• Bend Business Roundup 6-12-20

    By on June 12, 2020

    Happy Friday,

    Here’s some stuff you might like.

    What keeps me and maybe Kate Brown up at night

    In my free time lately, when my mind is not occupied with the immediate needs of a wife, two young boys, an elderly male cat named Baxter, two businesses, one weekly(ish) email newsletter and one or perhaps two blue jays (one of whom the boys named Alex) who screech endlessly at Baxter when he’s outside, I’ve been thinking about two things, mostly:

    1. Are the blue jays being mean or friendly? Baxter’s too old to threaten them, and he honestly appears to enjoy listening to their screeches. It’s likely they are mocking him and he’s oblivious, just happy someone is paying attention to him, but I’d prefer to think cat and birds have a mutually supportive friendship.

    2. Oregon Governor Kate Brown has a real problem no matter what happens with COVID-19, now, in the wake of protests Brown not only allowed in contravention of her lockdown orders, but endorsed and supported.  If cases spike in the aftermath of the protests, her mistake will have been to ignore her own order. If cases don’t spike after thousands and thousands of people gather in Portland day after day, then her mistake was to issue orders that prohibited human interaction on a much smaller scale than what occurred during the protests.

    The more I think about it, I’m pretty sure the blue jays are just messing with Baxter.

    Cases are going up and Brown has paused reopening

    Oregon set a record with 178 new cases reported yesterday, which helped prompt Governor Brown to freeze all reopening, while denying Multnomah County’s application to enter Phase I. One reason the Multnomah application was rejected is that more than 40% of the newly reported cases in the county could not be traced to a single source, a prerequisite to reopen.

    Now, there is debate about what has caused the increase in cases. You can bet that some folks will say it’s reopening that’s causing the increase; others will say that it’s the protests; still others will say that it’s isolated workplace spread in places like Pacific Seafood in Newport. I don’t know the answer, but I do know that the Governor and almost every media outlet in Oregon are going to try to minimize the role of the protests, the Governor will also attempt to minimize the role of the reopening, which was her plan after all, and a lot of conservatives, to the extent you hear from them, will try to minimize the role of reopening and focus on the role of the protests. This should be fun.

    What I’m thinking about this morning is the Portland restaurant owner, hair salon owner, “non-essential” retailer, and their countless employees who were ready to open this morning, subject to strict physical distancing guidelines, but learned last night that they could not lawfully reopen. Some of these businesses were boarded up due to protests in which thousands of people commingled with little regard for physical distancing, right outside. Even if you believe, like I do, that the peaceful protests were justified, this would be excruciating.

    The economy 

    Employers unexpectedly added 2.5 million jobs in May, cutting the unemployment rate nationally to a still really high 13.3%. This is welcome news, of course, for those who have been able to go back to work. More broadly, the hiring increase, coming as it did during a month in which many states began reopening their economies, bolsters the possibility that the economy is staged for a significant and perhaps rapid comeback if and when COVID-19 and related restrictions ease.

    This raises the stakes of getting reopening right considerably. If, rather than being shocked into a longterm slowdown, the economy in fact has the untapped potential of a senior citizen-piloted Porsche Cayenne inching its way, ever so hesitantly, through and between roundabouts on Bend’s Mt. Washington Drive, en route to a four-car heated garage in Broken Top, then the ongoing impact of the disease and policies to address it make a big difference.

    The police

    For good reason, we’re hearing a lot about police misconduct and ways to combat police brutality in the wake of the George Floyd killing. It’s been reported that the officer who killed Mr. Floyd had been subject to numerous conduct complaints prior to this incident. How can this happen? Well, part of it has to do with police unions and the contracts they negotiate with cities. Those contracts can make it very hard to remove a poorly performing or dangerous officer. Just for fun, I decided to take a look at the collective bargaining agreement between the City of Bend and its police union. Fortunately, I think Bend has a really good police force, and we haven’t seen the same problems here that exist in other cities. However, the contract language is likely similar to that of other cities, so it’s worth review.

