Updates to Historic Preservation Ordinances Required by State Law

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Dan Lawler

From our Summer 2021 e-newsletter

In 2017, the Oregon Department of Land Conservation and Development (DLCD) amended the administrative rules that govern local historic resource programs and ordinances (OAR 660-023-0200). Afterwards, the State Historic Preservation Office (SHPO) developed a model historic preservation ordinance to provide local governments with an example of local regulations that comply with DLCD’s amended administrative rules. Together, the updated administrative rules and model ordinance identify elements of historic preservation programs that localities must adopt the next time they amend their historic preservation ordinances.

To help our clients that operate historic preservation programs, this article summarizes and explains significant items that must be included in historic preservation ordinances to ensure compliance with state law and to qualify for funding and technical assistance as a Certified Local Government. However, this article does not contain an exhaustive list of every requirement that local governments must incorporate into their historic preservation ordinances. Feel free to contact our office if your entity desires assistance updating its historic preservation ordinance.

Definitions

SHPO’s model ordinance identifies a handful of definitions that localities must incorporate into their historic preservation ordinances. These definitions are intended to promote consistency between federal, state, and local historic preservation programs, but may require localities to rename some of their existing definitions. For example, the commonly-used term “historic landmark” is now referred to by the State as “historic resource.” While SHPO may allow localities to retain some of their existing terminology, adopting the State’s definitions for historic preservation programs would help to avoid confusion between local, state, and federal requirements. For the complete list of definitions required under state law, see Section 7 of SHPO’s model ordinance.

Inventorying, Evaluating, and Designating Historic Resources

OAR 660-023-0200(4), (5), and (6) establish procedures that localities must use to inventory, evaluate, and designate historic resources. The following bullets summarize the State’s updated inventory, evaluation, and designation requirements that must be incorporated into local historic preservation ordinances.

• Local historic resource inventories and resource lists must be maintained as public records, except for archaeological sites.
• Historic Preservation Commissions must evaluate historic resources in accordance with the State’s “Guidelines for Historic Resource Surveys in Oregon, 2010” document or SHPO updates to the guidelines.
• Historic Preservation Commissions must evaluate historic resources in accordance with the following categories: Eligible/Significant, Eligible/Contributing, Non-Contributing, or Not in Period.
• Objections from property owners must not prevent properties from being inventoried, evaluated, or designated to the historic resource inventory.
• Commission designations to the historic resource list must be made as land-use actions at public meetings.

See Sections 10 and 11 of SHPO’s model ordinance for more information on requirements related to inventorying, evaluating, and designating historic resources.

Historic Preservation Commissions

Sections 8 and 9 of SHPO’s model ordinance identify requirements for Historic Preservation Commissions that localities must include in their historic preservation ordinances. These requirements fall into two general categories: 1) Organization of Historic Preservation Commissions; and 2) Duties of Historic Preservation Commissions. The following bullets summarize the requirements for each category.

• Organization of Historic Preservation Commissions:

o Commission members must have a demonstrated interest in and knowledge of historic preservation.
o Localities must make all reasonable efforts to appoint individuals with experience in preservation, architecture, archaeology, community history, building trades, real estate, or related fields.
o Localities may establish their own residency requirements and term lengths for Commission members.

• Duties of Historic Preservation Commissions:

o Commissions must meet at least four times per year.
o Commissions must use the procedures of local historic preservation ordinances to review and act upon applications for designation, evaluation, preservation, rehabilitation, reconstruction, alteration, relocation, or demolition of historic resources.
o Commissions must provide written comments to SHPO upon request regarding the eligibility of historic resources for listing in the National Register of Historic Places.

Miscellaneous Requirements

While the paragraphs above outline larger categories of changes required by the state, the updated administrative rules and model ordinance contain various additional requirements that localities must incorporate into their historic preservation ordinances. The following bullets outline these requirements.

• Additional Protections for National Register Resources: Commissions must consider the list of factors in Section 13(d)(2) of the SHPO model ordinance at a public hearing when determining whether to apply additional protections to National Register Resources.

• Demolition or Relocation of National Register Resources: Section 14 of SHPO’s model ordinance establishes a definition of “demolition” that must be used for National Register Resources and specifies factors that Historic Preservation Commissions must consider when reviewing applications to demolish or relocate National Register Resources.

• Removal from the Resource List: Section 16(d) of SHPO’s model ordinance establishes specific procedures and factors that Historic Preservation Commissions must use to consider applications to remove significant historic resources from the resource list.

