.
Cocklin cited the “huge success” of outdoor dining as another means of creatively reopening to keep restaurants in business.
Longani noted that the governor’s emergency powers expanded at the beginning of the pandemic.
“That’s not going to change,” said Longani. “He has extraordinary power. I don’t think you’re going to see those go away anytime soon, post-emergency.”