• Bend Business Roundup 5-8-20

    By on May 8, 2020

    Happy Friday,

    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.”

    Here’s some stuff you might like.

    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.

    iTrip Vacations
    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!

    Read more
  • Bend Business Roundup 5-1-20

    By on May 1, 2020

    Happy Friday,

    Here’s some stuff you might like.

    “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

    Mariposa Wig & Post-Mastectomy Boutique – Bend – after cancer boutique – www.mariposaoregon.com – (541)383-8085

    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!

    Read more
  • Bend Business Roundup 4-24-20

    By on April 24, 2020

    Happy Friday,

    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!

    Read more
  • Bend Business Roundup 4-17-20

    By on April 17, 2020

    Happy Friday,

    Here’s some stuff you might like.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Politics: A fact pattern for our political age:

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

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

    3. Trump says he wants to reopen by Easter.

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

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

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

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

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

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

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

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

    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!

    Read more
  • Bend Business Roundup 4-10-20

    By on April 10, 2020

    Happy Friday,

    Here’s some stuff you might like.

    Business: Another 6.6 million Americans filed for unemployment in the past week, on top of around 10 million between the previous two weeks. Ten percent of Americans are now jobless; one in eight Oregon workers have lost their jobs due to COVID-19 and it’s likely this is just the beginning. What started with restaurants and hotels is now hitting medical providersbreweries and everything in between. Local and state governments are seeing revenues plunge as income taxes, hotel taxes and other sources dry up. The pandemic, or more precisely, government’s response to the pandemic, is sucking the life from our economy and thus our society at lightning speed.

    Now, at least one influential model has halved its projected deaths from the virus in less than a week. As I noted last week, Oregon’s numbers are looking better, and even hospitalizations in New York and elsewhere have gone down. It seems that the actual results on the ground are so far (thankfully) leading us away from the more dire predictions of 100,000 U.S. deaths at a minimum. Locally, St. Charles hospital in Bend has nine (9) COVID-19 cases, versus 19 a week ago.  This seems like at least tentatively good news.

    Now, I’m neither an epidemiologist nor an economist, but I did go to law school. What most people don’t know about law school is that it’s really just staying at a Holiday Inn Express for three years, so you [think you are] an expert on everything when you’re done [drummer: rimshot]. So, here goes. With some good news for once, smart people are saying this is not time to let up, because there is still danger ahead. That makes sense, and I don’t know of anyone who’s ready to fire up the mosh pit yet. However, the goal of the stay home order was to “flatten the curve” such that, at the peak of the mess in Oregon, the number of people who need hospital beds, ICU beds and ventilators have access to those things so we are saving all the lives we can save. That is a goal that a big majority of Oregonians probably agree with, even with the attendant economic destruction. But what happens when the influential model referenced above shows that at Oregon’s projected peak on April 22, COVID-19 patients will be using 229 beds out of 2,657 beds available (less than 10%), 47 ICU beds out of 210 ICU beds available (about 22%) and only 40 ventilators needed. We just sent 160 ventilators to New York. By August 4, we’d have 172 total deaths with a max of 5 daily deaths on April 24. Based upon that model, it appears we have significant wiggle room at the peak of the disease.

    Each death is unbearable, but the goal of the policy is not to prevent all deaths because that is impossible short of a vaccine, but to prevent preventable deaths by ensuring medical capacity is available to treat patients at the appropriate level of care – hospitalization, ICU, ventilator. At least one legitimate source says we have plenty of capacity at each level, statewide. So why is Oregon ordering schools closed for the year instead of talking about responsible ways to ease the restrictions enough to relieve just some of the economic suffering hundreds of thousands of Oregonians are enduring, while limiting the easing to stay within the limits of our health care system? I don’t know, but it’s time for policymakers to be looking for reasons to open things up, gradually and carefully, rather than close more things down, at least in the lesser-impacted states like Oregon.

    I don’t know that it’s the right time to begin to open things back up, ever so slightly, but this plan (it’s long but good) seems reasonable. We open things up as we can be pretty sure we have the capacity to treat sick people and also the ability to track and manage infected folks and test everyone who is symptomatic, and we don’t fully open things up until there’s a vaccine That plan seems plausible and at least logically coherent. Our elected leaders should tell us how they will approach the most pressing question of their political careers: how and when we can get the economy, or parts of the economy, working again.