    The thing is 39 pages long. Beginning on page 23, the Discipline and Discharge section is fairly straightforward, but with some oddities. For example, if the city disciplines an employee, “it will attempt to do so in a manner that will not embarrass the employee before other employees or the public.” If there were an issue of police brutality, it would be difficult to imagine how the city would “attempt” to address that issue without embarrassing the officer. The likely result of this provision is that the city has a strong incentive to “attempt” to keep its disciplinary actions secret to avoid embarrassing the officer. This serves the offending officer well, but not the public. Also, discipline can only be made for “just cause.”

    Then we get to the grievance procedure, which starts on page 21. The grievance procedure is triggered by an officer or the union charging that the city violated the terms of the contract. In the context of a grievance about disciplinary measures, this could come up if the officer believes he or she was disciplined without “just cause,” a nebulous and in this contract undefined term, or that the city didn’t attempt to avoid embarrassing the officer.

    Once triggered, the grievance procedure calls for a series of meetings and written communications and mediation culminating, if the matter is not resolved, arbitration before an arbitrator from the Oregon ERB State Conciliation Service. I recall from my time on City Council that you really don’t want to arbitrate against a public sector union because most of the state-sanctioned arbitrators have previously or do currently represent public sector unions and are predisposed to rule in their favor.

    The entire structure is designed to make it difficult to discipline police for misconduct, to keep the process by which police are disciplined secret, and to skew the results in favor of police officers. I do believe that the vast majority of police are upstanding folks trying their best to do a really hard and dangerous job, but those officers have nothing to fear from a system that rewards good officers and forces the bad ones out.


    Protesters in Seattle have taken over a six-block area they call the “Capitol Hill Autonomous Zone,” or CHAZ for short, and are following in the inglorious footsteps of the Confederate States of America by claiming to secede from the U.S.. There’s a sign when you enter CHAZ saying you’re leaving the U.S.A., and they’ve changed the sign on the police precinct building read the “Seattle People Department.” They’re picking up garbage, enforcing their version of law, and maybe requiring a little quid pro quo in the form of payment from residents located within CHAZ. There are apparently people with guns guarding the borders (which include barriers that look suspiciously like walls)..

    Some of this gets almost to the point of self-parody. One protester complains that CHAZites lack food because they invited homeless people in and they ate all the food. The hungry CHAZite pleaded via Twitter, ““We need more food to keep the area operational. please if possible bring vegan meat substitutes, fruits, oats, soy products, etc. – anything to help us eat.”

    While the new citizens of CHAZ await the Berlin Air Drop of vegan meat substitutes and soy products, it sure seems like they’re replicating a lot of the things they don’t like about how things work out here in the United States of America – enforcing the rule of law by force when necessary, for example. Let’s hope CHAZ is reintegrated into our country peacefully and soon.

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    Have a great weekend!

    Jeff Eager
    Read past BBR emails.

    What I do:

    EagerLaw PC – A business and real property law firm in Bend, Oregon.

    Insite LGA Corp. – A campaign consulting, strategic communications and local government monitoring firm.

    Waste Alert – Local government monitoring for the solid waste and recycling industry.

    Connect with me on social media:

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  • Bend Business Roundup 6-5-20

    By on June 6, 2020

    Happy Friday,

    Here’s some stuff you might like.

    Phase II: The Empire Strikes Back: As I write Friday morning, Governor Brown continues to review Deschutes County’s application to enter Phase II of Brown’s reopening framework, which would allow the opening of pools, bowling alleys, other recreational activities and increase the size of permitted gatherings. She has already approved 25 counties for Phase II. Apparently, the hangup with the Deschutes application is that in the week of May 25-31, of the nine new Covid cases in the county, more than 30% were not traced to a known contact. The county has provided additional information to the state apparently showing that some of the cases had a history of recent travel and thus were not indicative of untraced community spread. The county expects to hear back from the Governor today, hopefully with a green light to enter Phase II.

    Protesters have “Changed the Science Behind” the Lockdown: After a Baker County Circuit Court judge sided with churches threw out Governor Brown’s stay home orders recently, she responded by saying, “The science behind these executive orders hasn’t changed one bit. Ongoing physical distancing, staying home as much as possible, and wearing face coverings will save lives across Oregon.” This is a true statement. A judge’s order cannot change science.

