To our friends, clients and colleagues in local and regional government, higher education and the nonprofit sector, welcome to our latest Monday Message from the Public Law Group at McDonald Hopkins. In today's email, assembled by attorneys Teresa Metcalf Beasley, Kelsey Smith and Kevin Butler, you’ll find insights into areas of law we’re watching on your behalf.

In today’s edition:

• Spotlight on economic development tools: Tax Increment Financing
• With massive infrastructure bill, U.S. House continues push for spending amid crisis
• Ohio Supreme Court hands down two public records cases
• If you missed our higher education liquidity webinar, replay it here
• Hearing more fireworks? If Ohio House bill clears Senate, it may be just the beginning

Spotlight on economic development tools: Tax increment financing

We continue our focus today on special tools that provide creative and cost-effective solutions for economic development projects and preserve clients’ bottom lines, this time by featuring tax increment financing. Tax increment financing is an economic development tool available to various counties, municipalities and townships as set forth in statute. Most commonly, TIFs are implemented to help finance public infrastructure improvements, including public roads and highways, water and sewer lines, remediation, land acquisition, demolition, the provision of gas, electric, and communications service facilities, and the enhancement of public waterways.  Certain TIFs  may also be used to provide financial assistance for project improvements, and in certain circumstances TIF funding may be used to fund residential improvements.   

In general, a TIF works by locking in the taxable worth of real property at the value it holds at the time the authorizing legislation was approved. Payments made from the increased assessed value of any improvement to the real property beyond the locked in amount are allocated to a separate fund to finance certain improvements as defined within the TIF legislation. TIF legislation may be created by a township, municipality or county and must (a) designate the parcel(s) to be exempted from taxation, (b) declare that the improvements within the specified area serve a public purpose, (c) delineate the public infrastructure improvements to be made that will directly benefit the parcel(s), and (d) specify the equivalent funds to be created for redirected monies.  Each TIF has its own requirements which must be strictly adhered to during the legislative process, including notice to and approval of the local school districts in certain circumstances. 

Our McDonald Hopkins Public Law team has experience assisting local political jurisdictions in creating TIF legislation and securing TIF funding. For further guidance related to the creation of a TIF, including additional statutory requirements and approvals, please reach out to one of our Public Law attorneys.

With massive infrastructure bill, U.S. House continues push for spending amid crisis

Last week the U.S. House unveiled a new $1.5 trillion infrastructure spending bill, the Moving Forward Act, which continues the lower chamber’s efforts to pump cash into states and local communities.  The act would allocate billions of dollars to America’s roads, bridges, renewable energy, transit systems, schools and housing, and would continue the nationwide push to fill gaps in access to reliable broadband service, a problem laid bare by COVID-related distance learning and teleworking obligations.  Read an overview of the Moving Forward Act here – and specifically on how the act augments public finance possibilities for infrastructure projects here – from our team members Kelsey Smith, Teresa Metcalf Beasley and Mike Wise.

Ohio Supreme Court weighs in on two public records matters

While we wait for news from Columbus on the outcome of negotiations over two similar tort measures that would expand coronavirus-related immunity for public, private, healthcare, educational and nonprofit entities, we note that two cases handed down this month by the Ohio Supreme Court resolve some narrow questions on public records matters and thus may be of some interest to public entities in local government and education.

In State ex rel. Frank v. Ohio State Univ., which was handed down last week, the Supreme Court rejected a records requester’s demand for the release of certain records when the requester failed to show that his request had been denied by the university. The requester had sought records related to student discipline. Rather than respond with records or an outright denial, the university records specialist referred the requester to another office at Ohio State that handled disciplinary records and worked under the relevant federal privacy laws at play. Rejecting the requester’s argument that his request was denied, the Supreme Court in Frank held that the Public Records Act “does not require institutions like OSU to provide records through a specific public-records office,” and that when requested records are sensitive and subject to careful review, it is permissible to refer a requester to another public office “that will have the proper expertise for how to lawfully disclose the requested records and how to apply the relevant state and federal regulations.” 

While the Frank case supports the notion that a public entity can send a requester to an office better equipped to handle the nuances of a particular request, the second case, State ex rel. Mun. Constr. Equip. Operators’ Labor Council v. Cleveland, resolves the narrow question, What is it to email a copy of a record to a requester? In the Cleveland case, the requester was an employee union seeking to have records related to civil service matters sent by email. Cleveland responded by providing a link to the requested records, which had been uploaded to a web-based portal and were available for downloading by the requester. 

Here, the union complained that by forcing it to click on a link provided by the city, log into the portal and then download the produced records, Cleveland failed to satisfy its statutory obligation under the Public Records Act to transmit the requested records in the manner requested by the union. The Supreme Court rejected the union’s claim, opining plainly that “there is little difference between clicking on a hyperlink in an e-mail and clicking on an attachment to an e-mail,” and that “[t]o hold otherwise would establish an overly technical and unnecessarily narrow meaning of ‘transmit’ in the Public Records Act.” We highlight this case particularly as more and more public entities use these types of web portals to organize their response to records requests. In any event, score two victories this month for public offices under the Records Act.

If you missed our higher education liquidity webinar, replay it here

We thank our friends at the global financial advisory firm Conway MacKenzie for joining us last week to discuss how higher education officials nationwide must respond to the financial fallout of the coronavirus. Our webinar, Navigating Troubled Waters For Higher Education: Liquidity Management & Bank Covenants, is now archived and can be viewed here if you missed it.  Expect more from us in this area in the coming weeks and months. 

Hearing more fireworks?  If Ohio House bill clears Senate, it may be just the beginning

As we head into this holiday weekend, a reminder that H.B. 253 skyrocketed (ahem) through the Ohio House and is now being considered by the Senate. If it passes, the bill would permit all Ohioans to possess and discharge consumer-grade fireworks on their property at any time, subject to some limited exceptions – for example, if a person is under the influence of alcohol, which we hope doesn’t describe your next-door neighbor last night at 2 a.m. Have hope, light sleepers: The bill would also allow local governments to enforce noise ordinances or limit and even ban consumer fireworks use. We can't stop your neighbor, but we’ll keep watch for you on the bill’s progress.

If you have questions or need assistance, please feel free to contact any member of the McDonald Hopkins Public Law team.

Have a great week and happy Independence Day!

Teresa Metcalf Beasley
Chair, Public Law