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THE ASTORIAN • TuESdAy, MAy 18, 2021
OPINION
editor@dailyastorian.com
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GUEST COLUMN
Rule is ‘freaking out’ residents
ho writes the laws in Ore-
gon? The Legislature, the
governor or state agencies?
Many Oregonians appear “freaked
out” by what they see as the de facto
answer: state employees, not legislators.
Under the Oregon Constitution, the
sole authority to make law rests with
the 90-member Legislature. State agen-
cies then write adminis-
trative rules to carry out
the law. Some legisla-
tors, particularly Repub-
licans, have long con-
tended that such rules
often exceed the Legis-
lature’s intent.
DICK
And in this case,
HUGHES
the agency regulations
implement Gov. Kate
Brown’s pandemic-related executive
orders.
What Republicans say has people
freaking out is the Oregon Occupational
Safety and Health Administration’s new
permanent rule requiring face masks
and other COVID-19 protocols at work-
places. More than 70,000 people signed
a petition against the rule, which took
effect May 4.
This probably boils down to whether
people trust their state government and
the Brown administration. The lawyerly
language in the rule certainly does pro-
vide room for worry.
“It’s a confusing process for people
back home, and the word ‘permanent’
really is scary,” said state Rep. Daniel
Bonham, R-The Dalles.
Oregon OHSA had adopted a tem-
porary rule last year to enforce Brown’s
executive orders. However, a tempo-
rary rule is limited to 180 days. Thus, the
agency went through its regular process
for adopting a permanent rule whose
provisions “remain in effect until revised
or repealed.”
When will that be? No one knows.
Rep. Bill Post, R-Keizer, said, the
word “permanent” makes it sound as if
the Oregon OSHA rule will live forever,
and people are “freaking out.”
The rule promises of itself, “Ore-
gon OSHA will repeal the rule when it
is no longer necessary to address that
pandemic.”
It goes on to state, “Because it is not
possible to assign a specific time for that
decision,” the agency will consult with
specific advisory committees, the Ore-
gon Health Authority and stakeholders
“as circumstances change to determine
when all or part of the rule can be appro-
priately repealed.” The first discussions
are to take place by July and then every
two months.
Yet science could move faster than
state bureaucracy. As an example, the
federal Centers for Disease Control and
Prevention announced Thursday that
fully vaccinated individuals don’t need
to wear a mask or physically distance in
most circumstances – unless required by
state, local or tribal laws.
Late Thursday afternoon, Brown
announced that she was modifying some
W
Hailey Hoffman/The Astorian
Oregon has a permanent rule on masks and other protocols for businesses in response to the coronavirus pandemic.
EMPLOyERS WHO dELIBERATELy,
SERIOuSLy FLOuTEd REGuLATIONS —
MuLTIPLE TIMES IN SOME CASES — HAVE
BEEN FINEd $8,900 TO $126,749. FEW OF SuCH
FINES HAVE BEEN PAId. MOST ARE BEING
CONTESTEd By THE EMPLOyERS.
state requirements in light of the CDC
recommendations. House Republican
Leader Christine Drazan, of Canby, also
wrote to Brown, asking that the changes
be incorporated into the Oregon OSHA
rule.
Drazan and other Republican legis-
lators had tried to have Oregon OSHA
officials testify about the rule. But
that is outside the Legislature’s pur-
view, according to legislative lawyers
and Rep. Paul Holvey, D-Eugene, who
chairs the House Business and Labor
Committee.
Agency rules are a recurring contro-
versy. Some lawmakers and lobbyists,
particularly ones representing business
and industry, want the Legislature to
have a say over agency rules. Legislative
lawyers say the law allows legislators to
consider only whether an agency has the
authority to make a rule and whether that
rule complies with the constitution.
The Oregon OSHA permanent rule
met both requirements, the lawyers said.
Even if they had found severe prob-
lems, the lone recourse would be going
to court.
“Nothing the Legislature does in this
process could invalidate the rule or stop
it from becoming permanent,” Marisa
James, a senior deputy legislative coun-
sel, told the committee.
She said it would be a violation of
the separation of powers — among
the legislative, executive and judicial
branches of government — for the Leg-
islature to interfere with administrative
rule-making.
“Each branch has a job to do, and
they don’t interfere with the job of the
other branches. The Legislature makes
the law, and the agencies implement
those laws through rule-making,” James
said. “It’s good for the Legislature to
have information on what the agency has
done to see if the Legislature needs to
amend the law or change the rule-mak-
ing authority that’s in the law. But that’s
not intended to have the Legislature
delay or prevent the agency from engag-
ing in rule-making.”
