- May 22, 2020Read more
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BBQs of Death:
I wrote last week that Oregon residents and businesses should be cautious throughout reopening because (a) you don’t want to get people sick, and (b) some folks will blow any bad news out of proportion in an attempt to shut us back down. A week later, I have a multiple choice question for you:
“[H]ealth officials are braced for potentially deadly barbecues.”
Comes from (a) an on-screen TV reporter setting the stage in the new blockbuster horror movie for the Coronavirus era, “Phase I: The Reopening” or (b) an Oregon Public Broadcasting story about an increase in the number of cases in Deschutes County since its economy and society were allowed to partially reopen a week ag0?
That doozy of a sentence comes from OPB (though I wonder who would play Dr. Anthony Fauci in the movie). One imagines the health officials in a bunker somewhere, in the crash position, sheltering from the apocalyptic aftermath of unenlightened county residents enjoying some of their renewed and partial freedom gained by the county’s reckless application to enter Phase I of Governor Brown’s well-intentioned-but-
ultimately-too-leniently- applied reopening framework. The officials are braced.
Except that’s not what is really happening. Consider:
1. The cited number of new cases, 26 since partial reopening, is an uptick worthy of concern. However, to get to that number, one must include the three new cases reported on May 15, the very same day reopening began. I got my medical degree from a law school, but I don’t think those three can be attributed to a reopening that happened the same day. But 26 is marginally scarier than 23, so there you have it.
2. OPB’s story came out yesterday. The day before, Wednesday, there were nine new cases reported in the county, the most of any single day since the pandemic began. This was the “spike.” Yesterday? Just one new case. Now, I’m not saying OPB willfully omitted this fact: its story came out about 3 pm, while it appears the new case data wasn’t released until an hour or two later. But that new data is good news, and perhaps an indication of our getting past the spike. It might also merit an update to yesterday’s (alarming) story, but I’m not holding my breath.
3. Those braced health officials? Here are their actual quotes from the story:
“’Finding these cases means the public health system is working,’ [one official] said, adding that officials expect they successfully contained the outbreak through the voluntary isolation of exposed households.”
And here’s what a county health official said about the barbecues:
“All it takes is one COVID-19 positive person to attend a barbecue, or a block party, or a picnic, and then we’ll have another situation where we are investigating multiple cases.”
In other words, health officials warn that a BBQ attended by an infected person could lead to deployment of contact tracing, which has worked thus far to contain the spread of the disease in Deschutes County. That’s a lot different than bracing for deadly barbecues.
4. There have, thankfully, been zero deaths attributed to COVID-19 in Deschutes County so far.
5. There are, as of Thursday evening, zero Covid-19 patients hospitalized in Deschutes County.
Why spend all this time (mine and, for those still with me, yours) with one story among the thousands written about COVID-19 and reopening? Because all of this is uncertain enough and scary enough without hyperbole that is neither supported by the evidence nor the publicly stated views of local health officials. To be sure there’s hyperbole and inaccuracy aplenty among those who want to minimize the danger of COVID-19. Those of us – what I believe to be the vast majority of us – trying to find a reasonable way through what is, locally, a potential health disaster and a very real economic disaster want and need actual facts, good news and bad news, not exaggerated horror stories.
Late breaking news: A lefty advocacy group called OSPIRG, the background of which I will not bore you with, has this morning come out with a piece urging the Governor to pull Deschutes County’s Phase I status on the basis of the “spike.” OSPIRG also believes, following some prior coverage by OPB, that Deschutes County’s tracing capacity is inadequate. Well, it has thus far proven adequate, but this is a messaging problem the county is going to have to deal with and quickly, while staying on top of tracing and being very public about the reasons for increases.
Devastating: In March, Oregon’s unemployment rate was at a near-record-low 3.5%. Just one month later, it was 14.2%. A staggering 266,600 Oregonians lost their jobs in the first two months of the pandemic. Oregon’s average household size is 2.6 people. The size of working age households is probably significantly higher (with retirees dragging down the average), but let’s just use that number. That would mean around 700,000 of Oregon’s 4.2 million people – one in six – have been newly impacted by job loss in the household in the last two months.
To put the Covid-related job loss in perspective, it serves to compare to the well-known and economy-changing collapse in the late 20th/early 21st century of Oregon’s logging employment base. In 1990, there were 15,774 Oregonians employed in private-sector forestry and logging; there were 5,711 doing that same work in 2018, a loss of around 10,000 jobs over nearly 30 years. Now, these figures don’t include millworker and other forest products jobs and I know from personal experience the economic toll the decline of the timber industry had on the Pacific Northwest. But the rapidity and scale of job losses due to Covid dwarf those job losses. Thus the critical importance of doing reopening right.
