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Bricker & Eckler Advocacy Efforts in 2007
On Behalf of the Ohio Manufacturers' Association
The 2007 year concluded in success as the Ohio Manufacturers’ Association continued to carry out its mission. As General Counsel, Bricker & Eckler LLP has worked in partnership with the OMA to ensure a competitive business climate in Ohio for manufacturers. With an enduring commitment, Bricker & Eckler strives to thoroughly identify issues, prevent problems and resolve challenges that are unique to the manufacturing industry.
By focusing on the specific concerns that impact Ohio manufacturers’ ability to compete, together we were able to help to
shape public policy in the areas of energy, employment, workers’ compensation, amicus activity, tax reform and environmental law.
The OMA continues to be the recognized voice of Ohio’s manufacturers, and Bricker & Eckler is honored to work with it to achieve victories that benefit manufacturers statewide.
Energy Issues
The availability of dependable, reasonably priced energy resources is vital to Ohio manufacturers. Indeed, energy issues have a great impact on all of Ohio’s economy. During 2007, Bricker & Eckler continued to provide legal counsel, legislative expertise and political advice to the OMA Energy Resources Committee.
Electric legislation, specifically Senate Bill 221
(S.B. 221), has been the primary focus of the OMA for nearly a year. Introduced in the Senate in September 2007 by Senator
Bob Schuler (R-Cincinnati), S.B. 221 seeks to revise several policies: state energy policy to address
electric service price regulation; new bonding authority for advanced energy projects; advanced (including renewable)
energy portfolio standards; energy efficiency standards; and greenhouse gas
emission reporting and carbon control planning requirements. On October 31, 2007, S.B. 221 passed unanimously in the Senate.
OnNovember 1, 2007, it was moved to the House and referred to the Public Utilities Committee. Bricker & Eckler has
provided technical and legal guidance to assist the OMA Energy Resources Committee (“the Committee”) with S.B. 221 and related bills that have been developed.
To date, the OMA, through the Ohio Coalition for Affordable Power, has successfully provided a counterpoint to those parochial interests that seek to derail the Strickland Administration's very sensible plan for ensuring reasonably priced and reliable electric service in Ohio. The OMA continues to be a leader in the efforts to prevent the disaster that full market pricing of electricity would bring to Ohio's economy.
In addition to our extensive work on energy regulation, Bricker & Eckler has advocated before the Public Utilities Commission of Ohio (“PUCO”) on several important cases. Cleveland Electric Illuminating Company, Ohio Edison Company and Toledo Edison Company (collectively known as “FirstEnergy”) filed an application to increase its electric distribution rates. The Committee was granted intervention in the FirstEnergy rate proceeding, and the Committee has been kept apprised of the ongoing case activity.
The Committee also actively participated in the FirstEnergy competitive bid process proceeding.
FirstEnergy sought PUCO’s authority to procure its supply for the provision of its Standard Service Offer electric generation service.
This service would be provided to retail electric customers who do not purchase their electric generation service from a
competitive retail electric service supplier beginning January 1, 2009. OMA was granted intervention and filed reply comments in support of the PUCO Staff comments recommending that PUCO reject FirstEnergy’s application. To date, PUCO has not issued an order in this proceeding.
The Committee actively participated in the Columbia Gas of Ohio stakeholder process, which led to a
settlement that extended the current level of service for Columbia general transportation service customers through 2010.
The settlement included a realignment of Columbia’s gas supply portfolio, the settlement of past gas cost recovery
proceedings, and the filing of a rate case application in February 2008. The settlement also calls for this stakeholder
process to continue into the future as the costs of banking and balancing services are examined.
Employment Law
Following the enactment of Ohio’s Smoking Law and the passage of the Ohio Minimum Wage Amendment in 2006, Bricker & Eckler continued to monitor the developments under both and advise the OMA and its members on these issues.
In 2007, the Ohio Civil Rights Commission (“OCRC”) proposed several significant changes to the Ohio Administrative Code Sections governing pregnancy, including a proposed requirement that all businesses subject to R.C. 4112 provide pregnant employees up to 12 weeks of job-protected leave, whether or not that amount of leave was medically necessary. Bricker & Eckler drafted correspondence on behalf of the OMA opposing the proposed regulation and was prepared to testify on OMA’s behalf before the Joint Committee on Agency Rule Review (“JCARR”). JCARR sent the proposal back to the OCRC without taking testimony. Bricker & Eckler continues to monitor this issue.