    The judge’s order didn’t change the science, and neither did protests against the stay home order last month, but protests against the killing of George Floyd, an African American, by a white police officer in Minneapolis, were apparently the scientific breakthrough the world has been waiting for. Here’s what Brown said about those protests:

    “On Friday thousands of people gathered at several peaceful protests across the city. This was a cry for action.   A call for reform.  A community in mourning . . . To everyone who is hurting right now, I want to say I see you.  I hear you.  I stand with you.  And I add my voice to yours.”

    A gathering of thousands of people is a direct violation of the Governor’s order, but she’s not worried about that, or the deaths that she insists will result if her orders are violated for any purpose other than this particular type of protest, and in fact she’s ready to stand with them in violating her own order. Hopefully someone is getting plasma from the protesters so the rest of the population can be similarly inoculated from the virus.

    The killing of George Floyd sure looks, based on the video, like an outrageous murder. There is no question that people have the right to peacefully protest such an act, and to be honest with you, I’m glad they did. But here’s the rub, people also have a right to exercise their religion, go to work, associate freely with friends and family, and protest against the Governor’s orders. The rights of Oregonians have been abridged in all kinds of ways in order to minimize deaths from Covid.

    The Governor’s response to Oregonians exercising their rights, or seeking to exercise their rights, sure seems to depend on whether she agrees with what they’re doing or saying. That’s a big problem in a number of ways. First, legally, she may find it even more difficult to enforce her orders against Oregonians attending church or gathering with friends, or opening businesses because she has explicitly embraced the violation of her orders by the protesters. Second, Oregonians have been told for months to “Stay home, save lives,” and are now wondering whether that was true to begin with or whether lives are expendable if the reason for leaving home is something endorsed by the Governor.

    The Governor is right now painstakingly parsing the cause of as few as three Covid cases in Deschutes County in order to determine whether residents may lawfully play pickleball, while embracing without question the serial gathering of thousands of protesters in close proximity. The Governor has eviscerated her case for the ongoing lockdown, and I suspect Oregonians will increasingly ignore her orders, just like she has.

    Colin the Chicken: A state that is ruled by one party for a long time will inevitably develop intra-(that is, within) party disputes. Politicians basically compete for attention, and if there are no meaningful rivals in the other party, they find ’em in their own.

    Which brings us to the spat between Oregon Governor Kate Brown and Portland Mayor Ted Wheeler, over Wheeler’s request for Oregon National Guard troops to help maintain order in his city during rioting. It seems undisputed that Wheeler asked Brown to send in the Guard, but he didn’t like how she characterized it. Here’s Wheeler, per OPB:

    “The idea that I would ask the governor for the National Guard for the purpose of direct confrontation with demonstrators on the very same day that Donald Trump is saying that the military should be deployed into states to crush even peaceful demonstrations, that is potentially incendiary.”

    Wheeler’s beef is not that Brown disclosed the request, but that she disclosed the request on “the very same day” Trump urged deploying the military.

    And herein we find an interesting pattern. I’ve written before that Brown didn’t show much interest in reopening Oregon’s economy until right after Trump said that he, not the governors, had the authority to open the economy.

    Oregon’s (very) Democratic leaders sure seem to arrive at a lot of their policy and communications strategy on the basis of doing or saying the opposite of what Donald Trump does or says, which in a really weird way gives Trump more control – consciously or not – over what happens out here than he otherwise would. For example, I think it’s at least plausible that Trump said he was going to reopen the states to trigger a pavlovian response in reluctant Democrat governors to take the initiative.

    I understand that Trump is about as popular in Portland as a chicken with inadequate pedigree, but not all political questions need to rotate around Trump. Republicans do this too on the other side, of course. We all have to get used to the idea that Trump will either be out of office or a lame duck in January 2021 and evaluate policies more or less on their merits.

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    Have a great weekend!


    Jeff Eager
    Read past BBR emails.What I do:

    EagerLaw PC – A business and real property law firm in Bend, Oregon.

    Insite LGA Corp. – A campaign consulting, strategic communications and local government monitoring firm.

    Waste Alert – Local government monitoring for the solid waste and recycling industry.