• Archaeological Resources: Local historic preservation ordinances must include language stating that archaeological resources must be protected and preserved in accordance with federal, state, and local regulations and that no person may excavate, injure, destroy, or alter archaeological sites without a permit. See Section 15 of SHPO’s model ordinance for more information on requirements related to archaeological resources.

MANDATORY VACCINES FOR FIREFIGHTERS, EMTs, VOLUNTEERS Labor Relations Implications

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Diana Moffat

From our Summer 2021 e-newsletter

On August 25, 2021, the Governor of Oregon issued a Temporary Administrative Order (PH 38-2021) which provides for “Vaccination Requirements to Control COVID-19 for Healthcare Providers and Healthcare Staff.” This Temporary Order is effective from 08/25/2021 through 01/31/2022, unless modified or extended.

What we know as of August 27, 2021:

We know that this Order includes Firefighters, EMTs and Volunteers who are included as “Healthcare Providers and Healthcare Staff” under the Order since they interact in a “Healthcare setting providing direct patient or resident care or who have the potential for direct or indirect exposure to patients, residents, or infectious materials, and includes but is not limited to any individual licensed by a health regulatory board as that is defined in ORS 676.160.” ORS 676.160 includes the Oregon Health Authority as a Health Professional Regulatory Board under section 18. We also know that Healthcare settings specifically include “vehicles or temporary sites where health care is delivered.”

We know that the new Temporary Order specifically replaces the previous Temporary Order from 08/05/2021 which had allowed for weekly testing as an alternative to being vaccinated. The new Order does not provide for the alternative of testing. The new Order does, however, specifically provide for a medical or religious exception to the vaccine. The Oregon Health Authority (OHA) has now provided forms for both exceptions. These forms would be provided to the employer for processing. A copy of the new Temporary Order, as well as the vaccine exception forms can be found here: https://covidvaccine.oregon.gov

We know that, on or before October 18, 2021, qualifying firefighters, EMTs and volunteers must provide their employer, with either:

• Proof of vaccination showing they are fully vaccinated (likely to include the 14- day period following the final dose administration);or
• Documentation of a medical or religious exception.

“A medical exception must be corroborated by a document signed by a medical provider, who is not the individual seeking the exception, certifying that the individual has a physical or mental impairment that limits the individual’s ability to receive a COVID-19 vaccination based on a specified medical diagnosis, and that specifies whether the impairment is temporary in nature or permanent.”

“A religious exception must be corroborated by a document, on a form prescribed by the Oregon Health Authority, signed by the individual stating that the individual is requesting an exception from the COVID-19 vaccination requirement on the basis of a sincerely held religious belief and including a statement describing the way in which the vaccination requirement conflicts with the religious observance, practice, or belief of the individual.”

If an employee presents a qualifying medical or religious exception, the employer likely must then decide if the granting of the exception is required under the Americans with Disabilities Act (ADA) or under Title VII of the Civil Rights Act, both of which entail an analysis of reasonable accommodations and undue hardships to the employer. Employers should consult with their HR department over such analysis.

What we don’t know as of August 27, 2021:

Is it a reasonable accommodation to allow a qualifying medical or religious exception employee to remain in the workplace, to have continued contact with other employees and the public? What if you provide for weekly testing of those individuals?

If an employee elects to not be vaccinated and does not have a qualifying medical or religious exception, and therefore resigns, will they be entitled to receive unemployment insurance coverage based on the concept of “good cause” resignation? Generally speaking, people who quit their jobs aren’t eligible for jobless benefits unless they leave for “good cause,” meaning they faced an extraordinary issue that forced them to leave work.

If that same employee is terminated from employment, will they be entitled to receive unemployment insurance coverage? People who are fired often are eligible for benefits, unless they are fired because of misconduct. Is a refusal to be vaccinated, assuming that there is no bona fide medical or religious exception, misconduct?

“This is a rapidly evolving issue, and we are monitoring federal and state law and court cases closely,” the employment department said in a statement. “Each person’s situation is different, and eligibility for UI benefits is determined on a case-by-case basis.”

Do you have a Duty to Bargain with the Union?