    Let me be clear, I do not think we should sacrifice lives to open the economy. I’m saying that we should be looking closely at gradually re-opening the economy in Oregon to the extent that we can do so without significantly jeopardizing our ability to care effectively for sick people. Governor Brown’s Stay at Home Order provides a possible roadmap. That order closed certain types of retail businesses completely, while requiring other businesses to ensure social distancing is followed in order to stay open. Would it be possible to, say, allow furniture stores or museums or art galleries to re-open, subject to the social distancing rules, without jeopardizing our ability to care for sick people? Or maybe hair salons if everyone wears masks? I don’t know, but it seems that choosing currently closed businesses to re-open based upon a balance of (a) their economic and especially employment impact, and (b) the likelihood of accelerating the spread of the disease, within the acceptable limits is something that should be front and center of the state’s COVID-19 policy right now. If the Governor is not relying upon the IHME model referenced above, fine. I don’t know if it’s good or bad (and plenty of people think it’s bad), but then what is she relying upon? How many ICU beds and ventilators do her advisors think we’ll have at the peak? If there is significant over-capacity according to those models, why aren’t we talking about a strategy to gradually re-open the economy?

    Given the scope of the economic meltdown, our state government has to start talking publicly and immediately about a strategy to get out of this, consistent with public health.

    Law: So, why focus on what Oregon’s doing and not what the federal government is doing? Federalism. Unlike most every other country on the planet, the power of the U.S. federal government to regulate people’s everyday lives is limited, with states and local governments holding far more power in that regard. That’s why different states have different types of stay at home orders, and some have none at all. The ability of the federal government to order people to quarantine (as President Trump suggested he might do to the New York area) is highly questionable constitutionally.

    Federalism has, with notable exceptions such as recalcitrant southern segregation laws, generally served Americans well because we are a really big and really diverse country. So, for example, until recently, Washingtonians were thought to possess the aptitude to pump their own gas while Oregonians were just, well, trying hard but not quite there. More importantly, in reference to COVID-19, the conditions in New York are dramatically different than the conditions in Oregon. The Constitution provides a mechanism for Oregonians to shape policies that fit our crisis, and that would not be advisable in New York or Washington. Increasingly, states are experiencing COVID-19 in dramatically different ways, and I suspect and hope that the states’ approach to re-opening will begin to diverge fairly dramatically soon. That’s probably a good thing.

    Politics: OK, so enough about COVID-19 for now. It’s almost easy to forget that there’s a crowded Republican primary to replace my former boss, Greg Walden, in representing Oregon’s Second Congressional District, which includes everything east of the Cascades and a big chunk of southern Oregon. The primary is important because whoever wins it will probably win the general election and probably serve more or less as long as he (there are no women in the race) wants. There are a number of good choices for Republicans, but I am here to tell you that one of those good choices is not Jimmy Crumpacker. I’m sure Jimmy’s a nice guy, and I had no particular objection to him until I heard this interview on OPB’s Think Out Loud program. It’s devastating for Jimmy. It’s over 17 minutes long and I’d recommend listening to it in full if you enjoy listening to politicians self-immolate, but I know your time is valuable.  Here are the highlights:

    1:12 – Refers to Portland as “our community.” Jimmy claims to have recently moved from Portland to a “ranch” his family owns outside of Bend. I put ranch in quotes because people in eastern Oregon know we don’t have real ranches in Deschutes County. You can legally run for and serve as a member of Congress from a district in which you do not live, so long as you live in the same state as the district, but there are pretty obvious political problems with doing so.

    1:40 – When asked if he’d moved to the “ranch” in order to run for Congress, he said, “It’s hard to say.”

    2:00 – “Just because your physical address has changed doesn’t mean your actual being has changed.” A true, if irrelevant, statement of metaphysics.

    4:00 – When asked why Second Congressional District voters should choose him, he begins, “I studied government at Georgetown University.”

    8:25 – About a month ago, Jimmy said at a candidate forum, about the coronavirus, “I think this is a creation of trying to sell newspapers.” It’s not.

    16:00 – About the “ranch,” Jimmy: “I love it there.” Interviewer: “You say there, you’re not there right now, you’re in Portland right now?” Jimmy (laughing): “No, no, no, I’m in Bend. It’s incredible.” He goes on to refer to the “ranch” as “there” again after being called on it.