A little law: Late Morning Monday, a Baker County Circuit Court Judge declared Governor Kate Brown’s executive orders closing businesses and limiting gatherings of Oregonians, including for religious purposes, “null and void.” The judge relied on an Oregon statute that limits the duration of a “public health emergency” to 14 days, unless extended by the Governor for another 14 days. The Governor’s orders were not time-limited. As of the judge’s ruling, issued from the bench (he just said what his ruling was rather than writing it down), Oregonians were no longer subject to the Governor’s emergency orders and theoretically Portland could have (but thankfully, for many reasons, did not) hastily convened the naked bike ride, which was to be held on June 27, but was cancelled due to coronavirus.
Alas, the window of, uh, opportunity was missed because by 8 pm Monday night the Oregon Supreme Court had stayed the Circuit Court ruling, thereby slamming back into place the full panoply of executive orders. The Supreme Court is hearing oral arguments today from the state and from the plaintiffs in the Baker County case and will presumably rule on an expedited basis whether the orders stay or go.
Torcom Talk: I was on Bud Torcom’s podcast “Torcom Talk” to talk about COVID-19 and reopening. It was a good talk and people looking for a thought-provoking Central Oregon-focused podcast should definitely subscribe (the link above is the YouTube video, but it’s also available on iTunes, etc. in podcast form). Take a listen, and P.S. the technical glitches were my fault.
New Logo and Format: I hope you like the new logo at the top and slightly different format. I swapped out the EagerLaw PC logo for a BBR-specific one because this little email has taken on a life of its own.
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Have a great weekend and Memorial Day!Jeff Eager
Read past BBR emails.EagerLaw PC – A business and real property law firm in Bend, OregonConnect with me on social media:
- May 15, 2020Read more
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Phase I: If you live almost anywhere in Oregon other than Portland Metro and Salem, you probably woke this morning and thought, “So, this is what Phase I feels like.” I know I did.
There’ve been some changes in restrictions for all of Oregon, and more changes in counties like Deschutes that were deemed worthy of graduating from “Baseline” to the aforementioned Phase I. There are now quite a few moving parts to the various executive orders and guidances, so let’s see if we can simplify things a little. Bear in mind the state is now trying to regulate vast swaths of human activity it hadn’t even contemplated until two months ago, so things can be a little hazy. As always, you should consult your lawyer about your specific situation, as what I’m about to give you is not legal advice, nor is it illegal advice:
Executive Order 20-25 = Yesterday’s order defining baseline and Phase I restrictions and processes (if I don’t link to a source below, the source is likely this EO)
Baseline counties = Multnomah, Washington, Clackamas, Polk and Marion counties.
Phase I counties = Every other county.
If you are a person: This should be all of you. Baseline: Gatherings outside the home only up to 10 people, spaced 6 ft apart. Wash your hands, etc. Try to wear masks when in public. Phase I: All of that, plus you can out-of-home gatherings for any reason, with up to 25 attendees so long as you follow physical distancing requirements.
If you employ people: By now, you understand you are only barely tolerated by the state, in spite of your core malevolence, because until the backwards people are finally subjugated and the state is allowed to achieve its rightful place as everything to everyone, you are an essential middle man for tax collection and benefit provision. Baseline: You need to follow these general guidelines, plus require employees to wear masks, and you can require customers to wear masks but
“Take into account that requiring people to wear face coverings affects people differently including people of color who may have heightened concerns about racial profiling and harassment due to wearing face coverings in public.”
The guidance suggests a business interested in requiring customers to wear masks consult its attorney regarding enforceability. You should talk to your attorney. My take: it’s probably ok to require customers to wear masks so long as you require it of all customers, make accommodations for people with health conditions or disabilities that preclude their wearing a mask, ponder at length the stuff quoted above, and if someone won’t wear a mask and won’t leave willingly, call the police and don’t try to forcibly remove them yourself. Come up with a policy about masks and stick to it. Phase I is the same, but with specific rules pertaining to specific industries.
If you own a retail store that’s not a mall or shopping center: Baseline: Allowed subject to this guidance. Phase I: Same.
If you own/operate an outdoor recreation organization: Baseline: Allowed subject to this guidance. Phase I: Same.
If you own a childcare business: Baseline: Allowed subject to this guidance. Phase I: Same.
If you own a restaurant or bar: Baseline: Take out and delivery only. Phase I: Some dine-in allowed subject to this guidance.
If you own a salon/barber shop/massage therapy business: Baseline: Nada. Phase I: Allowed subject to this guidance.
If you own a gym: Baseline: My 600 pound life. Phase I: Allowed subject to this guidance.
