Billions in County Funding Excluded from “Sanctuary” Order Provision

An update from the National Association of Counties provides the details in a California court case and how it affects counties nationwide.

A federal district judge granted a national preliminary injunction against the Trump Administration’s January 25th Executive Order’s sanctuary penalties. In additional, statements made during oral argument have indicated that the sanctuary penalties would be limited to affecting only certain grant programs.

Screenshot 2017-04-26 16.17.45From the National Association of Counties:

. . . the January 25 Executive Order on Interior Enforcement, and specifically its “sanctuary jurisdictions” provision, was challenged in federal court shortly after its signing. Late yesterday, a federal district judge granted a national preliminary injunction against the order’s sanctuary penalties in a joint ruling addressing complaints from San Francisco and Santa Clara County, Calif.

The Department of Justice’s statements in oral argument indicated that the executive order applies only to the three federal grants that have some existing requirement of compliance with 8 U.S.C. 1373. Those are:

  1. Byrne JAG grants,
  2. SCAAP, and the
  3. COPS program.

According to NACo’s coverage, the court stated that,

“[DOJ] disavowed any right through the [executive order] for the government to affect any other part of the billions of dollars in federal funds the counties receive each year.”

NACo also predicts that the appeals in this case could mean that it continues to be litigated for years. As reported by NACo,

The Administration can appeal this order for a preliminary injunction, or wait for a ruling from this court on the merits of the case. In either scenario, an appeal to the court’s rulings would be heard by the Ninth Circuit, and if there are further appeals, by the Supreme Court. This morning, President Trump expressed his intention to appeal this case to the Supreme Court if necessary, although it was unclear whether such an appeal would relate to the preliminary injunction ruling or an upcoming ruling on the merits of the case.

For more information, read the court’s preliminary injunction.


Get Involved! Apply Now to Be a Part of NACo’s Presidential Committees

Committee leadership and participation are an integral part of the National Association of Counties’ (NACo) mission. Incoming President-elect Roy Charles Brooks encourages you to get involved. In preparation for his presidency, he and NACo are pleased to begin the appointments process. Applications are due June 2, 2017.

President-elect Roy Charles Brooks

These appointments are for:

  • Policy steering committee chairs and vice chairs and subcommittee chairs and vice chairs
  • Large Urban County Caucus (LUCC) and Rural Action Caucus (RAC) chairs, vice chairs and members
  • Standing committee chairs, vice chairs and members
  • Ad hoc committee, task force and advisory board chairs, vice chairs and members
  • At-large NACo board directors

Click here for more information about NACo committees.

To be considered for a presidential appointment to any of the above committees or as an at-large director for the NACo Board of Directors, you MUST complete the application online before June 2, 2017. Appointments will be announced after NACo’s Annual Conference in July.

IMPORTANT:  Steering committee membership is not a part of this application process.

State associations of counties are responsible for nominating policy steering committee members. The online nomination form for policy steering committee membership can be found here.

President’s Budget No Boon For Local Infrastructure

Despite much-touted plans for investment in infrastructure, President Trump’s proposed budget only depletes opportunities for Maryland counties to benefit from important transportation funding opportunities.

Transportation for America, an organization advocating for investment in “in smart, homegrown, locally-driven transportation solutions,” reports that the President’s proposal cuts funding for new transit lines, including the Purple Line. It also eliminates the popular Transportation Investment Generating Economic Recovery (TIGER) grant program, one of only a few programs which makes Federal transportation funds available directly to counties for specific infrastructure projects. It also terminates funding for long-distance passenger rail lines.

The President’s budget eliminates funding for building new transit lines – presumably including the Purple Line. Transportation for America reports:

This budget eliminates future funding for building new public transportation lines and service, threatening the ability of local communities of all sizes to satisfy the booming demand for well-connected locations served by transit. While the handful of projects with full federal funding grant agreements (FFGAs) already in hand would (theoretically) be allowed to proceed, all other future transit projects would be out of luck. The budget proposes to phase out future funding for what’s called the transit capital investment grants program — more informally referred to as New Starts, Small Starts and Core Capacity grants.

The Purple Line does not yet have its FFGA, placing the project’s projected $900 million in federal funds at grave risk. The FFGA was scheduled to be signed on August 4, 2016, but litigation delayed its execution.  According to the Administration’s budget proposal:

Future investments in new transit projects would be funded by the localities that use and benefit from these localized projects.