    Look, Jimmy has some good policy instincts, including what appear to be deeply held beliefs about the mismanagement of federal land leading to fires and lost jobs in rural Oregon communities. Also, he believes that subsidies are bad and government shouldn’t choose winners or losers. I think he actually believes those things, and that is why he can’t successfully run for Congress in Portland. But it’s pretty clear that wherever Jimmy’s address and/or his being are, he’s a Portlander. Oregon already has three congressional districts that include parts of Portland, and I think Second District Republicans want one of our own for this seat. If Jimmy wants to truly make Central Oregon his home – change it from “there” to “here” – he’ll have a better shot at public office in the future.

    Et cetera:  A limerick:

    Behold the epic adventure of Jeff
    Who woke early this morning and left
    To Fred Meyer, you see,
    In search of bleach and TP
    Hallelujah, shelves weren’t yet bereft!

    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!

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  • Bend Business Roundup 4-3-20

    By on April 3, 2020

    Happy Friday,

    Friends, it’s not snowing in Bend today and can I let you in on a little secret? We’re going to be OK. No, really. This pandemic is really serious and it’s awful and it’s going to be bad for a while yet but we are not helpless and there’s reason to be as optimistic as ever even . . .

    If you or a loved one has COVID-19: I’m really sorry. The good news is that the vast majority of people with COVID-19 do not require hospitalization, and recover at home.Even a large majority of those hospitalized recover. Worldwide, more than 200,000 people have contracted the disease and already recovered. It’s very serious, but it’s far from a death sentence.

    If you’re scared about getting COVID-19: It’s good to be concerned and careful and follow the rules, but according to this ICU doc from New York, who treats really sick COVID-19 patients, you shouldn’t be scared. He says we can avoid 99% of possible infections by becoming “hand nazis.” Being constantly aware of what we’re touching and washing/sanitizing our hands before and after touching things other people are touching, and not touching our face (I’ve touched my face three times while writing the section, so I have work to do).

    If you own a small business that’s been hurt by COVID-19: Which is the same thing as “you own a small business,” because outside of a few niche hand sanitizer distilleries and toilet paper boutiques, we’re all being hurt by COVID-19. You’re already taking action to reduce risk and retain cash and make the best of the current situation, but there is also help for some from the feds. Most prominently in the following forms:

    SBA Disaster Loans: If you own a small business and apply and your application is accepted, you apparently get a $10,000 “loan advance”. which you don’t have to pay back. I don’t know why they call it a “loan advance” if you don’t have to pay it back but check out the terms and talk to your CPA about whether the “loan advance” might be taxable before applying.

    Payroll Protection Act: This program goes into effect today, and allows businesses to borrow up to 2.5 times their average monthly payroll or (up to $10 million) to pay for payroll, rent, utilities, mortgage interest and some other business expenses. If you use the funds for payroll, rent, utilities or mortgage interest in the first eight weeks after you receive the money, the loan isn’t a loan anymore and is instead a grant. Again, make sure you read the rules and talk to a CPA or lawyer before you take the plunge.

    These programs won’t solve everything and are not for everyone, and they will surely be delayed and inefficient and frustrating initially because government. My point is that there is reason for hope and you’re definitely not in this alone. The same ingenuity and work ethic that allowed you to start and operate a small business is going to get you through this.

    If you’ve been laid off: Man, I feel you. When I was growing up in the 80s and 90s my dad worked in the wood products industry and if you know anything about that industry in the Pacific Northwest in that time frame, it was bad. He got laid off multiple times as the industry more or less collapsed. It’s awful. Here’s the thing, you and 10 million others in the past two weeks have already applied for unemployment. If your employer receives Payroll Protection Act support, it may be able to hire you back. Also, as the restrictions are eventually lifted, there will be a lot of pent up demand for the stuff that’s been hurt the most, and we’ll see hiring come back. Hang in there and know that (a) this is not your fault, and (b) this, too, shall pass.

    If you live in Oregon: It looks like social distancing is starting to bend the curve and if we keep it up our hospitals won’t be overrun and we will minimize the number of deaths. We’ve got a long way to go, but this is really good news, some of the best in the country that I’ve seen. It gives hope that things can be relaxed here sooner rather than later.

