Legal Information & Sample Documents
** The information contained here is provided solely for a general information purpose. It should not be interpreted as legal advice and does not constitute an attorney client relationship. The posted documents are samples and League attorneys have not reviewed them for legal sufficiency. The League’s attorneys do not provide legal representation to individual municipalities or officials; we encourage our members to consult their municipal attorneys on questions of law.**
General Covid-19 FAQs
Does a municipality have authority to impose a local mask order?
Yes, municipalities may impose a local mask order pursuant to an emergency declaration under Wis. Stat. §§ 323.11 and 323.14(4)(a).
Wisconsin Stat. § 323.11 provides that a governing body may declare, by ordinance or resolution, an emergency existing within the body’s municipality "whenever conditions arise by reason of . . . . a disaster, or an imminent threat of a disaster, that impairs transportation, food or fuel supplies, medical care, fire, health or police protection, or other critical systems” of the municipality. Section 323.02(6) defines “disaster” as a “severe or prolonged, natural or human-caused, occurrence that threatens or negatively impacts life, health, property, infrastructure . . . . or critical systems . . . .”
When an emergency has been declared, Wis. Stat. § 323.14(4)(a) provides that governing bodies may order, by ordinance or resolution, “whatever is necessary and expedient for the health, safety, protection, and welfare of persons and property within the local unit of government in the emergency . . . .” Although §§ 313.11 and 323.14(4)(a) do not specifically mention communicable disease, they do establish a municipality’s authority to declare an emergency in the event of a disaster or threatened disaster. As a highly contagious communicable disease that can cause serious illness or death and has the capacity to overwhelm health care systems, COVID-19 seems to clearly meet the statutory definition of “disaster” under Wis. Stat. § 323.02(6).
Accordingly, if a municipal governing body finds that COVID-19 is a disaster that is currently impairing or threatening to impair the health of its community (among other things), it may declare an emergency and rely on Wis. Stat. § 323.14(4)(a) to order whatever action is necessary and expedient to protect the health, safety, and welfare of its residents. A mask order is one example of such action. However, the municipality must articulate why the order is necessary to protect health, safety, and welfare. According to the CDC, masks are an effective barrier that reduces the transmission risk of COVID-19 through respiratory droplets.
Although there is a potential argument that the provisions of Chapter 252 addressing communicable disease constrain municipal authority under Chapter 323 with respect to communicable disease, Chapter 323, on its face, provides municipalities with authority to establish local mask requirements if deemed necessary during a declared emergency.
The Legislature’s adoption of SJR3 on 2/4/21, terminating Governor Evers’ Executive Order #104, does not affect local government emergency powers under Chapter 323. (2/5/21)
On May 13, 2020, the Wisconsin Supreme Court struck down DHS’s Emergency Order 28, Safer at Home, as invalid and unenforceable. See Wisconsin Legislature vs. Andrea Palm, 2020 WI 42. For more information on the Court’s opinion click here.
The following FAQs address some of the questions member municipalities are asking:
In the absence of a county or local health department order, does a municipality have authority to impose restrictions similar to Safer at Home, such as prohibiting public gatherings of a certain size and imposing restrictions on businesses?
Yes, municipalities may impose such restrictions pursuant to an emergency declaration under Wis. Stat. § 323.11, but any regulations should be narrowly tailored to the particular circumstances of the local emergency.
Under Wis. Stat. § 323.14(4)(a), which governs local governments’ powers and duties during a declared emergency, local governments have the general authority to order, by ordinance or resolution, “whatever is necessary and expedient for the health, safety, protection, and welfare of persons and property within the local unit of government in the emergency,” including “the power to bar, restrict, or remove all unnecessary traffic, both vehicular and pedestrian, from the highways...” Although § 323.14(4)(a) doesn’t explicitly mention controlling communicable diseases – in contrast to Wis. Stat. § 252.03 which provides that local health departments may do whatever is reasonable and necessary to prevent and suppress disease, including forbidding public gatherings when deemed necessary to control outbreaks or epidemics – § 323.14(4)(a) is broadly written to grant local governments authority to enact measures to protect the public health and welfare in an emergency.
Any restrictions declared pursuant to a local emergency should be narrowly tailored to address the particular circumstances of the municipality’s emergency; those circumstances should be detailed in the emergency resolution or ordinance. Restrictions that may be justified in one municipality may not be justifiable in another. Additionally, a municipality should clearly articulate the rationale underlying the restrictions imposed to illustrate that the restrictions are based on facts rather than suppositions – e.g., capacity limits should be based on a defined formula derived to achieve compliance with the CDC’s social distancing recommendations in a given amount of square footage rather than setting a numerical capacity limit with no explanation for how it was reached. Municipalities should avoid imposing restrictions that appear arbitrarily defined. Moreover, some restrictions may impact individuals’ constitutional rights (e.g., right of assembly), so municipalities should strive to craft restrictions in a content-neutral manner and as narrowly as possible to address the emergency situation in their community.