    Connect with me on social media:

    Read more
  • Bend Business Roundup 6-2-20

    By on June 3, 2020

    This isn’t a normal Bend Business Roundup. If you read only for the business or the Bend stuff, you should probably skip this one. Regular programming will return Friday.
    What We Have in Common

    The year 2020, not yet half over, probably qualifies as the worst year in American history since 1942. The year 1942 began a few weeks after the Japanese surprise attack on Pearl Harbor, bringing the U.S. into a global war for which it was not initially well-prepared. Throughout the year, America and its allies got pretty well stomped by Germany and Japan. The Nazis continued to occupy France and much of the rest of Europe, with D-Day still many months away.The U.S. economy, only beginning to wake up from a decade-long depression, was further hampered by the needs of supplying the war effort, with broad rationing of gasoline and other essentials. There was a real question as to whether America could endure, militarily or economically, as a free republic, as it fought totalitarian regimes on two fronts and a seemingly intractable economic distress at home. 1942 was a bad year.

    With honorable mention for 1968 (Nearly 17,000 Americans killed in Vietnam, assassinations of Robert Kennedy and Martin Luther King, race riots in 120 cities with 39 dead and thousands wounded), it’s taken until right now to rival the historic badness of 1942. In the first half of 2020, we’ve had the third impeachment trial of an American president, over 100,000 die from a pandemic, the worst economic downturn since the Great Depression, and, now, rioting in numerous cities triggered by the killing of George Floyd, an unarmed African American, by a white police officer in Minneapolis. The year 2020 lacks the “will Western Civilization endure” drama of 1942, at least so far, but things have gone south really, really fast.

    Moreover, the events this year are being processed through an exceedingly divided and antagonistic political culture.In an era in which even relatively minor events drive a lot of the loudest people in our country into their partisan political corners, the one-after-another seismic shocks (each one of which will warrant a chapter of their own in American history) have Americans figuratively, and, tragically, literally, at each other’s throats.

    With that context, I’d urge you to take a moment and think about what we Americans have in common when it comes to the most recent tragedies of 2020: the killing of George Floyd and the subsequent riots.

    My theory is that a large majority of Americans agree on four key moral judgments:

    1. It is bad for a police officer to kill an unarmed man who, based on all available evidence, posed no threat of imminent harm to the officer or the public.

    2. It is good for people to protest the occurrence of 1.

    3. It is bad to physically harm or destroy the property of innocent citizens, even if done in the the name of 2.

    4. It is bad for Americans to harm or otherwise treat differently their fellow Americans on the basis of race, especially when such harm is magnified through the organs of the state, like the police.

    Now, you’re probably thinking, “I saw so and so post on Facebook about 3, which must mean she doesn’t agree with 1 and 4,” or the reverse. You’d possibly be right – in a big country, you’re going to have some people who are outside the mainstream, but I would argue most people agree on the four moral judgments above, but choose to emphasize some more than others, especially on social media. If you actually talk to them, you realize that their views are more nuanced and usually encompass all of those judgments in one way or another.

    Which raises the question of why people tend to emphasize just one aspect of a complex situation with multiple moral implications. I think it’s often a way of drawing distinctions between themselves and people they think are on the other “team.” Something like, ” Well if Nancy Pelosi, with whom I have fundamental political disagreements, thinks George Floyd’s death was a tragedy and criminal, I can’t possibly say that too, so I’m going to focus on the riots, which Donald Trump has denounced,” or, once again, the reverse. The whole mess creates the appearance of even more division than actually exists and the cycle repeats itself, literally, ad nauseam.

    If I’m right, and most of the Pelosi fans think the riots are bad and most of the Trump fans think the killing was bad, what we see in a lot of our public discourse is only a partial representation of the full moral judgments of most Americans. It serves us well to remember that as we consume and produce opinions on this and other topics.

    And, more important to the long-term health of our republic, if I’m right, it means that most Americans continue to embrace the moral judgments called for in these circumstances by American founding principles as more fully realized over time with regard to race and equality. By all appearances, George Floyd was deprived of his life by a state actor without due process of law (5th and 14th Amendments). Protesters have the right to speak out against that deprivation (First Amendment). States have a legitimate role in preventing the further loss of life and property by rioters.(Tenth Amendment). The government can’t harm people or treat them disparately because of their race (5th (as modified by the 14th) and 14th Amendments).

    It’s a very good thing if Americans remain broadly in agreement with regard to these principles, because they are a very big part of what it means to be an American. You may be thinking I’m too optimistic, and I may be, but I think if you scratch below the surface of fiery social media posts, there’s a lot more that we have in common than what appears.