If you own a mall or shopping center: Baseline: Paul Blart’s waiting for Oregon to process his unemployment. Phase I: Allowed subject to this guidance.
Got all that? Good. I know the temptation is to disregard some of this stuff because it may seem silly – some of it is. However, you shouldn’t because (a) you don’t want to get shut down by the state or sued; and (b) if we make a mess of this we will be dragged back to a version of lockdown that makes baseline look heavenly. There are plenty of folks who are just waiting to tell the story that even this tentative reopening was ill-conceived and dangerous. Let’s be responsible and not give them that opportunity.
Nursing Homes and Andrew Cuomo: It’s become increasingly clear COVID-19 is especially lethal to residents of nursing homes and similar facilities, where there are lots of old people with serious underlying conditions. It’s looking like, among the many public policy mistakes at all levels of government during this crisis, the biggest may have been our failure to ensure that nursing home patients are protected from the disease. Exhibit A is New York.
New York Governor Andrew Cuomo has gained national attention for his direct and fact-filled press conferences during the crisis, with some Democrats fantasizing about Cuomo somehow replacing Joe Biden as the party’s presidential nominee. The public perception of Cuomo’s handling of the crisis for some reason (more on that) caught up with the fact that his record on nursing homes is horrific. His administration issued an order requiring nursing homes to readmit residents who had been hospitalized with COVID-19, and to accept new residents who were COVID-19 so long as they were “medically stable.” Not only were nursing homes allowed to accept residents who had COVID-19, they were required to accept them, and to expose their highly vulnerable patients to the disease.
Before the existence of the order became public, Cuomo called nursing homes a “feeding frenzy” for the virus. They are. In New York, they are at least in part because of his administration’s rules.
That’s just the start. Cuomo’s staff then slipped a provision in the state budget bill to shield health care facilities, including nursing homes, from liability for negligence claims arising from people catching COVID-19 at the facility. This effectively means that the vast majority of people who are harmed will have no legal recourse at all.
The way this kind of thing happens: (1) the governor tells nursing homes you have to take Covid patients; (2) nursing homes say that’s really dangerous and it’s going to make people sick and kill them and we don’t want to be sued for doing something we wouldn’t do unless you were forcing us to do it; (3) governor says fine, I’ll make it so you can’t be sued. It is an acknowledgement of the extreme danger of the policy. it’s really hard to sue the state – the truly culpable party here – for this kind of thing. So you end up with a bunch of captive old people in various stages of mental and physical illness being subjected to a disease that is wickedly well-suited to kill them, and there’s nothing they or their families can do about it. It’s appalling.
Putting these pieces together, a newspaper editor could write a headline like this: “Cuomo Exposed Most Vulnerable to Virus; Prevented Them from Suing if they Got Sick or Died.” Why isn’t this what most people know about Cuomo ? Take a closer look at those two New York Times articles I linked above.
In the first, about the order requiring admission of infected patients, the Times didn’t mention Cuomo’s lackluster response to a question about the order (“It’s a good question. I don’t know”) and then confirmed the order the next day ,until late in the story. In the second, the one about the liability shield, the Times didn’t bother to mention the fact that New York had required nursing homes to take Covid patients until the 23rd paragraph. The Times bent over backwards to downplay Cuomo’s culpability. If this were happening in Florida or Georgia, where the media have been practically begging for an outbreak following the partial reopening of those states by their Republican governors, the Times would, rightfully, be calling for the resignation of those governors.
I don’t like to write about media bias much because it’s like complaining about the referees in football – it doesn’t change much – but this example is so blatant I had to do it.
Oregon’s 2nd District Congressional Primary: The Bulletin here in Bend ran a piece I wrote about the race in the Republican primary to replace my long-ago boss Greg Walden as the representative of Oregon’s 2nd Congressional District. Ballots must be received by Tuesday, so go vote. Here’s the link and here’s the piece:
Guest Column: The conservative case for Knute Buehler
BY JEFF EAGER
Published Fri May 08, 2020 9:15 PM PDT
There’s an unexpected vacancy in Oregon’s 2nd Congressional District. In a crowded Republican primary, where the race in the heavily Republican district is likely to be decided, one candidate, having represented a left-leaning district in the Legislature, is called a “moderate.” Others, including one named Atkinson, are considered more “conservative.”
Sound familiar? It should, but maybe not in the way you think. It describes the 1998 Republican primary, in which Greg Walden, former state legislator from Hood River, was the “moderate” and Medford’s Perry Atkinson and others were the “conservatives.” Walden won and went on to amass a solidly conservative voting record over two decades.