The budget also eliminates the TIGER program. The fiercely competitive TIGER program funds innovative projects, including multi-modal projects, which leverage partnerships between multiple jurisdictions and the private sector. The program has brought at least $40 million in federal infrastructure investment to Maryland, including $10 million each for:

  • bus rapid transit along 14 miles of US 29 in Montgomery,
  • multimodal road improvements through the MD 175 Fort Meade Multimodal Accessibility Project in Anne Arundel,
  • Port of Baltimore enhancements including capacity expansion and construction of a rail intermodal facility, and
  • most recently, the North Avenue Rising project, which improves five miles along North Avenue in Baltimore City with dedicated bus lanes, roadway repaving, transit signal priority installation, enhanced bus stops, sidewalk improvements, bike share stations, bike lanes, and a subway station and intersection improvements.


The Administration’s budget proposal also cuts funding to Amtrak, and “terminates Federal support for Amtrak’s long distance train services.”

About Transportation for America:

Transportation for America is an alliance of elected, business and civic leaders from communities across the country, united to ensure that states and the federal government step up to invest in smart, homegrown, locally-driven transportation solutions — because these are the investments that hold the key to our future economic prosperity.

Deadline Set for Administration’s Decision in Federal Overtime Lawsuit

A Federal Court of Appeals grants the Trump Administration until June 30th to determine whether to continue defending a lawsuit that challenges an Obama-era regulatory expansion.

A federal court of appeals has granted the U.S. Department of Labor (DOL) its third extension in defending a lawsuit challenging new Fair Labor Standards Act (FLSA) overtime regulations according to the HR Daily Advisor.

Commissioner Tipton of Mineral County, Nevada testifies in Congress on the new Department of Labor overtime rule.

The National Association of Counties has advocated against the new regulations, with county officials testifying that the costly changes could negatively affect the ability of county governments to provide key services.

As reported by the HR Daily Advisor,

A lower court temporarily enjoined the rule last year and the Obama administration appealed that order. Now, the Trump administration must decide whether to continue with that defense.

Citing lack of leadership—specifically, a secretary of labor—the DOL has now requested and received three delays, giving it until June 30 to make a decision.


As described by HR Daily Advisor,

The rule, which was scheduled to take effect December 1, 2016, would have required employers to pay overtime to employees earning less than $913 per week (which amounts to $47,476 annually). The change would have more than doubled the existing threshold.

States and business groups challenged the rule in court and a federal district court judge granted a preliminary injunction, temporarily halting the rules just days before their effective date.

For more information, see 3rd Delay: Trump’s DOL to Address Overtime Rule by June 30 from the HR Daily Advisor.


For prior coverage, see these posts on Conduit Street:

Supreme Court: Exonerated Defendants Deserve a Refund

The Supreme Court ruled 7-1 in the case of Nelson v. Colorado that individuals who have had wrongful convictions overturned are entitled to a refund of fees, court costs and restitution from the state.

As reported on Governing:

“They are entitled to be presumed innocent” once their convictions are thrown out, said Justice Ruth Bader Ginsburg, and the state “has zero claim” to their money.

The 7-1 decision orders the state of Colorado to refund several thousand dollars to two defendants, a woman and a man, who were convicted of sex crimes but had their convictions reversed. Shannon Nelson, who was charged with abusing her children, was acquitted in a retrial, and the prostitution-related charges against Louis Madden were dropped.

In both instances, the state insisted on keeping the restitution they had paid.

Colorado had adopted an Exoneration Act that allowed “an innocent person who was wrongly convicted” to file a civil suit to seek refunds, but only if they could prove they were innocent of the crime. Most states allowed exonerated people to file a motion with a trial judge seeking a refund.

Ginsburg said Colorado’s scheme violates the 14th Amendment’s protection for due process of law because it presumes the exonerated defendants are still guilty.

For more information:

Wrongfully Convicted Entitled to Refunds, Rules Supreme Court (Governing)

Supreme Court Voids Colorado’s ‘Presumption of Guilt’ (Washington Post)

Opinion Analysis: States Can’t Keep Money They Collect Pursuant to Subsequently Overturned Convictions (SCOTUS Blog)


States Pursue Medicaid Waivers and Expansions for Addiction Treatment

Four states including Maryland have received a federal waiver that allows them to use Medicaid dollars for addiction treatment facilities with more than 16 beds. While seven additional states are in the process of seeking the waiver, the federal government is encouraging more to apply as part of a push to expand access to residential addiction treatment to help deal with the nation’s opioid epidemic.

As reported on Stateline:

To boost the number of beds available for low-income residents, the federal government has granted California, Maryland, Massachusetts and New York a waiver of an obscure Medicaid rule that prohibits the use of federal dollars for addiction treatment provided in facilities with more than 16 beds. Seven other states — Arizona, Indiana, Illinois, Kentucky, Michigan, Utah and Virginia — are seeking similar permission.

In March, the Trump administration’s new Health and Human Services secretary, Tom Price, told governors that the agency would continue the Obama administration’s waiver policies for residential facilities with 16 or more beds.

