On April 20, 2020, Governor Wolf signed Act 15 of 2020 (SB 841), providing various forms of relief for businesses and municipalities throughout the Commonwealth.
Along with creating a new apparatus for containing healthcare costs stemming from the COVID-19 health crisis, Act 15 adds Chapter 57 to Title 35 (Health and Public Safety) called “COVID-19 Disaster Emergency.”
The new Chapter includes five substantive sections: Property Tax Relief; Educational Tax Credit; School Contractors; Notarial Acts; and Local Government Meetings.
Property Tax Relief:
Act 15 gives cities, counties, borough, towns, townships, and incorporated towns the temporary authority to deal with property taxes during the COVID-19 Disaster Emergency. For taxes imposed on the assessed value of real property due by December 31, 2020, each of these taxing districts may:
- Collect tax at the prescribed discount rate, if any, no later than August 31, 2020
- Waive any fee or penalty otherwise associated with late payment of tax if paid in full by December 31, 2020
Any action for this relief must be done by a majority of the governing board. Additionally, the board must deliver a resolution to the taxing district’s tax collector of taxing district within 30 days of effective date of the Act.
Educational Tax Credit:
Act 15 also gives relief for tax years affected by the COVID-19 Disaster Emergency to businesses who have applied for tax credits under the Educational Tax Credit Program in 24 P.S. 2004-B. The Act extends the deadline for businesses to make a qualifying contribution to a Scholarship Organization, Pre-K Scholarship Organization, Opportunity Scholarship Organization or Educational Improvement Organization from within 60 days of the approval of its application to end of business firm’s tax year.
Business firms must provide proof of their contribution in the form of a written acknowledgement from the scholarship organization within 30 days of the contribution. Businesses that are currently fulfilling the second year of a two-year commitment may receive a tax credit up to 90% of the amount contributed in year two. Also, the Department of Education is prohibited from reducing credit in year one of the two-year agreement if the year two contribution is less than the year one contribution.
The Act also gives relief to school entities. A school district, intermediate unit, area career and technical school, charter school, cyber charter school and regional charter school may renegotiate a contract for contract service providers. The purpose of renegotiation must be to ensure that contracted personnel and fixed costs, including administrative costs and equipment, are maintained during the period of school closure.
During the closure, the contract service providers shall submit weekly documentation to the school entity that its complement levels remain at or above the level on March 13, 2020 in order to continue being paid.
Significant, albeit temporary, relief to many businesses comes in the form of Remote Online Notarization. On March 25th and April 2nd, the Department of State waived the in-person notarization requirement for residential and commercial real estate transactions, and for estate planning documents, respectively. In those instances, notaries were required to utilize communication technology and create an audio/visual recording of the act. Act 15 broadened this relief to notarial acts generally.
Under the Act, the PA Department of State shall authorize a notary public to conduct notarial acts remotely if the notary gives advance notice to Department, and the notary uses communication and identification proofing technology approved by the Department. If a notary wishes to use other technology, it may do so unless the Department specifically prohibits the technology for cause, or delays its use pending review.
A remotely located individual—that is, a person not in the physical presence of the notary—may comply with the personal appearance requirement for notarization by appearing before a notary public through audio/visual technology. The Act requires numerous safeguards to ensure the identity of the remotely located individual and the records being notarized. Additionally, a recording must be made of the notarial act, and it must be retained by the notary or a depository for 10 years after the notarial act.
For notarization of an individual outside the United States, the record being notarized must be one that is to be filed with, or relates to a matter before, a court, governmental entity, public official or other entity under United States jurisdiction, or involves property located a United States jurisdiction. Furthermore, the notarization must not be prohibited by the foreign jurisdiction.
The notarial certificate for acts made under this new section must state that the notarial act was performed by means of communication technology, which can be by short certificate stating that “this notarial act involved the use of communication technology.”
Additionally, a notary may certify that tangible copy of an electronic record is a true and correct copy of electronic record, and such records may be recorded with Register of Deeds.
The section of Act 15 allowing for remote online notarization expires 60 days after termination of expiration of COVID-19 Disaster Emergency.
Local Government Meetings:
The Emergency Management Services Code allows the Commonwealth and its political subdivisions—counties, cities, boroughs, townships, and incorporated towns—to declare and manage disaster emergencies. Act 15 explicitly permits an agency, department, authority, commission, board, council, governing body or other entity of a political subdivision included in a declaration of disaster to conduct hearings, meetings, proceedings or other business through the use of an authorized telecommunications device until the expiration of the COVID-19 Disaster Emergency.
As additional relief under Act 15, a quorum for any meeting occurring through remote means can also be established by remote participation. To the extent practicable, governmental bodies must give notice of each meeting and the method of communication technology on their website or in a generally circulated newspaper, or both.
Entities must, to the extent practicable, allow for public participation in any meeting, hearing, or other proceeding through an authorized telecommunications device or written comments. An authorized telecommunication device allows for, at a minimum, audio communication between individuals. Written comments may be sent via email or through regular mail.
Draft minutes of a meeting called under exigent circumstances, without public notice, to address any issue related to the Disaster Emergency declaration must be posted within 20 days after that meeting, or before the next regularly scheduled meeting, whichever is earlier.
The Act also includes certain requirements for discussion or action on land use and zoning matters. Entities may not discuss any application, plat, plan, submission, appeal, or curative amendment unrelated to Emergency Declaration without notice to public and interested parties at least five days prior to meeting. on internet, newspaper, or both.
Importantly, Act 15 also tolls deadlines for action required by law in consideration of application, plat, plan or other submission for approval, or curative amendment. The review, hearing, and decision dates on received or pending plans are suspended and tolled as of Emergency Declaration, or as of date received if during the Emergency, and will resume after 30 days.
While notice of tolling must be given to applicants, the failure to give notice does not affect the tolling itself. Applicants may request a meeting, hearing, or proceeding within 30 days of the Act, and the entity will have full discretion to proceed with the request. If the request is granted, each applicant and party receiving actual notice of proceeding is deemed to waive any challenge to proceedings under Open Meetings Law or other provisions regarding notice, conduct or participation in a meeting.
Through the passage of Act 15, many businesses and political subdivisions in Pennsylvania have been given much needed relief in how they can continue effective operations during the COVID-19 Emergency Declaration. Incorporating the changes brought on by the Act may bring its own challenges, especially since the relief is set to expire at or soon after the end of the Emergency Declaration.