Holvey said that was why he did not
ask Oregon OSHA officials to participate
in the committee discussion, much to the
dismay of Republicans.
“OSHA not being here today, to me
shows the public they are too big, they
are too powerful, to be concerned with
the hundreds of thousands of Oregonians
that are absolutely dismayed with this
rule-making process,” said Rep. Shelly
Boshart Davis, R-Albany.
Where do the fines go? Oregon
OSHA has received more than 23,000
workplace complaints since the pan-
demic arrived and has issued more than
150 citations to employers.
Employers who deliberately, seri-
ously flouted regulations — multiple
times in some cases — have been fined
$8,900 to $126,749. Few of such fines
have been paid. Most are being con-
tested by the employers.
The fines issued for nonwillful but
serious violations have ranged from
$100 to $4,200. About three-quarters of
those fines have been paid.
A reader wondered what happens
to the fines when they are collected. I
asked agency representative Aaron Cor-
vin. Under state law, the money goes
into the Premium Assessment Operat-
ing Account, which pays for workers’
compensation-related operations, includ-
ing Oregon OSHA. Corvin said the total
penalties typically make up less than
2.5% of the fund revenue.
dick Hughes has been covering the
Oregon political scene since 1976.
LETTERS TO THE EDITOR
Inspiration
I
wrote the following to inspire our sales
crew, and I thought in these difficult times
it might offer some inspiration for others —
especially for young people just graduating:
This is going to be a great day. For I am
going to picture in my mind the positive
outcome of a predetermined plan.
And, I am going to be so committed to a
positive purpose, that it will propel me with
power and propensity to the very peak of
my potential.
I was born to succeed. I will succeed. I
am succeeding. Today is my moment, and
now is my story.
By the grace of God.
JIM BERNARD
Warrenton
Clear manipulation
read a letter to the editor remarking on
the quality of the stewardship of the
current Sunset Empire Park and Recre-
ation District Board. I must say I was sur-
prised to see someone repeat the dog and
pony show the park district’s Melissa Ous-
ley was touting regarding a survey show-
ing support for the purchase of Broadway
Middle School being 65%.
I am in receipt of an email we received
from a request regarding all correspon-
dence related to the SEPRD board and the
purchase of the former middle school.
This is an email on Sept. 1, 2020, from
Celeste Bodner, a board member, to Ous-
ley on how to word the survey so respon-
I
dents would answer the questions in the
positive: “Question style. I suggested
using the matrix-style/multi-choice sys-
tem because I think it’s more likely to end
up with a higher percentage/result for ‘X%
are supportive (somewhat or highly) of
additional space or facilities improvement
for child care’ ...”
“Q9 ... I created this because a positive
response could yield a quote such as ‘75%
of all respondents indicate it is import-
ant to keep the BMS property as a public-
ly-owned asset.’”
I believe this is a clear manipulation
of the survey to get the results SEPRD
wanted and not what was intended by
the people who responded to the survey.
Transparency for SEPRD created a graph
showing a majority of the respondents
writing letters were not in favor of the pur-
chase. This was a true result.
STEPHEN MORRISON
Seaside
What is Warrenton?
W
hat is Warrenton, really? Warrenton
is everywhere, and it is nowhere, and
today it is what Clatsop County was.
The county is virtually unrecognizable,
except for the stumps. Tourism, and stumps;
that’s what the county is all about. This
county has been hollowed out by tourism,
and the void filled with visitors who never
leave. Tourism is the ascendant extractive
industry. When there is nothing left to sell,
we sell the vapors.
The Warrenton city fathers (a gratu-
itous paternal trope) are not blind. They are
swimming against the tide, but they realize
nostalgia has value. Up with nostalgia. They
are very aware of the commotion that tour-
ism produces.
There are always more costly quali-
ty-of-life issues for the localities which have
embraced the mob, than rewards for the
locals who have been saddled with them. I
write to celebrate a municipality that recog-
nizes this.
Downtown Warrenton is still relatively
quiet. Keep it that way. Protect your core;
protect your fine old landmarks, those trees
lining S. Main Avenue, from the high school
to the post office.
Protect your affordable housing inven-
tory, before you become dependent on a
room tax to provide more revenue to man-
age the crowds. Remember, by law, bed
taxes must be shared with the tourism
industry. Bed taxes make you complicit in
our misery.
Clamp down on vacation rental schemes
before they take root. If you don’t take les-
sons from the mistakes of every other city
in “Clapsot” County, you will be doomed to
repeat them.
GARY DURHEIM
Seaside