To our friends, clients and colleagues in local and regional government, welcome to our latest Monday Message from the Public Law Group at McDonald Hopkins. In these periodic emails, you’ll find insights into areas of law we’re watching on your behalf.
New federal aid package leaves out local government: What’s next?
On the heels of the sweeping CARES Act signed last month, Congress has now passed the $484 billion Paycheck Protection Program and Health Care Enhancement Act, known as CARES Act II. You can read how CARES Act II aids small businesses with an expansion of the enormously popular Paycheck Protection Program in our overview here.
Like its predecessor, CARES Act II gives no direct relief to local government entities despite the advocacy of organizations like the Ohio Municipal League, the Ohio Mayors Alliance and the U.S. Conference of Mayors. (The Paycheck Protection Program, for instance, only applies to for-profit employers and certain non-profits but not to government employers.) Any benefit to local taxing entities under the new law would be secondary, as long as the PPP helps to stabilize income tax revenue.
Expect the debate over smaller-government bailouts to continue in Congress beginning in early May. In separate calls with local officials, Ohio’s U.S. senators have signaled a willingness to create additional relief for local government, and the House leadership has made it a priority. Meanwhile, we’ll continue to report all stimulus initiatives in this forum and are prepared to help public entities with everything from FEMA disaster assistance to advocacy at the state level – and, if the hardest decisions on reductions and layoffs become necessary, we can also provide guidance and advocacy in labor and civil service matters.
Ethics Commission warns against disclosure of executive session content
A week ago, the Ohio Ethics Commission quietly issued an advisory opinion that touches on whether public officials violate state ethics law when they publicly reveal what they’ve previously discussed in executive session. The long and short of it: Communications had in executive session that are clearly meant to be confidential, whether by statute or context, must remain confidential, absent explicit permission to the contrary, after the executive session ends. With slip-ups amounting to first-degree misdemeanors, it’s guidance every public official in Ohio should be paying attention to, writes Kevin Butler, a longtime law director and member of our Public Law team.
Illinois creates COVID-19 workers' comp presumption
A week after we pointed you to Margaret O’Bryon’s helpful guidance on what to do when Ohio public employees file coronavirus-related workers’ comp claims, something caught our eye from two states to the west. As Margaret writes here, an Illinois commission on workers’ compensation approved a new emergency rule that creates a rebuttable presumption in favor of granting benefits to any essential employees, including first responders, who are diagnosed with COVID-19. This means Illinois joins Michigan as midwestern states liberalizing workers’ compensation benefits for those front-line employees diagnosed with the virus. Thus far Ohio’s interpretation is less expansive than those of its neighbors, but we watch closely for changes to the local landscape, and we remain ready to provide workers’ comp consultation and advocacy throughout this crisis.
Raised in a barn? If it’s a wine glass at a wedding, state vintner law protects it from township zoning
Finally, we toast the folks at Forever Blueberry Barn, L.L.C., a Medina County business that planted grapevines, built a barn, invited paying wedding parties, and convinced the Ohio Supreme Court last week to hold unanimously that state law shields it from township residential zoning restrictions.
At issue was whether the proprietors of Blueberry Barn in Litchfield Township could avoid the township’s residential zoning restriction by operating a wedding barn on their property, at which the guests were required to purchase wine made from grapes grown onsite. The Supreme Court held that the event-venue use was allowed under a state law that prevents townships from prohibiting the use of buildings and structures at which wine is made and sold from grapes grown on the property. Even if just 4% of the barn is actually used for winemaking, so long as its primary use is to facilitate the sale of its wine, the court held, local zoning restrictions cannot be enforced. (Read a summary of the case here.)
With decades of experience on the front lines of zoning issues, we actively participate in land use matters of all kinds, from ordinance drafting to board and commission advocacy to litigation. Each one of these cases reminds us that zoning codes must always be updated and reviewed against developments in state law and litigation. Which is to say, as the vintners at Blueberry Farm teach us, good counsel in the short term can prevent hangovers later.
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If you have questions or need assistance, please feel free to contact me or any member of the McDonald Hopkins Public Law team. Have a great week!