In the later years, when Walden was chairman of the House Republican campaign operation or the powerful Commerce Committee, progressive activists packed his Bend town halls to bemoan his opposition to Obamacare and his support for border security and increased timber harvests. Few inside Congress or in the 2nd District would describe Walden as a “moderate” today.
Walden announced his retirement in late 2019, and there’s a brutal fight to replace him in the Republican primary, with eerily similar dynamics to 1998. You have one candidate, former Bend state Rep. Knute Buehler, sometimes called a “moderate,” and a handful of “conservatives,” including former state Sen. Jason Atkinson, Perry Atkinson’s son.
This shorthand formulation of the 2020 race is as misleading as it was in 1998. The evidence is that Buehler, like Walden, is a conservative who will cast conservative votes in Congress.
Both Buehler and Walden represented Democrat-leaning districts in the Legislature. Buehler has stuck to his conservative principles in spite of intense electoral adversity. Being a conservative is easy when you represent a conservative district, and even easier if you have no public voting record at all and there’s no way for voters to see how you react when your ideology rubs up against reality. It’s a lot harder when you represent a progressive district like Bend or, in Walden’s case, Hood River.
Democrats know Buehler’s a conservative. Through two House races and unsuccessful runs for secretary of state and governor, Buehler ran on conservative themes: cutting taxes, regulations and wasteful spending; addressing the human tragedy of homelessness in Oregon’s cities, especially Portland; and, standing up for our constitutional system by opposing sanctuary cities. In response, over those four races Democrats and their allies spent more to try to defeat Buehler than they have against any Oregon Republican, ever, and it’s not even close. They saw him as a conservative threat to the progressive monopoly on Oregon’s government. Their spending proves it.
Buehler is very likely to have a pro-life voting record in Congress. Following Walden’s retirement announcement, Oregon Right to Life, the state’s main anti-abortion lobby, said, “Congressman Walden has been a reliable pro-life vote.” There’s no daylight between Buehler’s and Walden’s positions on abortion. Like Walden, Buehler opposes federal funding of abortions, supports the Hyde amendment that bans federal tax dollars from being spent on abortion, and opposes late-term and after-birth abortion. What’s more, Buehler has a record in the Legislature opposing extreme pro-abortion bills. Pro-Life voters can expect that Buehler’s abortion voting record in Congress will be very similar if not identical to Walden’s.
With this history as a guide, 2nd District Republicans can trust Buehler to continue Walden’s exemplary leadership as the sole conservative representing Oregon in Congress
Business Finder: These are open businesses owned by BBR readers.
Mortgage Broker – Arbor Mortgage – Rob Moore – 541-323-0422.
Printing, including physical distancing signs for businesses – Premier Printing – Brett Davis 541-617-9899
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Have a great weekend!
- May 8, 2020Read more
I know a lot of you forward this email on to people, which is great. I’d appreciate it if you would encourage the forwardees to click here to sign up to receive the BBR directly. As you know, signing up doesn’t subject them to spam or sales pitches – just all the weekly(ish) musings of a 45-year-old man who in eighth grade was introduced by the principal at a nerd awards ceremony as “Jennifer Eager.”
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Party (at an appropriate distance and in relatively small numbers) like it’s May 15?: Oregon Governor Kate Brown has released what is apparently the final version of a power point presentation laying out the framework for reopening Oregon. Astute readers will recall that she first publicly announced the framework a few weeks ago. The current version has some more detail, but is not at present incorporated into any executive order or other legally binding document that I can find. So let’s break down the power point, shall we?
Basically, a bunch of stuff changes on May 15. On that date, effective statewide, furniture stores, art galleries, jewelry shops and boutiques may open, so long as they follow OSHA and other guidelines. Those businesses were on the no-no list from the original shutdown order. I also call them “stores I only visit under extreme duress or on First Friday if they have wine.” At least they’ll soon open to serve those with more refined taste.
From there, things get a little more complicated. Counties with low case numbers, which describes the vast majority of Oregon counties including Deschutes County, may apply to enter Phase I or the reopening. You might have thought that Phase I is the first phase of the reopening, but it’s kind of like the third or so, given that restrictions have previously been relaxed on hospitals and there’s the statewide reopening of the fancy pants (but still valuable) businesses in the paragraph above. I guess Phase I is the first phase of county-by-county reopening.
The chart below, from the power point, sums things up pretty well. The left hand column is the type of business or activity; the next column over describes the status of that type of business or activity under current law; then, the business or activity after May 15, applicable to all such businesses statewide; and, finally, the status if the business or activity is located in a county that applies for and is deemed worthy of Phase I status.
