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Home My WebLink AboutEmail - Mail Packet - 4/7/2020 - Information From Kristin Stephens, Mayor Pro Tem, Re: Email From Stephanie Martinez-Ruckman, National League Of Cities, Re: 3.30 Update: Federal Action On Covid-19From: Kristin Stephens To: Darin Atteberry Subject: Fwd: 3.30 Update: Federal Action on Covid-19 Date: Tuesday, March 31, 2020 11:15:48 AM Attachments: image002.png ATT00001.htm NLC Correspondence Sec. Mnuchin re Coronavirus Relief Fund .pdf ATT00002.htm Hi Darin, Can you send this to Council? Thank you. Best wishes, Kristin Kristin Stephens City of Fort Collins Mayor Pro Tem, Councilmember, District 4 Pronouns: She, her, hers With limited exceptions, emails and any files transmitted with them are subject to public disclosure under the Colorado Open Records Act (CORA). To promote transparency, emails will be visible in an online archive, unless the sender puts #PRIVATE in the subject line of the email. However, the City of Fort Collins can’t guarantee that any email to or from Council will remain private under CORA. Begin forwarded message: From: Stephanie Martinez-Ruckman <Martinez-Ruckman@nlc.org> Date: March 31, 2020 at 11:12:43 AM MDT To: Lindsey Horvath <LHorvath@weho.org> Subject: 3.30 Update: Federal Action on Covid-19 Dear HD Committee, Forgive me in my tardiness for yesterday’s update. Please see attached and below. We are hard at work now preparing a list of needs for a #4 congressional bill and appreciate any thoughts you might have on programs and policies that would aid your communities. Best, Stephanie April 2, 2020 TO: Mayor & City Councilmembers FROM: Kristin Stephens, Mayor Pro Tem FYI /sek Stephanie Martinez-Ruckman LEGISLATIVE DIRECTOR, HUMAN DEVELOPMENT FEDERAL ADVOCACY NATIONAL LEAGUE OF CITIES From: Irma Esparza Diggs <diggs@nlc.org> Sent: Monday, March 30, 2020 9:41 PM To: Federal Advocacy <FA@nlc.org> Subject: FW: 3.30 Update: Federal Action on Covid-19 ___________ The CARES Act signed into law last week provides state and local governments $139 billion. It has been reported as $150 billon, but that does not account for funds earmarked for the District of Columbia and territories as well as tribal governments. We heard from the White House today that governments under 500,000 may receive the funding from their State, but that it will be at the State’s discretion. In response to this, NLC is sending attached letter that outlines that a limiting clause in the definition of use of funds should not restrict a State from disbursing funds to local governments. It is hard to imagine that the intent of the drafters was to carve out pockets of the United States to receive funds and not allow others to receive them. This virus knows no boundaries, so creating artificial boundaries on whether funds can be transferred from states to local governments is counterproductive. For example, cities under 500,000 that are coronavirus hotspots (New Rochelle, New York (80,000 population) and Kirkland, Washington (88,000 population)) that have been extremely disrupted and stressed and in obvious need of relief may get none from this fund if the State so chooses. Our letter also seeks clarification on a second issue that could free up more money to local governments. What if the common wisdom regarding “with a population that exceeds 500,000” is only meant to define the last term in a list of terms: “other unit of general government below the State level.” We believe we found Supreme Court authority that supports that position, Lockhart v. U.S. (2016). If Treasury accepts the reading the Court handed down in Lockhart, then counties, municipalities, towns, townships, villages, parishes, boroughs as well as a general government below the State level with a population that exceeds 500,000 would be eligible for funds allocated to units of local government. Finally, we sought clarity on what year census data the Treasury will use for allocations. Will they use the 2018 census data or the 2019 census data? Some cities on the cusp might be left out of receiving direct allocations if 2018 data is used. This coming Wednesday, April 1st the White House has scheduled a call with the heads of state and local organizations. It is our understanding that Department of Treasury will join call. As a result, I have sent the following questions in hopes that the Treasury official can answer the following questions directly. 1. Which Census data will Treasury use to determine threshold of 500,000 in population for local units of government? It would be helpful if the most recent Census data, 2019 be used provided it doesn’t hold up timeline. 2. Will states have option to spend money on subgrantees as they need and not be limited to only disburse funds to units of local governments of 500,000 and above? 