Jul
23

My take on proposed charter amendments

The charter review commission meets every 5 years. This year, they met through Zoom, and they have come up with 9 proposed charter amendments.

Normally, they ask former council members to opine. Not this time. That’s OK. I can reach more people through the Internet anyhow. Let’s get into the merits of these proposals:

  1. Restricting Manner of Amending Charter. If approved, council can no longer send charter amendments before the voters. This means that the only way we can change our charter is to have a citizen’s petition with 10 percent of the voters from the last gubernatorial election. What an awful idea, especially considering all of the great taxpayer-friendly charter amendments that we have passed in the past 10 years. Beyond that, it’s unconstitutional. The Ohio Constitution mandates certain forms of charter amendments. “Amendments to any charter framed and adopted as herein provided may be submitted to the electors of a municipality by a two-thirds vote of the legislative authority thereof, and upon petitions signed by ten per centum of the electors of the municipality setting forth any such proposed amendment, shall be submitted by such legislative authority.” Ohio Constitution, Article XVIII, Section 9. Conclusion: Reject, as unconstitutional.
  2. Filling Law Director Vacancy. Rather than appointing a temporary law director, this would allow an appointee to fill the rest of a term. This is an acceptable question for the voters. Conclusion: Allow voters to decide.
  3. Repealing Provision that Requires Voter Consent before Outsourcing Fire, Police or Dispatch. This is a question that was asked and answered in November 2019. And voters wanted to have a say in the matter, approving the charter amendment by a 68.3% vote. Council should reject this one without much thought. Conclusion: Reject, asked and answered.
  4. Filling Finance Director Vacancy. Rather than appointing a temporary finance director, this would allow an appointee to fill the rest of a term. This is an acceptable question for the voters. Conclusion: Allow voters to decide.
  5. Weakening of term limits. We have heard over and over again: “If you amend term limits language, then it resets the term limits.” Well, the people clearly don’t want to reset term limits, even if it helps to clarify a point about whether to include your time served filling a vacancy (it should, by the way). Voters have overwhelmingly supported term limits, have overwhelmingly supported closing every loophole, and have rejected every attempt to remove or weaken term limits. For this reason, and because the impact of the amendment is not clear from the wording of the amendment, I would not pass this along to the ballot. Conclusion: Reject, asked and answered & language will confuse voters.
  6. Filling Mayor Vacancy. Rather than appointing a temporary mayor, this would allow an appointee to fill the rest of a term. I don’t personally think that’s a good idea from the perspective of responsive government, but it’s an acceptable question for the voters. Conclusion: Allow voters to decide.
  7. Four-Year Terms for Council. This is a favorite topic for every charter review commission since the days of Joshua Stow (slight exaggeration). I personally think it’s a terrible idea. More importantly, voters have rejected it in the not-so-distant past. Conclusion: Reject, asked and answered.
  8. Location of Council Meetings. This would allow council to meet outside of council chambers. The first meeting of the year wouldn’t necessarily be at 8 p.m. These are acceptable charter cleanup items, and they are appropriate to place before the voters. Conclusion: Allow voters to decide.
  9. Limits on Special Meetings. This would allow special meetings outside of council chambers, and it would remove the limit of six special meetings per year. These are acceptable charter cleanup items, and they are appropriate to place before the voters. Conclusion: Allow voters to decide.

All in all, I’d submit 5 of the proposals to the voters, and I’d reject the rest. However, I wouldn’t argue with rejecting all 9, as none of them will have a meaningful, positive impact on Stow residents.

By the way … If anyone argues that Council has no authority to reject Charter Review’s proposals, then I would point out that in the 2020 Primary Election, 83.4% of Stow voters disagreed with you. Issue 2 passed by a HUGE margin. It makes 100% clear that council’s submission of charter review’s proposals to the voters is wholly optional. That language is constitutional and effective. Period.

Here’s what the Stow Sentry reported about Issue 2:

Issue 2 on the ballot is a proposed charter amendment to section 20.03 about submission of charter amendments to electors from the charter review committee.