    There are people who gain political power and/or money from magnifying the appearance if not the reality of the divisions in our country, and unfortunately some of those people dominate our political discourse. The good news is, we don’t have to play their game. If we take a moment to tell a more nuanced story, and deliberately look for and even assume sometimes unstated nuance in the stories of others, we can inch toward a healthier debate about all that’s happening in this pretty miserable year.

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    Jeff Eager

    What I do:

    EagerLaw PC – A business and real property law firm in Bend, Oregon.

    Insite LGA Corp. – A campaign consulting, strategic communications and local government monitoring firm.

    Waste Alert – Local government monitoring for the solid waste and recycling industry.

    Connect with me on social media:

    Facebook TwitterLinkedIn

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  • Bend Business Roundup 5-30-20

    By on May 30, 2020

    Happy Friday,

    Here’s some stuff you might like.

    The Birus: Our boys, five and three, talk about the Coronavirus quite a bit, and they pronounce it “birus,” which I love. “The pool is closed because of the birus . . . . Donald Trump is fighting the birus . . . . Is the birus there (in reference to most anyplace we drive by)?” You get the idea. So, when I think about saying or writing “virus” it pops into my head as “birus” and I have to consciously translate it back into cognizable English.

    Anyway, in Oregon, it seems the birus might be on the run for now. The curve that we desperately wanted to flatten, and did, now has an identifiable downward slope, both in terms of positive tests (even though far more tests are being performed) and in terms of hospitalizations. This is great news.

    Even better, in Deschutes County, after a mini-spike last week, we’ve had mostly low numbers with several days with no new cases at all. There was one new case yesterday, and zero the day before, for example. There have been no deaths in the county and there are no COVID-19 patients in the hospital here.

    If you were around Bend during Memorial Day weekend, you were in good company. Lots of tourists, including California and a lot of Washington license plates. With the influx of tourists as well as locals getting out and about and around each other more, it will be interesting to see if there’s a spike in cases. Based on everything we’ve been told, we should expect an increase in cases, but if hospitalizations remain low, that’s a really good sign for Summer.

    If, somehow, there is NOT an increase in cases in the couple weeks after the busy weekend and the first couple weeks of Phase I, then things really get interesting. To this layman, it sure seems that significant relaxation of the shutdown followed up by no or minimal upward movement in cases would indicate that the causal relationship between keeping people home and containing the birus may not be as strong as originally thought, and the case for a faster reopening gets a lot stronger.

    Republicans and Conspiracies: I’ve been a Republican since I first registered to vote largely because the party has presented the most politically plausible vehicle for limiting or even reducing (haha) the government’s size, cost and control over our lives and for protecting individual liberties. And also, nothing says “I’m cool and not weird at all” on an Oregon college campus like being a Republican.

    Sometimes the party does things that impede its ability to perform the function I want it to perform, in part because that’s not the function all Republicans want the party to perform, and in part because Republicans, like everyone else, can be stupid. Especially, it seems, Republicans in Oregon.

    Which brings me to Jo Rae Perkins, who has won the privilege of being the Republican who will be massacred by U.S. Senator Jeff Merkley in November. Perkins would be indistinguishable from the conga line of unfunded, unknown and irrelevant candidates the party regularly puts up for statewide office, but for one fact: she’s into a group called QAnon.

    If you, like me until a week or so ago, don’t know what QAnon is, let me enlighten you, no, actually let me do the opposite of enlightening you because I promise you will be less intelligent after reading this than you were before. Per the OPB story linked above, “The movement was started by someone posting under the letter ‘Q’ claiming to have inside knowledge of high-level conspiracies aimed at taking over governments and major businesses – while also alleging prominent Democratic figures run pedophilia rings.” Many QAnon adherents believe that Donald Trump is combating and working to expose the conspiracies.

    Like all conspiracy theories, QAnon is both palpably false but also impossible to disprove, because of course no one involved in the pedophilia rings would admit to it, and the media and law enforcement are all in on it too, the theory goes.

    Perkins isn’t going to win, QAnon or no, so why does this matter? It matters for two reasons, one philosophical and one political.