The federal government is encouraging all states to seek a waiver of Medicaid’s residential treatment rule, but only if the care is offered as part of a comprehensive set of addiction services for low-income people.

In addition to offering inpatient treatment to patients who need it, state Medicaid addiction programs must include all available addiction medications, intensive outpatient therapy, recovery support services such as job training and housing, substance abuse prevention programs, case management and physical health services.

States also must prove that adding more residential treatment slots to the list of Medicaid treatment options will cost no more than continuing to prohibit it.

Medicaid expansion, plus the federal health law’s requirement that all insurance carriers reimburse for addiction services, along with the Mental Health Parity and Addiction Equity Act’s requirement that addiction treatment be paid for at the same level as medical and surgical services, together hold out the potential that billions of dollars for addiction treatment will be available in the years ahead.

Lifting the 16-bed limit will free even more federal money, making it possible for addiction treatment providers to expand their capacity, Ingoglia said. But, he said, it’s not likely to result in treatment on demand overnight.

California was the first state to receive a federal Medicaid waiver, in December 2015. More than two years later, California’s counties, which operate separate Medicaid programs, are still ironing out details on reimbursement rates and quality standards.

Maryland’s waiver program, approved in December, is slated to take effect July 1. In the meantime, the state will set licensing and staffing requirements, and develop reimbursement rates and billing rules.

For more information read the full article on Stateline.

Resurrection of Healthcare Reform, Three Questions About Sanctuaries

The National Association of Counties (NACo) held a conference call today on federal legislation and regulations that affect counties.

Screenshot 2017-04-04 15.46.59

NACo’s policy team began their federal policy update call by stating that, for NACo, review of federal policy is not seen as a partisan topic, but an issue of federalism and intergovernmental relations.


According to NACo’s policy team, the concern regarding many current federal proposals is a common underpinning of achieving federal budgetary savings through cuts to state and local governments.


Counties are a key part of the nation’s health system. Nationally, counties spend $84B a year on residents’ healthcare, counties spend $25B on premiums for their own employees, and counties own hospitals and other medical infrastructure, according to NACo.

Healthcare reform is still very much alive the NACo Policy Team reports. The President and leadership are working on efforts to revise the legislation that was withdrawn. What was put forth previously would have cut medicaid spending and other public health funding that states and local governments currently use to provide services. At the same time, the legislation would only have delayed, not repealed the Affordable Care Act’s Cadillac tax on counties and other entities according to NACo.

Given Congress’s schedule, NACo does not predict the next steps for healthcare reform to emerge until May 2017. For more information about the legislation that was proposed previously and its effect on county governments, see ACA repeal, replacement raises concerns for counties.

Tax Reform

Comprehensive tax reform has been a goal of Speaker Ryan’s for a while, as described by NACo’s tax policy lead. NACo cannot predict, however, whether this year will bring significant tax reform, or not.

There are two primary issues that NACo tracks in the area of tax reform:

  1. The tax exempt status of municipal bonds, and
  2. The state and local tax deduction

Municipal bonds have funded 75% of the nation’s infrastructure over the years, according to NACo. The concern is that the municipal bond interest exemption will be cut or capped through tax reform, threatening the utility of this infrastructure-building tool. For more information, see MACo’s prior coverage on municipal bonds.

The state and local deduction is worth $1.3T over ten years, according to NACo. But the issue is not just the loss of dollars to counties, but also the double-taxation of local residents. Maryland is not one of the handful of states that gains the most from this deduction, according to the Tax Foundation:

The deduction’s effect is for lower- and middle-income taxpayers to subsidize more generous spending in wealthier states like California, New York, and New Jersey, reducing the felt cost of higher taxes in those states.


Trump has stated his interested in an $1T increase in infrastructure, as recently as yesterday morning, according to NACo’s policy lead. NACo has a good relationship with the presidential advisor on infrastructure and NACo’s policy team is meeting with him in-person next week.

According to NACo, infrastructure needs are outstripping the ability to raise revenue nationwide. NACo advocates for the public sector to have a seat at the table as the executive branch explores possibilities for private sector involvement.

On May 16-17th NACo is hosting an infrastructure week fly-in. For more information, look for updates on the NACo website or contact Kevan Stone at NACo.

Screenshot 2017-04-05 09.22.52

Sanctuary Cities and Counties

NACo clarified that U.S. Immigration and Customs Enforcement (ICE) detainer requests are voluntary. If a county honors a detainer request without a court order or established probable cause, the county could be held liable.

Questions that remain:

  1. What is a sanctuary jurisdiction? There is no clear definition.
  2. What can the government do legal to encourage compliance? The question here is whether the federal government withhold grant funds.
  3. What does 8 U.S.C. 1373 require from county governments, if anything? This centers on reporting requirements.