Current New statewide Phase I – by county Childcare For essential workers only; cohorts up to 10 Open to all with priority for essential workers; increased cohorts #s to defined Summer school, summer camps and other youth programs Will be open with physical distancing Outdoor recreation and public spaces State park day use areas and boat ramps, option for county/federal camping Restaurants and bars Take-out only Take-out only Sit-down with 6 foot distancing required Personal care – salons, barber shops, massage, etc. Closed Closed Physical distancing, appointments, PPE and customer list required Personal care – gyms/ fitness Closed Closed Max. limit; physical distancing & sanitation required Local gatherings Closed Closed TENTATIVE: For local groups only up to 25 (no travel).
So, restaurants, bars, salons and gyms can open, subject to distancing and other restrictions, on May 15 in those counties that achieve Phase I status by that date, and local gatherings of maybe up to 25 (it appears that number may be adjusted by May 15) are allowed.
One caveat: power points are not generally legally binding, and I suspect we will soon see new executive order(s) issued to codify all this. Businesses should rely on the eventual, legally binding documents once they’re available. If there are significant differences between the final product and what I’ve covered here, I’ll share in a future BBR.
Deschutes County has applied to enter Phase I: Many Oregon counties, including Deschutes and Crook Counties have submitted plans to the state in application to enter Phase I. The Deschutes plan states that the county meets all of the Governor’s prerequisites to open, with the exception of one: the Governor wants 15 contact tracers to track and educate people who may have been exposed to the Coronavirus per 100,000 population. There’s almost 200,000 people in Deschutes County now, so per the Governor’s guidelines we’d need 30 contact tracers. The county’s plan provides that its existing staff of six tracers have proven sufficient and in the event there’s a spike in cases the county will hire more or rely on state resources. The county’s taking a bit of a gamble here, as it is basically hoping the state will be flexible with its guidelines. Hopefully it will, and the county should probably begin ramping up tracing capacity in any event, at least temporarily.
No football ’til October?: The Governor also mentioned that large gatherings such as festivals, concerts and in-person sporting events will probably not be allowed until October at the earliest. Lots of cancellations of big events have already been announced, and it would appear that Duck games in a packed Autzen Stadium won’t happen ’til midseason, if at all. Beaver fans take heart. The restriction would only apply to large gatherings for sporting events, so you should be good.
Incarcerated man with large back tattoo and a love of pot takes interest in Oregon politics: That headline isn’t on its face so strange – there are surely plenty of marijuana-friendly tatted dudes in Oregon prisons who take an interest in politics in one form or another. But this is so much more weird. The incarcerated man in this case is Roger Stone, a former adviser to President Trump who was convicted of obstruction of a congressional investigation and witness tampering, and who’s on house arrest in Florida waiting to get into prison once the Coronavirus risk in the prison is diminished. The tattoo? A large image of Richard Nixon’s face on Stone’s back.
And here’s where Oregon comes in: Stone has endorsed Jason Atkinson in the Republican primary to replace Greg Walden as the representative of the state’s second congressional district. Why? Well, apparently Atkinson for some reason tracked Stone down to ask him for the endorsement. Also, in Stone’s words, “When I find conservative candidates who are pro-cannabis, I will go out of my way to support them.”
We can now add to the many surprising aspects of this alternate reality we’ve slipped into in 2020 that a Republican primary candidate sought and received the endorsement of a convicted felon on the basis of the candidate’s support for federal marijuana legalization.
Screaming Eagles: If you live in Bend and are a good BBR subscriber who immediately opens this email, you might right now be hearing a flyover of Oregon National Guard F-15 Screaming Eagle fighter jets. They’re flying over St. Charles Bend at 11:20 this morning to honor health care workers. Being in close proximity to a flyover by military aircraft is really cool. Fun fact: the F-15 has a 100-0 record in air-to-air combat since its introduction in the early 1970s.
Business Finder: We have a few more businesses who’ve asked to be included in our list of open businesses. I’ve heard from a few business owners who’ve had people tell them they heard about them on BBR, which is really cool. Thank you.
Vacation Rental Property Management
Homage Home Living, Independent Residential Concierge Living
Pacific Northwest Audiology
2205 NW Shevlin Park Rd.
Bend OR 97703
Southside Physical Therapy Inc.
Bend. Physical Therapy.
Have a great weekend!