    First, QAnon and similar conspiracy theories are anti-conservatvie. Conservatism is based upon the theory that all people operate with limited knowledge and are flawed, in that they often act selfishly or out of malice or stubbornness or pride. For this reason, the power of government must be limited in order to prevent people who are going to either mess up or intentionally do bad things from doing so with the levers of an all-powerful and force-wielding state.

    The U.S. Constitution does all kinds of things to limit our rulers’ ability to make a mess of things: dividing power between the federal and state governments and between three branches of the federal government that can check each other. QAnon and similar hallucinations are anti-conservative because they seek to empower the “good guys” to get the supposed “bad guys,” when a conservative should say, “we’re all bad or at least flawed guys because we’re guys so let’s protect everyone from us.”

    Second, Republicans should distance themselves from this kind of thing if they want to have any role in governing Oregon in the future. Any time the New York Times, CNN, NPR and others run stories about a Republican nominee in Oregon, you know something is wrong. Those outlets like nothing better than to make Republicans look like kooks, and too often Republicans make their jobs way too easy.

    More importantly, Oregonians desperately, desperately need a competent opposition party that keeps things competitive enough that there’s electoral risk for the majority party when they do things like, oh, failing to pay out about half of the state’s 440,000 unemployment claims during the worst economic downturn since the Great Depression. One of the reasons why there will be no political repercussions for that scandal, and why there weren’t for the Cover Oregon mess or the Kitzhaber corruption is because voters don’t trust that Republicans can do it better in part because Republicans are seen as being the types of people who are into crazy conspiracies.

    So, I urge you not to vote for Perkins. I won’t vote for either Perkins or Merkley; I’ll probably write someone in.

    PPP Forgiveness: If your business received Payroll Protection Program, it’d be a good idea to get acquainted with the SBA’s new guidance about how those funds can be forgiven, i.e. you don’t have to pay them back.

    MAGA Trains: A week-and-a-half ago, Donald Trump tweeted that he was giving TriMet, the Portland area’s public transit provider, $184 million in federal support to keep it running while revenue suffers due to Covid. I can’t even imagine the moral crisis this presents for many Portlanders. A good Portlander must, in equal measure, love (at least the idea of) public transportation while also hating Trump and everything associated with him. What is a Max-loving #resistance member to do when evil incarnate pollutes the transportation embodiment of all that is good and (in a strictly secular sense of course) holy? Is it morally acceptable to ride the MAGA trains? These are the burning questions for which I and only I demand answers.

    Were you forwarded this message? Sign up. No sales, no spam, just the weekly(ish) email smart people delete without reading less often than other emails.

    Have a great weekend!

    Jeff Eager
    Read past BBR emails.What I do:EagerLaw PC – A business and real property law firm in Bend, Oregon.Insite LGA Corp. – A campaign consulting, strategic communications and local government monitoring firm.Waste Alert – Local government monitoring for the solid waste and recycling industry.

    Connect with me on social media:

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  • Bend Business Roundup 5-22-20

    By on May 22, 2020

    Happy Friday,

    Here’s some stuff you might like.

    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:

    The sentence

    “[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.

    Were you forwarded this message? Sign up. No sales, no spam, just the weekly(ish) email smart people delete without reading less often than other emails.

    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:
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  • Bend Business Roundup 5-15-20

    By on May 15, 2020

    Happy Friday,

    Here’s some stuff you might like.

    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 publicPhase 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 centerBaseline: Allowed subject to this guidancePhase I: Same.

    If you own/operate an outdoor recreation organization: Baseline: Allowed subject to this guidance.  Phase I: Same.

    If you own a childcare businessBaseline: Allowed subject to this guidancePhase I: Same.

    If you own a restaurant or barBaseline: Take out and delivery only. Phase I: Some dine-in allowed subject to this guidance.

    If you own a salon/barber shop/massage therapy businessBaseline: Nada. Phase I: Allowed subject to this guidance.

    If you own a gymBaseline: My 600 pound life. Phase I: Allowed subject to this guidance.

    If you own a mall or shopping centerBaseline: 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


    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

    Not subscribed to the Bend Business Roundup? Sign up to receive the Bend Business Roundup here. No sales, no spam, just a weekly(ish) email on business, law and politics from Bend, Oregon.

    Have a great weekend!

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