Upon approval by two-thirds of council, council shall submit to the electors all such proposed amendments to this charter in accordance, in each instance, with the provisions of the Constitution of Ohio.

Currently the city charter says “Council shall submit to the electors all such proposed amendments to this charter in accordance, in each instance, with the provisions of the Constitution of Ohio.”

The city charter is the city’s constitution and it can be amended by a vote of the residents. The Charter Review Commission, which is appointed every five years by the mayor and will convene this year, reviews the charter and suggests changes to it, which are put on the ballot for voters to approve.

Instead of “all” proposed amendments being placed on the ballot automatically, Issue 2 would make changes so that the Charter Review Commission amendments would need to be approved by two-thirds of council before being placed on the ballot for voters to approve.

Council said that in the past city law directors gave different interpretations of the charter and this amendment would make it clear that only amendments approved by council would go on the ballot.

Mar
22

Gov. DeWine’s Stay-at-Home order

On Sunday at 2 p.m., Governor DeWine issued a stay-at-home order (the “Order”), to take effect 11:59 p.m. Monday, continuing through April 6. Here is the order: Stay at Home Order – 3-22-20

In General

Although the scope is very broad, the exceptions are equally expansive. The plan has support from the Ohio Chamber of Commerce (larger companies) and the National Federation of Independent Business (small- and mid-size companies).

The upshot of the order is: Any businesses must close their facilities if they are not deemed “Essential Businesses and Operations.”

The question you need to ask: Is my company an “Essential Business and Operation”?

  • If no, you are required to cease all business operations, except Minimum Basic Operations (defined below).
  • If yes,
    • you are “encouraged” to remain open, and
    • you must add social-distancing precautions.

What is an Essential Business and Operation?

If you fit under this definition, you are not only permitted to stay open, but the governor has “encouraged” you to stay open.

CISA List – The most obvious list of essential businesses are those deemed critical by the U.S. Department of Homeland Security. Ohio’s law (unlike Pennsylvania’s) respects the federal definition, by exempting “essential critical infrastructure workers” (see complete list on pages 13-23 of the Order). The federal definition includes Department of Defense contractors, healthcare sector, transportation sector, communications sector, emergency services and many others. Read more on this topic here.

Other Essential Businesses – California issued a stay-at-home order last week. It exempted the federal CISA definition, and stopped there. Ohio’s order includes a much-expanded list of Essential Businesses and Operations, such as: stores that sell groceries or medicine, agriculture and food/beverage production, charitable/social services, religious entities, media, gas stations and auto repair, banks/insurance institutions, hardware/supply stores, building trades, mail/shipping services, education (provided there is 6 feet of social distancing), laundry services, restaurants (off-premises consumption only), businesses that sell work-from-home supplies, transportation services (airlines, Uber, etc.), home-based care, residential facilities and shelters for disabled people, professional services (law, accounting, real estate), labor unions, hotels/motels, and funeral homes.

Home-based work – Any home-based businesses may continue, and employees are not prohibited in working from home.

What are the Social Distancing Requirements?

If you are staying open, it is not business as usual. Rather, businesses must comply with Ohio’s new Social Distancing Requirements. These are:

  1. Designate 6-foot distances by tape, signage, etc. for employees and customers in lines to stay apart,
  2. Make hand sanitizer readily available for employees and customers,
  3. Establish separate operating hours for elderly and customers vulnerable to COVID-19, and
  4. Post online whether the facility is open and how to conduct business by phone or remotely.

What are Minimum Basic Operations?

A non-essential business may nonetheless take actions to protect the value of inventory and equipment, ensure security, process payroll and benefits, and enabling employees to work from home (“Minimum Basic Operations”). Even in undertaking Minimum Basic Operations, the company must observe Social Distancing Requirements.

Violations; Remedies

The Ohio Department of Health has jurisdiction to enforce the Order, with potential second-degree misdemeanor charges. Of potential greater importance, if an employee or customer is infected as a proximate result of a violation, a business risks claims of negligence per se. The monetary damages flowing from a tortious COVID-19 infection could be very significant (medical, pain and suffering, wrongful death).

NOTE: This post will be updated periodically. Please check back or contact your business attorney for further information.

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