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.

Here are my notes from last night’s city council meeting:

Planning Department employee – Last month, Council approved the hiring of an economic development coordinator, to take the place of Ken Trenner, who retired. To the surprise of council, the administration posted the hiring for a different job, with a different pay rate, and different job description. Obviously, from a rule-of-law perspective, council was not going to let that fly. But it also opened up a deeper discussion as to whether we need to fill the economic development director role at all. By a 5-2 vote, Council revoked the authority to hire, and we will leave it to the next council (Costello and D’Antonio voted “no” on revoking the authority). If we can spread those job duties to other employees, then it would be a savings of about $70,000 in annual tax dollars.

Charter amendment for mayor vacancy – Currently, the charter only permits a council member to replace a mayor in mid-term. Matt Riehl proposed expanding the pool of potential fill-in mayor candidates. In considering this issue, it helps to understand that council members did not sign up for a full-time job. When Mayor Kline resigned, only one of us could have filled her shoes (Costello), because we each had full-time commitments. Conceivably, the next time it happens, no one will be able to pause his or her day job to serve the city. So it makes total sense for council to be able to select from non-council members, including former elected officials, current cabinet members, the law director, the finance director, or even a retired executive. Chicken Littles see this as “political cronyism,” which is of course absurd. Their opinions on past charter amendments have been discredited; this will be no different. The amendment received a 6-1 vote of council; and it will appear on the March 17 primary ballot. (Costello voted “no,” stating that it should instead be examined by charter review commission).

Charter amendment regarding charter review commission – Speaking of the commission, we also had a vote on my proposal to clarify whether every proposal by the charter review commission must be submitted by council to the voters– or whether council has discretion to say “no.” Under my proposal, a two-thirds vote of council is required to send any charter review commission proposal to the ballot. By a 7-0 vote, council moved my proposed amendment forward to March 17 primary election. Some people have questioned the timing, as the vote was taken by a lame-duck council. But it was important to take care of this now. If this council deferred the conversation until 2020, then council would be uncertain this summer whether it must pass along the 2020 charter review commission’s proposals to the voters. Plus, I was elected for the full year 2019; why would I check out early?

Last meeting – Some people have asked how I’m feeling about ending my time on council. I’m pretty neutral, to be honest. The residents of Stow hired me to do a job the past decade. I did the job in accordance with my values, and I worked my hardest. It was public service, but it wasn’t charity. There’s no reason the departure of a politician should have any more importance than the retirement of a police officer, firefighter, dispatcher, street department worker, or office staff member. I hope I’m not done in government–and I’ll be on your 2020 ballot in the Summit County Clerk of Courts race. But if this is the end, I’m content with what I accomplished:

• Negotiated a path to fund millions in storm-water improvements
• Negotiated an additional $2.8 million in funding for road repairs in 2019-20, which is sufficient to give Stow good roads across the board
• Supported our fire department, as it rose to an elite Class 1 ISO certification
• Successfully fought to restore our police department, both in personnel and equipment (especially cruisers)
• Successfully opposed efforts to outsource our 911 dispatch services
• Cut elected officials’ pay, and then passed a charter amendment to require voters’ approval before any future raises
• Successfully fought an income tax hike in 2013, and then passed a charter amendment requiring voters’ approval before any future tax increases
• Paid down city debt from $31 million to $14 million
• Ended budget deficits, and balanced every budget since taking leadership
• Successfully fought to implement term limits, defended attacks on term limits, and closed term limits loopholes in the charter
• A 100% success rate on 12 proposed charter amendments, each designed to give power back to the people
• Successfully pressured administrators to end operating deficits at Stow Municipal Court and Fox Den Golf Course
• Preserved more than 450 acres of greenspace in Stow, via rezoning to a constrictive “Conservation” zoning designation

Next meeting – I’ll be proud to attend the swearing-in of a new batch of conservative council members on Thursday evening.