Bricker & Eckler has also continued to monitor the Healthy Families Act proposal being pushed by the Service Employees International Union (“SEIU”). The Firm provided feedback to the OMA and briefed the Board on the key issues involved.
Finally, Bricker & Eckler provided the OMA with approximately 30 client bulletins and two webinar sessions to keep manufacturers frequently updated on employment law developments.
Workers’ Compensation
A healthy workers' compensation system ensures that manufacturers have the means to locate and keep their operations in Ohio. Most importantly in 2007, the legislature, through the workers' compensation budget bill (House Bill 100), eliminated the workers' compensation Oversight Commission and replaced it with a Board of Directors consisting of among others, investment and insurance experts. Bricker & Eckler partner John Beavers met with administrative and legislative leaders and was instrumental in guiding the structuring of the Board of Directors and restoring their management functions to the BWC administration.
On behalf of the OMA, Bricker & Eckler also participated in the filing of an amicus curiae
brief in support of the employer's position in State ex rel. Gross v. Indus. Comm. 2007 WL 2818871 (Ohio 2007),
a case where the employer terminated an employee who was injured as a result of his violation of work rules. In this case, the employer argued that the employee should not receive temporary total disability benefits because he had voluntarily abandoned his job. In 2006, a unanimous Supreme Court agreed with the employer. However, in September 2007, the Court responded to a motion for reconsideration in a 5-2 decision, which reversed its decision and permitted the injured worker to receive benefits.
Defending Public Policy Action in the Courts
The OMA has been consistently active in their public policy participation through amicus activity in cases that affect the interests of manufacturers. These amicus curiae efforts provide an opportunity to present valuable information on the legal arguments in a particular case with the intent to influence the court’s decision in favor of manufacturers. With respect to the OMA, Bricker & Eckler monitored the following cases in 2007 and advocated on behalf of the manufacturing-related issues.
Amicus Activity
Groch v. General Motors Corporation
On Feburary 21, 2008, the Ohio Supreme Court issued a significant decision -- upholding,
on their face, the statute of repose applicable to product liability actions enacted in Senate Bill 80 and the workers’
compensation subrogation statutes enacted in Senate Bill 227, (Groch v. General Motors Corporation, Slip. Opinion No. 2008-Ohio-546). The Court also held that, as applied to the facts before it, the statute of repose was unconstitutionally retroactive due to the unreasonably short period of time (34 days) between the date of Petitioners’ injury and the effective date of the new statute of repose.
For more information, see a case summary on the Bricker & Eckler website.
Arbino v. Johnson & Johnson
On December 27, 2007, in a 5-2 decision, the Ohio Supreme Court upheld the statutory limitations on
noneconomic and punitive damages enacted in Senate Bill 80, effective April 7, 2005, in Arbino v. Johnson & Johnson, Slip.
Op. No. 2007-Ohio-6948.
For more information, see a case summary on the Bricker & Eckler website.
Re: Special Docket
The issue in this case was whether a decision by the trial court to apply
previous Ohio law, instead of House Bill 292's (H.B. 292) medical criteria provisions (which became effective in
September 2004), is a final appealable order. When H.B. 292 was enacted, the Ohio General Assembly
contemplated this issue and specifically amended R.C. 2505.02 (governing final appealable orders) to permit immediate appeals.
The trial court's order was not entered in a specific case. Instead, it was intended to apply to tens of thousands of
asbestos cases pending in Cuyahoga County at the time H.B. 292 became effective.
On October 11, 2007, the Ohio Supreme Court issued its decision and held
that trial court findings regarding the constitutionality of retroactive application of the prima facie filing requirements for
personal-injury asbestos claims, found in R.C. 2307.92, are provisional remedies that constitute final, appealable orders when
certain requirements are met.
For more information, see a case summary on the Bricker & Eckler website.
Ackison v. Anchor Packing Co.
