Bend Business Roundup 4-17-20

Bend Business Roundup 4-17-20

Happy Friday,

Here’s some stuff you might like.

Business: In the space of a work week or whatever we call Monday through Friday now, Oregonians went from zero plans to re-open the economy to two plans to re-open the economy; or, rather, one “framework” and one set of “guidelines.” The former from Governor Kate Brown and the latter from President Donald Trump. I’ll focus on the framework because it’s quite a bit more important to Oregonians than the “guidelines,” for reasons with which I intend to mercilessly bore you in the following section. For those of you outside Oregon, some other states’ frameworks are similar to Oregon’s, so read on too.

I’d rather be in an Oregon with a framework for reopening than an Oregon without a framework. So, we’re in a better place today than we were on Monday. However, the framework, well, let’s just say it needs some work.

Governor Brown’s Framework for Reopening Oregon, isn’t itself a plan to reopen but mostly a plan to plan to reopen. In order to begin to reopen, Oregon must meet three mostly yet-to-be-determined-or-clarified benchmarks:

1. “[W]e need to slow the growth: We [sic] need to see fewer and fewer cases of COVID-19.” This is frustrating. Slowing the growth is different from seeing fewer cases of COVID-19, because we could simultaneously slow the growth of the disease while continuing to see more cases overall. I honestly don’t know which metric she means: slowing the rate of increase or reducing the overall number of cases. If it’s the former, we’ve already done that. This needs some clarification, in addition to the metrics (how many fewer?) she indicates her team is working on now.

2. “[W]e need adequate Personal Protective Equipment, like masks, gloves and gowns[.]” How many is adequate? She and the state epidemiologist don’t know. We need to know at least a range. The private sector has a huge incentive to help produce PPE to meet benchmarks, if it only had them.

3. “[W]e must establish robust* public health framework to support the reopening effort,” which comprises three main efforts

a. More testing. The Governor didn’t say how much more but the epidemiologist did, saying we needed to go from the 7 ,000-                             8,000 per week conducted now to 15,000 or so per week. This is the one definitive-ish benchmark in the framework. That’s good.
b. “[D]evelop a robust* system of contact tracing . . . OHA is developing a plan.”
c. “[A]n effective quarantine and isolation program for people who test positive.” What will an effective program look like? No idea.

It’s good to have a framework, but this framework is so general as to be of not much use, other than to serve as a statement that the Governor is at least thinking about reopening.  Some suggestions:

1. Clarify the “slowing the growth” vs. “fewer and fewer cases” apparent ambiguity.
2. Provide targets for each of the prerequisites, including how many fewer cases, how much PPE, how much more tracing than what is already being performed by counties and what an effective quarantine and isolation program looks like.
3. Provide maximum flexibility for counties, many of them rural, with few or no cases to reopen as soon as possible, subject to a demonstrated capacity to contain an outbreak should it occur.
4. Hold at least weekly press conferences to update on the progress of 1-3.

As the governor said a few times too many during her press conference, “this is hard.” But it’s also essential and must be done as quickly as possible. Many small businesses are receiving PPP checks, which will allow them to pay employees for two months. Assuming Congress gets its act together and provides more funding for more PPP applicants, there will be more. What PPP has done is bought a little time, but there will be another round of layoffs starting two months after checks hit if there is not significant progress toward safely reopening the economy.

Further, the shutdown is impacting lots of people who rely on businesses even if they don’t work for them or own them. My wife, Anna, had a hysterectomy just before non-emergency surgeries were banned. She’s had some complications (thankfully now under control) that required her to get an ultrasound and blood draw. Her doctor marked “emergency” on the order and yet St. Charles Bend and Redmond wouldn’t see her and other imaging clinics are closed. She ended up driving to St. Charles Prineville, which was willing to see her.

Lots of people are enduring far worse than that – my point is that businesses exist for a reason and the longer they’re closed down, the longer people are going without a lot of goods and services they need. All the more reason to approach the reopening with all the speed that safety allows.

*When someone says “robust” outside the context of food they are usually covering up for not knowing how much of something needs to be done but want you to know that it’s a lot, or at least an amount that could be plausibly construed as “a lot.” The word should be banished from non-culinary public discourse.

Law: When President Trump said that he has the “total authority” to “open up the states” he said one of the worst things a president has ever said. These were state orders that closed things down, and only the governor or legislature of a state can modify or rescind such an order. And Trump admitted as much with his guidelines, which are not binding and leave all material decisions to the governors. Even after a lot of federal overreach over the past, oh, 90 years, the states still hold the bulk of the authority to deal with stuff happening inside their borders; given the widely disparate impacts of Coronavirus between states, this is a really really good thing.

Furthermore, the president doesn’t hold “total authority” to do much of anything except execute the laws passed by Congress. And even then Congress can tell him to do something different in most cases. Perhaps the only thing the president has total authority over is pardons, which are not subject to any kind of review and is a power enshrined in the constitution.

Now, Trump’s actions ended up not matching his words – he is deferring to governors – but he shouldn’t say such blatantly untrue things about his role in our constitutional republic, least of all now.

Law 2: Architectural Digest interviewed me for a story about options for commercial tenants during the economic crisis. It’s a short and helpful read for tenants and landlords alike. The headline implies the story’s all about residential stuff but there’s a part of it about commercial.

Politics: A fact pattern for our political age:

1. President Trump initially indicates, correctly, that governors have the authority to deal with the Coronavirus within their borders, with the help and assistance of the federal government.

2. Governors, including Governor Brown, complain the federal government is not doing enough, probably with justification.

3. Trump says he wants to reopen by Easter.

4. Brown says she doesn’t know whether Trump could order Oregon to reopen, superseding her stay at home order, but she expects him to leave this decision in the hands of governors.

5. No word on reopening from Brown for a period of time.

6. This past Monday morning, Trump tweets that he has the authority to reopen state economies.

7. Monday afternoon, the governors of Washington, Oregon and California announce that no, actually, they were going to work together to reopen.

8. Tuesday morning, Brown schedules a press conference to announce the framework I described above.

9. Thursday evening, Trump announces federal guidelines for reopening the economy, which specifically leave decision-making authority to governors.

I think it’s very likely the timing of the western states’ and subsequently Governor Brown’s announcement was, uh, influenced by Trump’s factually incorrect tweets Monday morning. Which leads to an interesting thought exercise: did Trump, knowing that Democratic governors who had been reluctant to reopen are inclined to take positions opposite his own, tweet false information on Monday morning for the purpose of causing those governors to take action? Or, was he just wrong and got lucky as it were?

Et cetera:  As an unreconstructed nerd, I appreciate those rare occasions when nerds get to, as the kids say, “flex.” Perhaps the best nerd flex of all time occurred on Who Wants to be a Millionaire a long time ago. The video is a little over two minutes long, and you have to watch it ’til the end to hit pay dirt, but it’s worth it.

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Have a great weekend!

Jeff started EagerLaw PC to help Oregon entrepreneurs succeed in business. Jeff worked in Washington, D.C. for Oregon Congressman Greg Walden, served as Mayor of the City of Bend, and has been practicing law in Oregon for over a decade. Jeff believes strongly in entrepreneurship and enjoys making the legal side of business transparent and easy for his clients.

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