Cooper sought eviction order approval after bypassing Council of State last year

RALEIGH — Faced with an expiring executive order related to restricting evictions, Gov. Roy Cooper sought Council of State concurrence last week.

The request from Cooper for concurrence came on the one-year anniversary of the General Assembly passing legislation urging the governor to confer with the Council of State on emergency actions. On June 29, 2020, the legislature passed Senate Bill 105, titled “Clarify Emergency Powers.” Cooper promptly vetoed the measure three days later.

As of June 30, Cooper has issued a total of 221 executive orders since taking office. Seventy-six, or almost 35%, of those orders are COVID-19 related.

The Council of State members voted not to extend Cooper’s moratorium by a party-line vote of six to three. The Council of State is made up of North Carolina’s 10 elected statewide executive offices, which includes the governor.

Democrats Attorney General Josh Stein, Secretary of State Elaine Marshall and State Auditor Beth Wood voted in favor of the extension. Republicans Lt. Gov. Mark Robinson, State Treasurer Dale Folwell, Commissioner of Labor Josh Dobson Commissioner of Agriculture Steve Troxler, Commissioner of Insurance Mike Causey, and State Superintendent of Public Instruction Catherine Truitt voted to end the order.

Following the Council of State vote, the governor issued a press release criticizing the vote, titled, “Republican Council of State Members Revoke State Evictions Protections Effective July 1.”

“It’s disappointing to see Council of State Members revoke eviction protections for people still struggling to stay in their homes,” said Cooper in the press release. “Many North Carolinians still need help and we will work to make sure landlords abide by the CDC evictions moratorium and that tenants can access rent and utility assistance from counties and the state HOPE program.”

Lauren Horsch, communications advisor to Senate Leader Phil Berger (R-Eden) said in a statement to North State Journal that “This is a step Gov. Cooper should have taken for all of his pandemic-related executive orders.”

“For more than a year Gov. Cooper has used loopholes to circumvent the Council of State to act unilaterally on the majority of his executive orders, improperly consolidating all power in a single person,” Horsch said. “Senate Republicans are committed to implementing checks on the Governor’s executive authority to prevent future abuses of the state’s Emergency Management Act.”

Demi Dowdy, spokeswoman for House Speaker Tim Moore, said in a statement to North State Journal that “It’s good news for North Carolina that the governor has finally agreed with the General Assembly that he should seek the concurrence of the Council of State. Government functions best when there are checks and balances, and the people of North Carolina deserve for their leaders to be held accountable.”

Cooper made a point of his executive order aligning with that of the CDC; however, his executive order appears duplicative given that both the Biden Administration and the CDC have extended their evictions moratorium for another month through July 31. In a press statement, the CDC said their nationwide extension is “intended to be the final extension of the moratorium.”

Backing the CDC’s extension, on June 29 the U.S. Supreme Court voted 5 to 4 to keep the CDC’s national moratorium in place through July 31. Justices Clarence Thomas, Samuel A. Alito Jr. Neil M. Gorsuch and Amy Coney Barrett voted against the extension. Both Chief Justice John Roberts and Trump-nominee Justice Brett Kavanaugh joined the progressive Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan in favor of the extension.

The CDC’s moratorium protections apply to renters who are unable to make rent payments because of lost income, have received a federal stimulus check in 2020 or 2021, or did not have to report income to the IRS in 2020. Also covered are renters earning less than $99,000 a year or $198,000 filing jointly.

There are also state and county-level relief programs for renters which are not reliant on an executive order, including the Housing Opportunities and Prevention of Eviction program (HOPE) established by Cooper in 2020.

North Carolina has had around $1.3 billion allotted for utility and housing assistance with $1 billion going to HOPE. The governor said in his June 29 press statement that between May 17 and June 28, HOPE has awarded another “$66 million to 19,000 households.” According to previous statements by Cooper, HOPE awarded “$132 million in assistance to landlords and utilities on behalf of more than 37,000 tenants.” Based on that data in Cooper’s statements, HOPE’s expenditures come in at just under 20% of its $1 billion allotment.

Council of State members, NC Realtors Association weigh in

Folwell had already asked earlier this month that the moratorium be allowed to expire. He said that he supported the first issuance, but he has not supported three extensions of the order.

“I have said for over four years that the Council of State lacked the governance, transparency and ability to challenge assumptions on important matters that impact the health, livelihood and education of North Carolinians,” Folwell told North State Journal. “I really don’t think the governor was interested in extending the moratorium but wanted the political cover to place blame elsewhere. He knew last week the votes were not there.”

Folwell also said, “In my opinion, this policy was preventing renters from getting shelter. The expiration puts us in alignment with the rest of the U.S. under the eviction moratorium order issued by the Centers for Disease Control and Prevention.”

“I chose not to concur with the governor and put an end to the eviction moratorium. This moratorium is hurting landlords and potential tenants,” Robinson told NSJ in a statement.

“Landlords are being forced to shoulder the burden from the loss of income. In addition, property owners are hesitant to rent out their properties and are not listing residences due to the possibility of tenants not paying,” said Robinson. “As a result, there are some who are looking to rent, but have been unable to do so because of the longevity of the moratorium.

Robinson continued, saying, “While this policy made sense during the intense parts of the pandemic, it is no longer necessary, and the state needs to remove itself from making one-size-fits-all mandates.”

North Carolina Association of Realtors also did not want the governor’s evictions moratorium order to be extended beyond June 30. In a statement the association said it was pleased the state moratorium would be allowed to expire and thanked the Council of State for their support.

“The NC REALTORS® is pleased to learn that the moratorium on evictions in North Carolina will expire as planned on June 30.  As we have noted, like many other industries, small business housing providers are struggling to recover from the pandemic and deserve to be included in the economic recovery at-hand,” the statement reads in part.

“We particularly appreciate the stance of the Council of State in supporting our hardworking small business housing providers,” reads the NC Realtor statement. “They will now be able to start rebuilding their financial wellbeing, which provides crucial stability to the rental sector of the housing economy.”

By A.P. Dillon