3. The $454 billion “Economic Stabilization Fund” permits the Treasury Department to “purchase obligations or other interests in secondary markets or otherwise.” How will local governments interface and access funding from $450 this stabilization fund that Treasury will disburse? NLC is fighting hard on this matter and will seek a resolution by working with the Treasury Department. Few other key updates for you: NLC is currently working with USCM to send a survey to all municipalities to ascertain how much loss in revenues municipalities expect to have in the short and long term. We hope to have the survey in the field by tomorrow, with data back by the end of this week. We will be using the data to make the case for direct funding to all municipalities, regardless of population size. Thank you for reaching out to your Congressional delegations. We have heard from offices that they have begun to draft letters to Treasury, as well as seek language from us on what needs to be included in the 4th supplemental. We will share those letters with you as we receive them. Talk soon. Irma Irma Esparza Diggs SENIOR EXECUTIVE AND DIRECTOR FEDERAL ADVOCACY diggs@nlc.org (202) 626-3176 www.nlc.org March 30, 2020 Dear Secretary Mnuchin, On behalf of the National League of Cities (NLC) and the 19,000 cities, towns, and villages we represent, we write this letter to seek urgent clarification regarding the CARES Act (H.R. 748), which Congress passed last week. The provisions of Section 601 of the CARES Act, the Coronavirus Relief Find, provides for the distribution to funds to states and political subdivisions of states. One provision on which we want interpretive advice on is Section 601(d), which provides: “A State, Tribal government, and unit of local government shall use the funds provided under a payment made under this section to cover only those costs of the State, Tribal government, or unit of local government that— (1) are necessary expenditures incurred due to the public health emergency with respect to the Coronavirus Disease 2019 (COVID-19); It is possible that local governments with a population under 500,000 may not receive distributions under Section 601, and even if the local government does receive distributions, they may not be sufficient. Since the Coronavirus knows no boundaries and since a hotspot imposes dangers and costs not just to the area of the local government but also to the State, the public health emergency is not just the individual local government’s, but it is the State’s. Any distinction between a local Coronavirus public health emergency and a state’s Coronavirus public health emergency is entirely artificial. Accordingly, the language “only those costs of the State” should be interpreted to allow local costs to be funded by the State. A second issue we want interpretive advice on is Section 601(g)(2) of the CARES Act. An interpretative issue has risen with respect to Section 601(g)(2) of the CARES Act, the issue involving the definition of “local government.” The definition is as follows: 2 “LOCAL GOVERNMENT.—The term ‘unit of local government’ means a county, municipality, town, township, village, parish, borough, or other unit of general government below the State level with a population that exceeds 500,000.” The particular issue is whether the prepositional phrase “with a population that exceeds 500,000” modifies all the political subdivisions listed (a county, municipality, town, township, village, parish, borough, or other unit of general government below the State level) or modifies only the political subdivision immediately preceding it, “other unit of general government below the State level”. The issue is important because it determines which political subdivisions are entitled to receive direct funding under the Coronavirus Relief Fund in Section 601. If the language “with a population that exceeds 500,000” is applied to all of the listed entities, then: (i) No town, township, or village will directly receive distribution from the Coronavirus Relief Fund for the simple reason that, according to the Census Bureau, there are no towns, townships, or villages with a population in excess of 500,000. (ii) No city (which are municipalities) with a population of under 500,000 will receive a direct distribution from the Coronavirus Relief Fund and only the 36 cities that have populations above 500,000 will receive such distributions directly from Treasury. (iii) Cities under 500,000 that are coronavirus hotspots (New Rochelle, New York (80,000 population) and Kirkland, Washington (88,000 population)) that have been extremely disrupted and stressed and in obvious need of relief will get none unless it comes from the States. (iv) The New Jersey smaller cities and towns a mile across the Hudson River from Manhattan that have dangerous levels of infections as a result of the spread of coronavirus out of Manhattan will get no relief funds directly from the Treasury while New York City will. Could Congress actually have intended any of these results? The answer is no. In any case, we are able to firmly establish that the proper reading of the term local government is that the phrase “with a population that exceeds 500,000” applies only to the last political subdivision in the list, not to all of the political subdivisions in the list. Supreme Court Authority The authority for this conclusion is a 2016 U.S. Supreme Court case, Lockhart v. United States. Quoting from the majority’s opinion: “The question before us is whether the phrase “involving a minor or ward” modifies all items in the list of predicate crimes (“aggravated sexual abuse,” “sexual abuse,” and “abusive sexual conduct”) or only the one item that immediately precedes it (“abusive sexual conduct”). 