NACo and partner organizations are hosting a webinar April 18, 1pm Eastern Standard Time on this issue. For more information, join the webinar Legal Issues Surrounding the Executive Order on Sanctuary Jurisdictions and see the NACo Analysis.


3,000 Times a Month, Marylanders SAVE With NACo Live Healthy Program

The NACo Live Healthy Program provides your county residents a tool to save on prescription drugs, medical supplies and services, and dental care.

The prescription drug discount card is completely free to the county, and free to your residents. Across 19 Maryland counties, every month more than 3,000 times that card gives residents the best discount available — helping many under-insured and uninsured residents with savings from 15% to 75%.

The additional services are available to residents for a very affordable fee:
Dental Discount Program: $6.95 month or $69 year for individuals. $8.95 month or $79 year for families
Medical Services: $6.95 month or $69 year for individuals. $8.95 month or $79 year for families

Learn more about NACo’s Live Healthy Program, an outstanding benefit to your county’s residents, and completely FREE to your county government!

Hear a Federal Legislative Update for Counties

The National Association of Counties represents the country’s 3,069 counties on Capitol Hill.

The National Association of Counties (NACo) will be hosting a conference call on Tuesday, April 4 at 3 p.m. EDT to discuss federal policy issues facing county governments.


To join the call:

Dial Number: 1-719-955-1371

Enter Passcode: 605299

With all the developments on Capitol Hill, the National Association of Counties (NACo) is hosting a national conference call tomorrow, Tuesday, April 4 at 3 p.m. EDT to discuss the most pressing federal policy issues facing county governments.

During the call, NACo will provide updates on issues including:

  • Health care legislation
  • Tax reform efforts
  • Infrastructure
  • President Trump’s FY 2018 budget request and the annual appropriations process


Maryland county government officials are welcome to join the call.

Update: the call contents have been archived, and are now available on the NAco website.

Volkswagen Settlement Sets Aside $75.7M Initial Allocation to Maryland

The National Association of State Energy Officials (NASEO) reports that $2.9 billion of the Volkswagen 2.0 liter and 3.0 emissions settlement will be dedicated to an Environmental Mitigation Trust to be used by the States and territories affected by Volkswagen emissions.

As described by NASEO, to mitigate environmental damages from violating the Clean Air Act, the settlement requires Volkswagen to invest $2.9 billion in an independently administered Trust, which will fund projects to reduce diesel emissions.

Screenshot 2017-03-29 15.33.28
Timing of the release of funds from the VW settlement to the States, from NASEO.

The initial allocation to Maryland from the Trust is $75.7 million based on the number of vehicles affected in Maryland.

Once the Environmental Mitigation Trust is actually established, states will have 60 days to submit certification forms to be approved as beneficiaries of the Trust.

In June, 2016, the U.S. Department of Justice issued a partial consent decree settling claims by the U.S. EPA and the Federal Trade Commission against German automaker, Volkswagen AG (VW). The civil complaint filed against Volkswagen claimed that the automaker installed software in its 2.0 liter diesel engine vehicles to disable emission controls under normal use and to turn on emission controls only when the vehicle was being tested. . . The testing revealed that average emissions in on-road testing exceeded federal NOx limits by between 9 and 38 times the U.S. limit depending on driving conditions, which is roughly equivalent to real-world emissions from a modern tractor-trailer truck.

Examples of potential uses of funds from the VW settlement include various local government projects to reduce emissions of fleet vehicles, including:

  • Transitioning trash truck fleets to use compressed natural gas,
  • Converting school buses to propane,
  • Switching airport ground support equipment from fossil fuel to electric power, and
  • Installing idle reduction technology for emergency management vehicles.

For more information on these examples, see NASEO’s toolkit.

If a state is designated a beneficiary of the Volkswagen settlement, the state has 90 days to submit a “beneficiary mitigation plan,” according to NASEO. The state must then submit mitigation plans for use of the funds. The plans should include the state’s overall goals for using the funds and proposed mitigation actions and how the actions will improve air quality.

Screenshot 2017-03-29 14.23.18
State’s can use this toolkit to apply to be a beneficiary of the Volkwagen Settlement, and receive funds to improve NOx emissions in their state.

Based information from NASEO, trust funds may be used for projects that repower and replace government fleet vehicles with new vehicles or engines that use more efficient fuels. From the toolkit,

In this instance, “repower” means “to replace an existing engine with a newer, cleaner engine or power source that is certified by U.S. EPA . . . to meet a more stringent set of engine emission standards.” The replaced vehicles must also be scrapped.

MACo is reaching out to Maryland’s energy and environmental agencies to determine their roles in the State’s application process and any opportunities for county governments to apply for use of the funds, if received. Contact Robin Clark at MACo with any questions.

In the meantime, see The National Association of State Energy Officials (NASEO) toolkit for more information.