    If you’re stuck at home, bored and have already watched Tiger King: Become a subject matter expert on the question of whether New York Governor Andrew Cuomo has pierced nipples.

    If you’re wondering if we’re going to come out of this: Remember, America has overcome big obstacles before:

    We probably shouldn’t have even made it as a country to begin with. The American colonies had only 2.5 million people in 1776 when some of the colonial leaders told the most powerful nation on planet Earth that we weren’t interested in being owned by them anymore, and by they way their system of government was corrupt and contrary to the nature of human beings.Talk about audacity. And then General Washington got his tail kicked around the colonies by the Brits until he pulled off one of the most consequential surprise attacks in world history.

    Our first system of government sucked. After we beat the Brits, the new states adopted the Articles of Confederation, which provided inadequate power to the federal government to keep the states from fighting with each other and with it. So, only eight years after the Articles were ratified a bunch of really smart guys under no real authority got together in Philadelphia to completely replace our federal system of government. Imagine fighting a long war for independence, starting a new form of government that you have to sack in less than a decade. That would be pretty dispiriting. But the Constitution turned out to be the best political document ever created by human beings.

    The Brits burned down the White House in 1812. The War of 1812 involved a rematch between the U.S. and the British. Things didn’t go well for us initially, and the Brits occupied Washington, D.C. and burned the still pretty new White House after ransacking it. Think about the national mood following that. By the end of the war (and even a little bit after) we were steamrolling the Brits.

    The Panic of 1837 drove unemployment as high as 25% in some areas. Banks failed, the currency was in question and the deep recession lasted seven years. But the economy recovered and today no one who uses their brain cells for actual useful knowledge even knows about the panic.

    As many as 750,000 Americans died as we kept the country together and ended slavery. The Civil War made much of our own country a battlefield and three-quarter of a million people were killed. At the end, the 13th, 14th and 15th Amendments to the Constitution more fully realized the liberties for all at the heart of that document.

    America fought its First World War followed immediately by the Spanish Flu. Over 100,000 Americans lost their lives fighting a war in Europe involving chemical weapons  and helped to spread the Spanish Flu around the globe. Five hundred million people (2/3 of the world population) got the disease and 675,000 Americans died from it. The U.S. population was only 103 million at the time. This would be like 2.1 million people dying today. America recovered, and what happened next? The Roaring 20s – an unprecedented stretch of economic and cultural advancement.

    We went from the Great Depression straight into World War II. Between 1929 and 1932, global GDP fell by 15% (for context, it fell by 1% in 2008-2009) and U.S. unemployment was over 20% for a sustained period of time. We were still in the depression when in 1941 the Japanese destroyed most of our Pacific fleet battleships and dragged us into World War II. The American people went from the depravations of the Great Depression to the depravations of war, including wide-scale rationing and 405,000 American war dead (and the shameful detention of Japanese-Americans). At the end of these horrific 16 years of depression and war, we had vanquished the Nazis and the Japanese and freed hundreds of millions of people around the world from the reign of authoritarian regimes. The economy at home was booming, and America was suddenly the most powerful nation on Earth.

    Then we went right into the Cold War and won. The destruction of the fascist regimes in Europe brought with it the ascension of another form of authoritarianism, Soviet communism. While the depravations of the Cold War were felt less severely at home (with the important exception of the loss of life in Korea and Vietnam), Americans lived under the daily threat of nuclear holocaust for decades. Eventually, we stood down the Soviets without incinerating the planet, freeing millions more from authoritarianism in Eastern Europe. All this while giving real effect to the Civil War amendments by passing civil rights laws that once again brought us closer to all Americans realizing the liberties promised in the Constitution.

    We recovered from 9/11 and the Great Recession. In the immediate aftermath of the 9/11 attacks, most of us thought that major terrorist attacks on U.S. soil would be the new normal. They weren’t. In the depths of the Great Recession later in the decade, many thought the American dream of home ownership and rising incomes was lost forever. It wasn’t.

    The COVID-19 crisis is called a crisis for good reason. But it’s far from the first crisis we Americans have faced. After each one, we’ve come out of it stronger and better. It can feel like we have no control over our situation, and there is a lot that is not in our control. However, if we put this crisis in historical context, and control those things that we can, for the better, this will all be alright.

    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!

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