- May 1, 2020Read more
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“Opinions expressed are sophomoric”: That was the note a guy left when unsubscribing from this august email on March 23. He had been a subscriber for over a year and thus was exposed to a lot of my sophomoric opinions. What pushed him over the edge? In the March 23 edition of the BBR, the one right after Governor Brown issued the stay home order, I observed that while it sure seemed like some form of shutdown was warranted, such a shutdown would have profound negative consequences. For that reason, I wrote, the Governor should give Oregonians specifics about what were the goals of the shutdown, so Oregonians can make informed decisions about the efficacy and duration of the shutdown in light of its trade-offs. The guy’s response was not atypical for many in the early days of the shutdown, who viewed any discussion of trade-offs or negative impacts from the shutdown, even when expressed while supporting the shutdown as perhaps the least bad choice at the time, as tantamount to advocating for more COVID-19 deaths.
The negative consequences of the shutdown began with stunning increases in unemployment and are rippling through nearly every corner of the economy and society. For example, it turns out between March 16 and April 19, 245 more Oregonians died than is typical for that time period. Seventy-eight of those died from COVID-19, according to official counts. Seven percent more deaths occurred at home, versus in a hospital. Now, were some of the 167 excess deaths not officially attributed to COVID-19 actually from COVID-19 but not reported as such? Quite possibly. But given the confluence of more people dying at home versus the hospital, plus significantly higher death totals, plus the existence of the Governor’s order prohibiting hospitals and some other health care providers from providing non-emergent services, suggests that some of those excess deaths may have been due to people being unable to receive the health care they needed.
Thankfully, as of today, the Governor has allowed hospitals to opt in to treating non-emergent cases under certain parameters. It is nearly certain that the partial hospital closure had, at the very least, negative health consequences for many Oregonians. Otherwise, why would hospitals provide – and insurance cover – non-emergent services in the first place? There is a cost – both financial and in human health and lives – to the various shutdown orders, and to acknowledge and factor that cost into public policy is not sophomoric. It’s essential.
A Thumb on the Scale for Liberty: A Willamette University law professor believes the Governor’s shutdown order may be unlawful because it is open-ended and not limited to 14 days. His reasoning: there are two emergency powers statutes, and the one specifically about epidemics requires an executive order to be limited to 14 days, though subject to renewal. I haven’t spent a lot of time thinking about it, but preliminarily I think that legal analysis is not persuasive. The legislature didn’t choose to amend the more general statute, which has no time limit, when it passed the later, more specific law. I can’t think of a reason why the Governor could not choose to rest her authority on the more general statute, which the legislature has chosen to retain, if she wants.
While I think the Governor’s order is probably statutorily okay, the professor is spot on when he says an order limited in duration is preferred because it “puts the thumb on the scale in favor of liberty and the rule of law.” The Governor’s authority to enact emergency orders should be (and has been) an extraordinary measure that is undertaken only in the most extreme circumstances. Because the power to restrain Oregonians from exercising what, in more normal times, are rights protected by the U.S. and Oregon constitutions, the burden of demonstrating the initial and ongoing necessity of those restraints must rest with the Governor. An order with a sunset date requires the Governor to justify to Oregonians that the order must remain in place. Without a sunset, the burden is on Oregonians who believe the order should be changed or rescinded.
Part of the reopening plan, which will presumably come in the form of another emergency order, should include time limits for ongoing restrictions, which may be extended as warranted by infection rates or hospital capacity or whatever metric it is the Governor is relying upon. This would help to bring Oregon closer to the uniquely and essential American principle that individuals’ constitutional rights may only be infringed by the government as seldom and as minimally and for as short a time as possible.
Liability for Businesses That are Open or Reopen: If you operate your business during the COVID-19 pandemic, might you get sued? The answer is yes, in part because, as I frequently tell my clients, anyone can sue you for anything. The goal is to minimize the risk of losing such a lawsuit if it’s filed. Some people are urging Congress and state legislatures to provide a kind of safe harbor for businesses that reopen, in order to reduce the disincentive to reopen caused by liability risk. Unless and until that happens, businesses that want to operate need to piece together a reasonable strategy based upon the basic negligence standard that they must act reasonably to avoid foreseeable harm. The people most likely to incur harm due to your business operations are customers and employees.
To protect customers, businesses should follow any of the Governor’s orders in place at the time. Right now, it’s still her original shutdown order, for most businesses, which requires businesses to allow employees to work from home if possible and requires appointment of a physical distancing czar to ensure proper precautions are followed. These are requirements you must follow. If you don’t the state could force you to close. Failure to abide by the orders will also likely be good evidence of breach of your duty of reasonable care in the event someone gets sick as a result. In addition, businesses should follow relevant CDC guidance about distancing and other measures such as hand washing, etc. It’s important to understand that following these orders and guidelines do not necessarily protect a business from liability. Remember that the relevant standard is to exercise reasonable care. So, if a business has reason to believe that more stringent measures are required in order to protect customers from COVID-19, then the business should take additional, reasonable steps.
