Legislative Continuity of Government

By Kae Warnock | Vol . 23, No. 45 / December 2015

NCSL NewsDid you know?

  • Most states have explicit constitutional or statutory authority to move the seat of government in an emergency.
  • In 15 states, only the governor may call the legislature into special session. In an emergency, however, constitutional or statutory provisions sometimes allow legislatures to convene without gubernatorial call.
  • Fires, floods, earthquakes, ice storms, power failures and illness may bring the legislative process to a standstill if a legislature isn’t prepared.

Is your legislature prepared for a disaster? If not, precious time may be lost and important decisions could be delayed that affect the safety and security of citizens. The events that may affect operations of a legislature are not limited to terrorist attacks or war. In fact, fires, floods, earthquakes, ice storms, power failures and illness are more likely to bring the legislative process to a standstill if a legislature isn’t prepared.

A continuity of government (COG) plan is designed to ensure that critical operations can continue to function. State COG plans often are a part of emergency management preparedness and are designed to protect the operation of the executive and judicial branches of government. Legislative COG plans, whether included in the state plan or developed independently, are designed to give a legislature the ability to communicate, convene and make decisions during a crisis.

State Action

To trigger implementation, COG provisions require a catastrophic event. The provisions may refer to terms such as “attack,” “war,” “disaster,” “emergency,” “conflagration,” “enemy caused disaster,” “common enemy,” “disease,” “contagious disease,” “epidemic disease,” “infectious distemper” or “pestilence.” The foundations for legislative continuity of government are constitutional or statutory provisions that:

  • Allow the seat of government to be moved
  • Suspend or modify legislative quorum requirements
  • Provide for emergency interim legislative succession

Emergency interim legislative succession acts exist in at least 20 states. These provisions usually require that successors be selected for elected officials and that the names be kept in a secure location that can be accessed in case of an emergency. These acts also may define the number of successors, successor qualifications and duration of the temporary terms of office.

Legislative continuity of government plans fall into three general categories.

1. The legislature is included in the state continuity of government plan.

  • The Nebraska state continuity plan includes the Legislature.
  • Georgia’s continuity of government plan identifies under which circumstances the seat of government may be moved and outlines the lines of succession and emergency powers of the governor and the legislature.
  • Oklahoma’s governor issued an executive order in 2009 to create the Governor’s Conti-nuity Policy Coordination Committee, which included designees appointed by the speaker of the House and the Senate president pro tempore.
  • In Executive Order 2013-06, former Arizona Governor Jan Brewer directed the state department of emergency and military affairs to consult with executive, legislative and judicial branches to create a COG plan.

2. The legislature has a separate continuity of government plan that covers all legislative functions.

  • This plan may be in legislative rule. Joint Rule 44 of the Colorado General Assembly provides guidance for the legislature during a declared disaster emergency.

3. The legislative chambers and agencies have separate plans.

These plans usually are not public information. Government continuity plans are designed to reduce disruption of legislative work by keeping members and staff informed, requiring backup copies of legislative records, and making provisions for the legislature to meet safely, with the required quorum, to make emergency decisions.

Communication. Communication among legislators and staff is a critical part of ensuring the legislature will be able to convene during an emergency. Many legislatures plan to communicate via text, email or telephone in case of an emergency. A few states are able to use “push” notifications to quickly send alerts to members and staff. While cellular and electronic communication are now the norm, legislatures may consider whether these technologies could be disrupted during an emergency and make plans for alternate communication, if needed.

Safeguarding vital legislative records. Many legislatures have offsite storage for backups of all critical data. These backups may be the only source for legislative records if the capitol is rendered unusable. Kentucky statutes require the Archives and Records Commission to establish a system for preserving essential state public records necessary for the continuity of governmental functions in the event of an emergency. West Virginia statutes require the chief technology officer to create technical standards to provide the necessary system reliability for continuity of government. The Nebraska Constitution directs selection, reproduction, preservation and dispersal of public records necessary to the continuity of governmental operations in the event of enemy attack or imminent threat.

Continuity of government committees. Several legislatures have created committees to address continuity of government issues. The Colorado Legislative Emergency Preparedness, Response and Recovery Committee was created by the General Assembly to develop a plan for the continuation of operations. Washington’s Continuity of Government Act defines terms, provides for moving the seat of government in an emergency, identifies what should happen if all the governor’s successors are unable to perform their duties, and outlines how the legislature will operate. A related section of the code provides for preservation of essential records.

Federal Action

At the federal level, lines of succession to the presidency were added to the U.S. Constitution by the 25th Amendment (Art. II, Sec. 1). A provision in the U.S. Code authorizes the president to remove any public offices from the seat of government in the case of a contagious or infectious disease (4 U.S.C. §73). U.S. government preparation for government continuity includes regular review and updates to the federal plans. The U.S. Senate reviewed the COG for Congress in March 2015.

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