The Wisconsin Supreme Court’s recent decision overturning DHS’s Safer at Home Order (see Wisconsin Legislature v. Andrea Palm) should not be read as precluding local governments from enacting similar restrictions; narrowly crafted municipal restrictions should withstand judicial scrutiny. First, the Court’s opinion was limited in scope and did not address local government authority. It only pertained to DHS’s authority under Wis. Stat. § 252.02 and largely found fault with an unelected official promulgating a rule without following the emergency rulemaking procedures outlined in Ch. 227 of the Wisconsin Statutes. Local governments, however, are not subject to those rulemaking procedures, and restrictions imposed under § 323.14(4)(a) are imposed by elected officials – e.g., elected members of governing bodies. Second, the Court was concerned about the ability to impose criminal liability for violations of DHS’s order. However, that should not be a concern here because Wisconsin municipalities cannot create crimes; therefore, they cannot impose either a fine or imprisonment as a sanction for violation of a municipal ordinance. State v. Thierfelder, 174 Wis. 2d 213, 222, 495 N.W.2d 669 (1993).
Finally, an interim opinion issued by Wisconsin Attorney General Josh Kaul on May 15, 2020 (“opinion”) supports the conclusion that the Supreme Court’s decision did not impact local authority to address the COVID-19 pandemic. The AG opinion concludes that the Supreme Court’s decision is limited in scope and does not constrain local health departments’ authority to issue similar orders under Wis. Stat. § 252.03. The opinion notes local government authority under Ch. 323 as an additional source of local powers but does not specifically address those powers.
In conclusion, it is the League’s opinion that municipalities’ broad emergency powers enable them to enact restrictions addressing the COVID-19 pandemic in the absence of local health department orders. 5/19/20
Following the Wisconsin Supreme Court’s decision invalidating DHS’s Safer at Home Order 28 can a municipality choose to keep municipal facilities such as playgrounds, parks, athletic fields, etc. closed?
Yes. The legislature has granted municipalities management and control over municipal property and power to act for the health, safety and welfare of the public. See Wis. Stat. §§ 61.34(1) and 62.11(5). In the absence of an express limitation on those powers, a municipality has authority to decide whether municipal property should be open or closed. 5/14/20
Now that the Supreme Court has overturned Emergency Order 28 Safer at Home, what is the status of Emergency Order 5 which prohibited gatherings of ten people or more?
With Safer at Home overturned, Emergency Order 5 has no effect. The language in Emergency Order 5 specified the order would remain in effect for the duration of the public health emergency declared in Governor Evers’ Executive Order #72, which expired on May 11, or until a superseding order was issued. Emergency Order 28 Safer at Home appears to be a superseding order; therefore, Emergency Order 5 presumably is no longer in effect. 5/14/20
Would a county health order control in a municipality without a local health department?
Yes. Wisconsin Stat. § 251.08 provides that the jurisdiction of a county health department applies throughout the county unless a municipality within the county has its own local health department. 5/14/20
Must a library close if there is a county or local health department order in place establishing restrictions similar to Safer at Home?
Yes, pursuant to Wis. Stat. § 251.08, the jurisdiction of the local health department extends to the entire area represented by the governing body of the county, city, village or town that established the local health department, except that the jurisdiction of a single or multiple county health department or of a city-county health department does not extend to cities, villages and towns that have local health departments. 5/14/20
In the absence of a county or local health department order, does the governing body have authority to close the library or does that authority fall to the library board?
In the absence of such an order, the statutes appear to give the library board the authority to determine whether the library should open or close. Wisconsin Stat. § 43.58(1) provides that the library board has “exclusive charge, control and custody of all lands, buildings, money or other property devised, bequeathed, given or granted to, or otherwise acquired or leased by, the municipality for library purposes.” 5/14/20
Open Meetings Law Policies & Advisories
Attorney General Office of Open Government Advisory: Coronavirus Disease 2019 (COVID-19) and Open Meetings March 16, 2020
Madison Ordinance Prohibit meetings in a declared emergency March 12, 2020
Madison Allowing members of the Common Council to appear at meetings telephonically in a declared emergency March 17, 2020
Sample Declarations/Proclamations of Emergency & Ratifications
Emergency Declarations - Specific Issues
Racine Installment Payment of Property Taxes Due March 31 March 20, 2020
Emergency Declarations - General
Green Bay Declaration of Emergency March 16, 2020
Madison/Dane County Order of Public Health Officer Imposing Countywide Moratorium on Mass Gatherings of 50 or More People March 15, 2020
Oshkosh Ordinance Declaring a State of Emergency March 12, 2020
Racine Emergency Declaration March 18, 2020
South Milwaukee Proclamation of Emergency March 13, 2020
South Milwaukee Proclamation of Existence of a Municipal Emergency March 13, 2020
Waunakee Declaration of Emergency March 16, 2020
Sample Public Health Orders
COVID-19 Order Restricting Food and Beverage Sales in the Cities and Villages of Milwaukee, Bayside, Brown Deer, Fox Point, Glendale, River Hills, Shorewood, Whitefish Bay, Cudahy, South Milwaukee, and St. Francis Version 1 Issued and Effective as of 2:01 a.m. on Tuesday, March 17, 2020
Sample Employee Policies
Madison To Employees: Guidance on City Services and Paid Leave March 16, 2020
Racine Employee Emergency Policy to Ensure Continuous Operation of City Services and Employee Safety March 18, 2020