To protect employees, the same reasonableness standard applies in many cases, but there are also a host of statutory issues to worry about. The Governor yesterday released draft guidelines that recommend steps for businesses to follow. Even to the degree those are suggestions, it is advisable for businesses to heed them as those suggestions are very likely to establish at least a floor for reasonable care in this context, even if they are not required. In fact, even though they are in draft form currently, it would be a good idea to begin to follow them now. If an employee thinks they’re sick, remember that businesses are restricted from asking questions about the employee’s health except under certain circumstances. These kinds of issues differ significantly and so if a business has an employee complain or ask questions about the business’s COVID-19 policies or approach, it’s a very good idea to talk to a lawyer. There are many factors to consider, and some of them are at odds with each other. Getting sued is really expensive and unpleasant.
Businesses should contact their insurance agent to ask two questions: (1) Does the current business policy cover claims against claims by either employees or customers who may contract COVID-19 at or due to your business and if not, is there such a policy available? And, (2) Does the business have employment practices coverage (this may be a standalone policy or part of the general business policy) that covers employee claims resulting from COVID-19 and if not is such a policy available? Employment practices insurance is always a good idea for businesses with lots of employees; it’s an even better idea now. There is little question that we will see a spike in employment claims either directly due to COVID-19 exposure or due to alleged wrongful termination for unrelated reasons.
There are and will be more guidelines and orders affecting specific types of businesses, which I’ve not covered here. As always, every business and situation is different and business owners and operators should talk to their attorney to get specific advice about their situation. These are general guidelines only, and not intended to serve as legal advice.
Now this is Sophomoric Content:
1. Wendy’s announces it will give a free four-piece chicken nuggets to each customer last Friday, to show support for its customers during the COVID-19 crisis.
2. A Portland man with the Twitter handle “Skweezy Jibbs” spent five hours driving to 17 different Wendy’s twice to take full advantage of the offer, to the tune of 136 nuggets.
3. It looks like he did it while using a pair of Hanes underwear as a mask. (Click the link and zoom in on the photo of the Skweez posing with his nugs).
With five hours, a pair of undies and, God willing, a Kevlar-lined digestive tract, Skweezy Jibbs has defined this era.
Open Businesses: Last week, I asked BBR subscribers who own or work at a business that’s open and could use some exposure to email me. Here are the responses so far. I hope you’ll check them out, if for no other reason than these folks have the same deeply troubling Friday reading habit as you.
S & F Land Services – Bend/Portland – land surveying and remote sensing – (541)797-0954
Plus Property Management – Bend/Redmond – commercial and residential property management service – (541)389-2486
Nine Peaks Solutions – Bend – technology consulting/paperless document management – (541)797-7595
The Haven – Bend – co-working and meeting space – (541)633-7174
Bend Mail and More – Bend – packing/shipping/mailing service – (541)797-0475
Cascade Views Realty – Central OR residential real estate broke – (541)678-2232
Matrix Integrated – Bend/Portland – European auto repair, maintenance and performance – (541)241-5348
Webfoot Painting – Central OR – painting, carpentry and Trex decking – (541)204-8737
VIVA!GYN – Bend – gynecology – (541)323-3747
The Menopause Center – Bend – menopausal care – (541)323-0177
If you missed out on this week’s list, respond to this email with the url for your business, what it does, and a phone number for the business. I’ll run a follow-up list next week(ish) if I get any emails.
Your friends can sign up to receive the Bend Business Roundup here. No sales, no spam. Just the weekly email you’ve come to know and love.
Have a great weekend!
- April 24, 2020Read more
I’m going to mix things up a bit this week. Instead of the usual categories, I’m going to choose topical categories, with the exception of Et cetera, which, well, I don’t know what else to call it. I’m not abandoning the usual format – just experimenting. Let me know if you have thoughts, positive or negative, on this approach.
A Light at the End of the Tunnel?: After a press statement that left us (well, me) wanting more specifics, Governor Kate Brown’s administration this week has begun providing a bit more detail. Consistent with the press statement, there are still criteria that must be met before reopening begins. One is “downward trajectory of documented cases within a 14 day period.” Excuse me if I’m belaboring things, but my question continues to be, does this mean a decline in the total number of current, documented COVID-19 cases, or a reduction in the growth of cases? If the latter, barring a tragic reversal, we have already checked this one off:
That’s a downward trajectory in the number of new cases reported from at least April 3 to April 21. If the metric is the total number of active cases, then that presumably hasn’t been reached yet. I’ve gone through this a bunch of times, and I still honestly don’t know which metric the Governor means.
