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Alert 4  Public Law Monday Message

Monday, May 4

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 today's email, assembled by attorneys Kevin Butler and Kelsey Smith, you’ll find insights into areas of law we’re watching on your behalf.

Ohio returning to work; what the latest order means for you

On April 30, Ohio joined a growing number of states taking measures to reopen when the state's health director, Dr. Amy Acton, issued her "Stay Safe Ohio" order. With notable exceptions including restaurants, schools and other operations requiring crowds, all employers are entitled to reopen in phases.  Read our Public Law team's digest of the order here, authored by attorney Kelsey Smith. 

Public entities should be cognizant of the following provisions in the order in particular:

  • Educational facilities at all levels remain closed, as do senior centers, recreation centers, recreational tournaments and leagues, public swimming pools, playgrounds and day camps. 
  • All businesses in general office environments must "strongly encourage as many employees as possible to work from home" but have discretion to require them to come to the workplace. Employees coming into work must wear facial coverings, with limited exceptions, and all employers must follow workplace social distancing and sanitation guidelines in the order. 
  • The order keeps in place the prior order prohibiting "mass gatherings" in auditoriums, large conference rooms, meeting halls or other confined indoor spaces. However, the order replaces the 50-person mass-gathering threshold with a new 10-person maximum. The order appears to cover meetings of administrative and legislative bodies such as city councils, boards of trustees, and public commissions and committees, all of which may continue to deliberate remotely in order to conduct public business.  
  • An exemption to the 10-person threshold exists for "First Amendment protected speech, including petition or referendum circulators and any activity by the Media, which includes newspapers, television, radio and other media services." No further clarity was provided as to what "First Amended protected speech" includes, and so public officials would be wise to consult with their legal counsel before determining whether to hold, for instance, in-person meetings again which more than 10 people would attend. Our Public Law attorneys are well suited to assist you with this analysis.

​Feel free to reach out to any of our Public Law attorneys for assistance with the latest statewide order and questions regarding implementing the same at your business or businesses within your communities.

Fed to include smaller cities, counties in short-term note purchases

Amid the ongoing negotiations in Washington over whether Congress would extend as much as $1 trillion in direct budget-propping aid to cities and counties nationwide, last week the Federal Reserve announced it will expand the $500 billion coronavirus relief lending program it had announced in early April to smaller cities and counties desperately needing cash. When the CARES Act-backed program begins, the Federal Reserve will now offer to purchase short-term debt from cities of more than 250,000 residents (down from 500,000) and counties of more than 500,000 residents (down from 2 million) through a special purpose vehicle it establishes. States remain eligible issuers as well.

Under the Federal Reserve’s latest term sheet, eligible governments may sell short-term notes (maturing no more than three years after issuance, up from two years) to “help manage the cash flow” due to COVID-19 problems, including income tax reductions and delays, sales tax reductions, and other obligations requiring the payment of principal and interest. However, only about 260 of the nation’s more than 22,500 states, counties, cities and villages – just over 1% – will be counted as eligible participants. While those participants may also use the proceeds of the Federal Reserve’s purchase to “purchase similar notes issued by, or otherwise to assist, political subdivisions and other governmental entities” within their boundaries, it remains to be seen whether smaller political subdivisions will benefit from the program.

Our CARES Act and Public Law teams are at the vanguard of assisting public, educational, nonprofit and for-profit clients in advocating and applying for state and federal relief dollars. We’ll continue to update you in these messages as things in Washington unfold.

Two cases we're watching: A bridal shop remains closed, and a local court lays down some sidewalk law

We wrote in an earlier edition of our Monday Message on Hartman v. Acton, a federal lawsuit filed in April by a disgruntled bridal shop owner, claiming the Ohio health director violated the Columbus retailer’s due process rights by not providing a hearing on the statewide order closing many retailers as nonessential. The bridal shop owner argued that a review hearing was required to protect the “due process rights to be afforded to these businessmen and women who have had their hard work and risk of capital snatched from them by unthinking, uncaring arbitrary bureaucrats,” as her lawyer colorfully put it.

Score one for the uncaring bureaucrats (ahem), as the federal judge overseeing the case declined to issue a restraining order and reopen the bridal shop prior to holding a fuller hearing on the merits in mid-May. But lest any of the good readers of this message be similarly branded, we continue to advise that it’s always wise to review your codes and policies to ensure they contain adequate due process provisions, particularly when they directly affect your own constituents' individual property rights. We have the expertise needed for that kind of careful review.

Another case of note: Last week, the Eighth District Court of Appeals held in Donnelly v. Berea that a pedestrian running in the City of Berea could not look to Baldwin Wallace University to compensate her for her injuries after she tripped and fell on a broken stretch of city-owned sidewalk adjoining the campus. The plaintiff sued both the city and the university, ultimately dismissing the city before summary judgment proceedings began. Baldwin Wallace then won on summary judgment, and the plaintiff took an appeal.

We thought the appellate panel did an admirable job providing a thorough primer on an area of the law that often confuses both property owners and pedestrians – that is, when liability attaches to neighboring private property owners' failure to maintain sidewalks lying within a municipality’s right of way. Because the analysis often intersects with local code, we point to it here and encourage a read.

Psst: get your primary results here

Nobody noticed you were in your pajamas when Ohio held a most historic election last week. In case you missed the news, here are handy links to the COVID-delayed primary election results from across northeast Ohio:

Cuyahoga County | Geauga County | Lake County | Lorain County | Medina County | Portage County | Summit County

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!

©2020 McDonald Hopkins LLC All Rights Reserved
This Publication is designed to provide current information for our clients, friends and their advisors regarding important legal developments. The foregoing discussion is general information rather than specific legal advice. Because it is necessary to apply legal principles to specific facts, always consult your legal advisor before using this discussion as a basis for a specific action.

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