A motion to certify a conflict was filed with the Fourth District Court of Appeals. The conflict case is
Wilson v. AC & S, Inc., 12th Dist. No. CA2006-03-056, 2006-Ohio-6701. In February 2007, the Fourth District
certified a conflict with the Wilson decision. In May, the Ohio Supreme Court
agreed with the Fourth District and certified the following issue: "Can Ohio Revised Code Sections
2307.91 and 2307.93 be applied in cases already pending on September 2, 2004?”
The Ohio Supreme Court heard oral arguments in November and this case awaits decision.
For more information, see case information on the Bricker & Eckler website.
Senate Bill 117 -- Veto Challenge
After months of debate, the Ohio Supreme Court issued a contentious and long-awaited ruling in
State ex rel. Ohio Gen. Assembly v. Brunner, 2007-Ohio-3780. The case involves the duties of a Secretary of State when an unsigned bill is filed by the Governor with the Secretary of State’s Office.
On August 1, 2007, in a 5-2 decision, the Court found that Governor Strickland improperly vetoed Senate Bill 117, product liability tort reform,. because the 10-day window in which the bill could have been vetoed expired on January 6, before Mr. Strickland was sworn in as Governor. The Court held that S.B. 117 was effective 90 days after former Governor Taft filed it with the Secretary of State on January 5, 2007.
On August 13, 2007, the Secretary of State filed a Motion for Reconsideration or Stay of the Ohio Supreme Court's decision. This motion was filed as a result of a letter the Secretary of State received from a number of constituent groups (including the Equal Justice Foundation, Coalition on Homelessness and Housing in Ohio, etc.) asking whether S.B. 117 was still subject to a referendum, or whether the 90-day referendum period had in fact expired.
On August 31, 2007, the Ohio Supreme Court granted the Secretary of State's Motion for Reconsideration or Stay.
The Court reversed its earlier decision and held that S.B. 117 became effective on August 1, 2007 (instead of 90 days after January 5, 2007). The Court also held that the 90-day referendum period began to run on August 1, 2007.
On September 6, 2007 opponents of S.B. 117 began the referendum process by submitting an initial petition signed by 1,000 electors. The Secretary of State and Attorney General gave the requisite approval for the referendum effort to continue.
In order to qualify for the November 2008 ballot, the referendum petition required 6 percent of the total vote cast for the Office of the Governor at the last gubernatorial election (241,366 signatures), with a minimum number of signatures from at last 44 of Ohio’s 88 counties. The signatures needed to be filed by October 30, 2007.
On October 30, 2007, proponents of the S.B. 117 referendum failed to file enough signatures to put the referendum before Ohio voters. As a result, S.B. 117 became effective on October 31, 2007.
For more information, see case information on the Bricker & Eckler website.
Additional Court Activity
Sinnott v. Aqua-Chem, Inc.
On December 13, 2006, the Ohio Supreme Court accepted a discretionary appeal from the
Eighth District Court of Appeals in Sinnott v. Aqua-Chem, Inc. At issue in Sinnott was whether the trial court's
decision finding that the Plaintiff made a prima facie showing under R.C. 23907.92 is a final appealable order.
The trial court applied H.B. 292 and determined that the Plaintiff had presented sufficient evidence to satisfy "the intent of the new statute."
The Defendants appealed the trial court's determination. The Eighth District Court of Appeals sua sponte
dismissed the appeal as "premature" and summarily rejected the subsequent motion for reconsideration.
Defendants appealed the decision to the Ohio Supreme Court.
On October 25, 2007, the Ohio Supreme Court reversed the
Eighth District Court of Appeals and in a 5-2 decision held that an order finding that a Plaintiff in an
asbestos action has made a prima facie showing is a final appealable order.
For more information, see case information on the Bricker & Eckler website.
Tax Reform
Over the past year, Bricker & Eckler has continually monitored the Department of Taxation, the courts and the General Assembly to advance and protect the Ohio Manufacturer Association’s interests in tax issues, increase competitiveness and encourage economic growth in Ohio. Playing upon the good will generated by the OMA’s early and vociferous support of tax reform, the OMA continues to be a significant player in tax policy in Ohio.