A public employer has an obligation to bargain with the Union over the “impacts” of a change to working conditions if those changes impact a mandatory subject of bargaining. The employer, however, is prohibited from bargaining with the union to NOT follow State law. In addition, an employer cannot bargain with the Union to waive an individual’s right to applications of laws such as the ADA. So, what are the mandatory impacts that you may be required to bargain? Most employers already have in place policies and procedures for how employees are processed if they test positive for COVID and for whether testing and/or vaccinations are done on paid leave time. None of those policies are implicated by this new Temporary Order. However, any Demand to Bargain from the Union should be analyzed with your legal counsel.

The Bottom Line:

After October 18, 2021:

• Your qualifying employee may not work, assist, observe, or volunteer in a healthcare setting unless they are fully vaccinated or have provided documentation of a medical or religious exception.
• You, as the employer, may not employ, contract with, or accept the volunteer services of employees or volunteers who are working, assisting, observing or volunteering at a healthcare setting unless they are fully vaccinated against COVID-19 or have a documented medical or religious exception.

It is recommended that you consult with your labor legal counsel and your HR department regarding these important decisions. Additional information from the OHA is expected in the coming days.

Time to Dust Off Those Working Rules

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Christy Monson

From our Spring 2021 e-newsletter

If your Board or Council hasn’t already done so, now is the time to find those Council or Board Rules (sometimes called Working Rules of Order), dust them off, and re-read them. Often edits are called for, both to clarify your governance processes and to customize them for your governing body.

Ideally, your rules should be no longer than six or so pages. They should clearly and simply describe how your governing body has decided to work together and the general process and protocol for your meetings. More importantly, a thoughtful discussion about your rules will set the tone for the rest of the year—and can also serve as a good faith promise among elected officials about how they will treat each other, staff, and the public.

The best process for reviewing your rules is to first have your Manager and/or your attorney review them and suggest edits. The rules should then be circulated to your elected officials, placed on an agenda for discussion, possible amendment and adoption. (If your staff and your Board President or Mayor have done the advance work, this agenda item should take approximately 30-60 minutes.)

A successful discussion would include the entire governing body agreeing not only to follow your newly-adopted rules, but to also hold each other accountable for acting in a collaborative, respectful manner—especially when times get tough. In this conversation, your most important goal should be to secure each member’s buy-in and public commitment about how you will treat each other, how you will treat your staff, and what your Board or Council meetings will ideally look and sound like.

Below I provide you with some key concepts to discuss and include in your Rules:

• Who has the authority to create your agenda? How would someone else get an item placed on an agenda? (Author’s note: no blindsiding. All items should be clearly listed on a future agenda so that the public has a general idea of the topic to be discussed and the vote, if any, to be taken.)

• Will your Board or Council use Work Sessions where no votes are taken? Why or why not?

• Will you allow your fellow Board members to abstain from votes where they don’t have a conflict of interest? What is the effect on other Board members if someone frequently abstains? What is the effect on your community? (Author’s opinion: abstentions—unless they are in response to a conflict of interest—are generally bad for your community and for your governing body as a whole.)

• How should conflicts of interest be handled? How will you apply Oregon ethics law when handling conflicts?

• How closely will you follow Roberts Rules of Order? Do you wish to follow a simplified version of Robert’s Rules? (Author’s hint: simple is better.)

• What are your options if an elected official repeatedly misbehaves at meetings or breaks your rules?

• Who has the authority to appoint people to committees and to vacant Board or Council positions? Does your Charter already provide some guidance on this matter?

• Who has the authority to discuss personnel issues at a public meeting? What happens if a member of the public discusses personnel issues at the meeting?

• How and when will you take public comment? When during the meeting will you take it? Will the public be limited to three minutes of non-repetitive comments? Why or why not? What happens if a member of the public makes comments that are inappropriate or outside of your governing body’s authority to address? (Author’s note: remember that public comment does not mean a Council discussion. If the comment is important or requires action, you can always ask staff to address the issue later or schedule the issue on a future agenda.)

• What are your options to increase elected official participation and to avoid one or two members from dominating the conversation?

• How much staff time is a single member allowed to use per month? Why or why not?

• Who has the authority to contact your legal counsel?

• Who has authority to speak to the press on behalf of the governing body? Do you want to voluntarily agree to not to speak to the press about governing body matters individually? Why or why not?

• Do you wish to designate a Board member to handle routine personnel matters involving your Manager or Administrator, such as vacation/sick leave requests and monitoring? What would happen if you don’t do this?

• What will you do if a public meeting turns disrespectful? Does your President or Mayor have additional authority in such cases? Anyone else?