Another prerequisite requires the availability of “robust” (sigh) testing for hospital workers but only “sufficient” personal protective equipment for them. Those imprecise adjectives for now hold the place that numbers, or at least ranges of numbers, should occupy. Similarly, we don’t know what the process and priorities of opening will be, e.g. piercing studios versus tattoo parlors versus goat yoga studios, once the prerequisites are established and met.
Back on March 27, four days after Governor Brown issued the stay home order, I urged her and other leaders to share the data and criteria they’re using to make decisions, including decisions about when and how to reopen. Unfortunately, I received, to my knowledge, zero votes for governor in 2018, but more importantly we’re still struggling to get specifics about a plan to reopen. This planning process, which at least is now getting communications attention from the Governor’s office, should have been started as soon as the shutdown started because, well, once you shut it down you gotta open it back up again. The delay and lack of detail is, I think, contributing to the protests we’ve begun seeing. The Governor’s office says the plan won’t be ready until the week of May 4. I hope they beat that deadline.
Good News: Governor Brown yesterday announced that hospitals and dental offices can reopen for elective procedures as of May 1, so long as they vouch for having adequate personal protective equipment and, in the case for hospitals, adequate capacity to handle a surge in COVID-19 cases. This is important because hospitals (and I assume dental practices) have been hemorrhaging money while, in the case of St. Charles, having, as I write this, zero (0) COVID-19 patients, and people have been going without important care.
The Governor’s approach here is, I think, spot-on: hospitals know how to run themselves better than the state, so it’s appropriate for the state to provide some guidelines and allow hospitals to essentially self-certify that they’re ready to reopen. It’s a decentralized approach that acknowledges the likelihood in differences between facilities. It also, for the first time in the debate about reopening, has a date certain.
Buy Local: During the last economic collapse (I know I’m getting old because I’ve been an arguably sentient adult for multiple of these now), there were lots of bumper stickers around Bend urging us to “buy local.” It’s remarkable how many of those you’d see in the Target parking lot. It’s almost as if people derive satisfaction from telling people to do things they themselves don’t do. The “buy local” stickers were but a faint warning for today’s quarantine social media shaming. Let’s just say the more emphatically and repeatedly a person posts “stay home save lives” the more I assume he or she is privately holding neighborhood-wide spin the bottle parties.
But I digress. One of the best features of Governor Brown’s developing framework to reopen is that it stresses regional or county flexibility. This makes a ton of sense in a state with five counties with zero COVID-19 cases. It also makes a ton of sense because state law requires counties to have public health authorities, and the state provides funds for the same. Did you know Deschutes County has its own epidemiologist as well as a communicable disease investigator? Me neither, until recently. The purpose of requiring and funding these local experts is, presumably, to empower counties to confront public health emergencies in their counties. There is local expertise that can contribute to a localized approach, and the Governor should rely upon that local expertise, within state guidelines, as she is doing with hospitals.
The Deschutes County Commission is meeting this (Friday) afternoon to discuss how to reopen the county. Life and business are restricted not largely by county action, but by the Governor’s stay home order. So, the county should focus on the prerequisites the Governor appears likely to require. That would include working with St. Charles to ensure adequate PPE and also communicating with the state and the public about the COVID-19 positive tracing program already implemented by the county. The goal should be to assure the Governor and Deschutes County residents that the county is the right entity to manage reopening pursuant to a statewide plan that hopefully grants significant flexibility to counties.
A Little Law: The Oregon Supreme Court yesterday appears to have upheld campaign fundraising limits. For years, Oregon has had among the strongest free speech protections, which protections have extended to unlimited campaign contributions. I haven’t read the decision yet, so I’ll withhold final judgment, but generally speaking campaign contributions are ineffective means of keeping money out of politics. They tend to have the effect of pushing money away from reported campaign contributions to less accountable and sometimes anonymous third party groups, which erodes voters’ ability to determine who’s paying what to whom.
Business Finder: There are lots of signs around town reminding people that certain businesses are open to varying degrees during the lockdown. There’s generally a lot of confusion about the extent of the order, and I’ve found that lots of places are open (legally) that one wouldn’t necessarily expect. So, if you’re reading this email (or as a blog post) and own or work at a business in Bend or elsewhere that is open and could use some exposure, just email me your business name, business type, and url, phone number, or email for people to reach you. I’ll run any submissions at the end of next week’s BBR. A surprising number of people, located both in Bend and all over the place, read this thing, and every little bit of exposure helps these days!
Your friends can sign up to receive the Bend Business Roundup here. No sales, no spam. Just the weekly email you’ve come to know and love.
Have a great weekend!
- April 17, 2020Read more
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-
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.
Your friends can sign up to receive the Bend Business Roundup here. No sales, no spam. Just the weekly email you’ve come to know and love.
Have a great weekend!