The OMA also continues to fight to preserve the gains to manufacturers resulting from tax reform. To that end, the OMA successfully led the fight first to end the temporary exclusion to the commercial activity tax (“CAT”) afforded to the petroleum industry, and then to prevent the dedication of CAT funds arising from the petroleum industry to highway purposes in the transportation budget of Am. Sub. House Bill 67. When efforts began to expand the CAT credit for net operating loss deductions, Bricker & Eckler worked with the OMA to successfully lobby legislators to reduce the provision to a general statement of support for such action at some unspecified future time.
The OMA also provided thoughtful testimony from Mr. David Johnson in support of the principled repeal of Ohio’s estate tax. The OMA also provided positive input behind the scenes to legislation that would subject pipeline companies, currently taxed as public utilities, to the CAT.
Additionally, Bricker & Eckler monitored closely two cases making their way through the court system.
Those cases, Ohio Grocers’ Assn. v. Wilkins, Franklin Comm. P. No. 06CVH02-2278 (August 17, 2007) and
Mosser Construction Co. v. Toledo, Lucas App. No. L-07-1060, 2007-Ohio-4910, both address the nature of the CAT. The character of the CAT as a business activity tax or a sales tax-transaction type of tax has significant implications for the broad-based, low-rate attributes of the tax and its success as a tool for economic growth and development in Ohio.
Environmental Issues
Throughout 2007, Bricker & Eckler worked closely with the Ohio Environmental Protection Agency (“Ohio EPA”) to maintain a healthy environment for the state and to monitor the legislative process to ensure fairness for the manufacturing industry.
Bricker & Eckler’s advocacy efforts focused primarily on the Ohio EPA’s attempt to expand the reach of its current air pollution control program through new regulations, like the Air Toxics Rule and the Air Permit-to-Install and Operate Program. Through the efforts of OMA, which were supported by Bricker & Eckler and others, the Ohio EPA’s list of regulated air toxic compounds was reduced from 639 compounds, as introduced, to 303 compounds. This air toxics rule has been appealed to the Environmental Review Appeals Commission (“ERAC”) by several environmental advocacy groups and the Ohio Academy of Trial Lawyers.
On July 3, 2007, the Ohio EPA released revised draft rules to implement a combined air permit-to-install (“PTI”) and permit-to-operate (“PTO”) program, which was approved in concept by former Director Jones in February 2004. Rather than requiring a source to apply for a PTI, which is issued with both installation and operating terms, and then apply for a PTO within a year of construction, the new program would require one application for both a PTI and PTO and both installation and operation requirements would be issued under one document. Bricker & Eckler assisted the OMA in submitting comments with other business groups on the proposed rules in 2007. This rule package was withdrawn from the Joint Committee on Agency Rule Review (“JCARR”) in early 2008 because of the opposition from the business community, including the OMA. Through this process, Bricker & Eckler has provided guidance and advice regarding the impact of these rules to the manufacturing community.
In 2007, Ohio also joined the Climate Registry, a national effort involving approximately 41 states that will track, measure and report greenhouse gas (“GHG”) emissions. The framework of the Registry was released in 2007, but details of the program are still being formulated. While participation in this effort is currently “voluntary”, the Ohio EPA will more than likely exert subtle pressure on the manufacturing community to participate. Bricker & Eckler has advised the OMA on the potential ramifications of this program and will continue to monitor this program as it develops.
Finally, Bricker & Eckler has assisted the OMA in evaluating the Great Lakes Water Compact (Senate Bill 78), which covers the entire Great Lakes region. This program essentially will regulate the withdrawal and use of water within the Great Lakes region and its basin area, which is quite broad in scope. The Compact potentially allows other states to regulate water use in the State of Ohio. Bricker & Eckler will continue to monitor the development and implementing regulations of this Compact and advocate the concerns of the OMA and its manufacturing members.
Summary
With the contributions of hard work, time and effort, the Ohio Manufacturer’s Association successfully concluded the 2007 year. As a team, Bricker & Eckler and the OMA collectively continue to establish a voice for manufacturers by improving Ohio’s business climate and easing the burden on the industry through public policy efforts. We look forward to our ongoing partnership with the OMA and the implementation of these significant achievements.
Kurt Tunnell is General Counsel to the Ohio Manufacturers' Association, and
works extensively with the business and manufacturing industry helping to improve the business climate in Ohio.
He can be reached at 614.227.8837 or ktunnell@bricker.com.
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