Your legal counsel should be able to provide you with some sample rules and a process for evaluating and adopting them. Good luck and thank you for your service to your community. And remember: the time to decide on how you will handle difficulties is before the difficulties arise!

Understanding OR-OSHA COVID-19 Temporary Rules

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(Cover Your Face – But Keep Your Eyes and Ears Open)

 

Carrie Connelly

From our Spring 2021 e-newsletter

It’s been over a year that we’ve stayed COVID compliant – and while some of us might be ready to relax, we’re not yet out of the woods. Oregon Occupational Safety and Health Administration’s (OR-OSHA) Temporary COVID-19 Rules (OAR 437-001-0744) went into effect on November 16, 2020, and will remain in effect until May 4, 2021, unless earlier revised or repealed. A slightly modified “permanent rule” is in the works, with hearings to be held in the upcoming weeks. One proposed change omits the following deadlines that have passed.

Oregon OSHA is required to adopt OAR 437-001-0744 as a permanent rule. However, OSHA notes that, as its rule addresses the COVID-19 pandemic, it will repeal the rule once no longer necessary. That determination will be made in consultation with OSHA, OHA and other stakeholders.

Workplaces that provide emergency first responder services are deemed at “exceptional risk,” thus more and different requirements apply than in other workplaces. The rules and appendices are lengthy, thus beyond the scope of this article. Instead, the following described changes must be made to your public offices, if you are not yet in compliance.

1. Distance six feet, whether indoors or outdoors. Emergency medical service first responders, firefighters, and non-emergency medical transports are subject to more specific guidance that overrides this general rule, in the event of conflict. See, OAR 437-001-0744, Appendix A-17. For example, spacing requirements may not need to be followed on emergency response apparatus.

2. Continue to wear face coverings or personal protective equipment (PPE). This measure applies on all calls and in station break rooms, shared toilet facilities, or other common areas; but may be relaxed in living areas (if any), among residents. Emergency response vehicle drivers may also adjust or remove a mask that impedes vision or distracts from safe vehicle operation.

3. Clean and sanitize spaces occupied for less than 12 hours a day every 24 hours. Spaces occupied for more than 12 hours a day require cleaning every 8 hours. Emergency service providers must also: (1) develop procedures for routine cleaning and disinfection, as appropriate for healthcare settings; and (2) adhere to CDC guidelines for disinfection and sterilization in healthcare facilities.

4. Permanently post OR-OSHA’s “COVID-19 Hazards Poster” in a conspicuous location.

5. Conduct a COVID-19 Risk Assessment. Such action was required no later than December 7, 2020. Emergency service providers must record summary responses to thirteen COVID-19 exposure risk assessment questions, in writing.

6. Ventilate facilities with outside air circulated through existing heating ventilation and air conditioning systems. Such action was required no later than January 6, 2021, and by June 1, 2021, entities with more than 10 employees and an existing HVAC system must keep on file a written certification that the system is operating in accordance with OSHA’s rule. Thereafter, staff must regularly clean and maintain station air filters and minimize indoor air recirculation on a quarterly basis.

7. Establish and implement an Infection Control Plan. Such action was required by December 7, 2020. Plan controls include, but are not limited to, ventilation, staggered shifts, redesigned workplaces for physical distancing, reduced shared services and tools, limits on the number of employees (or other individuals) in workplaces, and provision of PPE. Station Plans must identify a knowledgeable person to administer the Plan, and be re-evaluated frequently to reflect needed changes, based on employee feedback and control assessments.

8. Inform and train employees on identified topics. Such action was required no later than December 21, 2020. Trainings should invite feedback, and must cover physical distancing, face coverings/PPE, sanitation, signs and symptoms of COVID-19, the entity’s infection notification process, medical removal procedures, basic risk factors, and modes of transmitting COVID-19. Training materials should be posted soon on OR-OSHA’s website.

9. Notify affected employees (within 24 hours) that had work-related contact with an individual who tested positive for COVID-19.

10. Cooperate with mandated COVID-19 testing and vaccinations that a local public health agency or OHA deem “necessary.”

11. Remove workers due to COVID-19, if recommended as a result of contact tracing identification.

If your entity has yet to comply with the above requirements, it’s not too late (even though some applicable timelines have passed.) Seek assistance when questions arise, and be prepared to obtain required resources. Coordinate with your legal team, as necessary.