3 The Court affirmed that the Second Circuit’s holding that the phrase “involving a minor or ward” in §2252(b)(2) modifies only “abusive sexual conduct.” Citing from the majority’s opinion, “When this Court has interpreted statutes that include a list of terms or phrases followed by a limiting clause, we have typically applied an interpretive strategy called the “rule of the last antecedent.” See Barnhart v. Thomas, 540 U. S. 20, 26 (2003). The rule provides that “a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows.” Ibid.;” “The rule reflects the basic intuition that when a modifier appears at the end of a list, it is easier to apply that modifier only to the item directly before it. That is particularly true where it takes more than a little mental energy to process the individual entries in the list, making it a heavy lift to carry the modifier across them all.” The Court said that it is possible to overcome the default rule—the rule of the last antecedent—if the internal logic of the statutory provision or the context of the statutory provision indicate that rule of the last antecedent should not apply. It is clear here that neither the internal logic nor the context suggests that the rule of the last antecedent should not apply. The Lockhart Case. In the Lockhart case, the question before the Court involved the following Federal criminal statute. “Whoever violates. . . [18 U. S. C. §2252(a)(4)] shall be . . . imprisoned not more than 10 years . . . but . . . if such person has a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, . . . such person shall be fined under this title and imprisoned for not less than 10 years nor more than 20 years.” The issue involved the words “prior conviction…under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.” The defendant had a prior conviction for sexual abuse involving an adult. He argued that the words “involving a minor applied to all three terms preceding it; that is, it applied to each of the terms “aggravated sexual abuse, sexual abuse, and sexual conduct.” If the defendant Lockhart was correct, he could be imprisoned for no more than 10 years. If Lockhart was incorrect, he could be imprisoned for 10 to 20 years. Note that the question the court was asked to decide was essentially the same as the issue involved here: does qualifying language apply to all of the items in the list preceding it or only to the last item. The Court held that the words “involving a minor” applied only to the last item in the list. As a result, his prior conviction of sexual abuse with an adult was sufficient to send Lockhart to prison for more than 10 years. 4 Overcoming the Rule of the Last Antecedent In its opinion in the Lockhart case, the Court went on to note that while the rule of last antecedent is the default rule, it is not absolute and can be overcome by contrary evidence, based on the internal logic of the provision or the overall statutory scheme. The court said: “Of course, as with any canon of statutory interpretation, the rule of the last antecedent is not an absolute and can assuredly be overcome by other indicia of meaning.”…“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” The Court said in deciding whether the rule of the last antecedent can be overridden “our inquiry into…context begins with the internal logic of that provision.” An examination of the internal logic of the definition of local government clearly indicates that the rule of the last antecedent should be applied. If it were not, certain terms in the definition of local government would be rendered meaningless and a cannon of statutory construction is that all of the words should be given meaning. The definition of local government includes towns, townships, and villages. But those terms would be rendered meaningless if the phrase “with a population exceeding 500,000” were deemed to modify those terms because according to the Census Bureau, there are no towns, townships or villages with a population exceeding 500,000. However, the terms “towns, townships and villages” will have meaning if they are not modified by the phrase “with a population in excess of 500,000.” A third issue we want interpretive advice on is Section 601(c)(6). The law says: DATA.—For purposes of this subsection, the population of States and units of local governments shall be determined based on the most recent year for which data are available from the Bureau of the Census. We seek clarification whether the Secretary shall use data from 2018 or 2019. We are ready to assist your efforts in any capacity, but especially as a means for establishing communications and coordination between federal authorities and local leaders. If NLC can be of further help to you in this crisis, please contact Irma Esparza Diggs, NLC Senior Executive and Director of Federal Advocacy, at 202-626-3176 or diggs@nlc.org. Sincerely, Clarence E. Anthony Executive Director and CEO National League of Cities