Reprinted from November 2006 ohioconstructionlaw.com

Highlights: In our April 2006 issue, we alerted readers to Ohio’s latest effort to combat terrorism: the State’s new requirements for anyone wishing to obtain a government contract or contracts that might, in the aggregate, total more than $100,000. Government entities must provide declaration forms to all contractors, must refuse to contract with anyone who fills them out improperly, and must retain copies of the completed forms, showing that all contractors on the job swear they have not provided support to any organization on the Terrorist Exclusion List. The new law has generated many questions from public owners and contractors alike and has already led to an Ohio Supreme Court decision. This article updates readers on what the Ohio Terrorism Act entails and answers some of the most Frequently Asked Questions.

The First Seven Months

Before April of this year, what public entity had ever heard of a Declaration of Material Assistance/Nonassistance to a Terrorist Organization, or “DMA,” for short? The DMA form has taken some getting used to for the government and its contractors alike. Now, only seven months since the new requirement took effect, we have already seen the first lawsuit emerge from the Ohio Supreme Court over the issue.

In that case, State ex rel. Triplett v. Ross, 2006-Ohio-4705, the Ohio Supreme Court explained, at ¶ 2, the origin of the DMA:

On December 14, 2005, the General Assembly enacted the Ohio Patriot Act . . . to implement the provisions of the "Uniting and Strengthening America by Providing Appropriate Tools Required to Interrupt and Obstruct Terrorism (USA Patriot Act) Act of 2001." . . . One of the purposes of the act, according to its title, is "to establish requirements for state and local compliance with federal homeland security authorities and laws pertaining to terrorism and homeland security." . . . Another purpose of the Ohio Patriot Act is "to limit licensing, employing, and doing business with persons who have provided material assistance to an organization on the United States Department of State Terrorist Exclusion List." Governor Taft signed the Ohio Patriot Act on January 11, 2006, and the act became effective on April 14, 2006.

New statutes can be challenging to follow. Both the governmental entities that ask for completed DMAs and those that must complete them search to find an agreed procedure that comports with what the statute requires. That procedure works until it is challenged, and the judiciary then weighs in on whether we were right or wrong. Because the courts have not spoken much on the issue, we are still at the stage where we are making good faith efforts to comply with the code as written—as opposed to written and interpreted by the courts.

Some Questions and Answers

Below then, I have assembled some of the frequently asked questions, the “FAQs,” regarding the DMA form. The answers are the result of various agency interpretations, the Ohio Supreme Court’s Triplett opinion, and common sense. Whether many of the answers are ultimately correct will not be decided until they are challenged in court. Enjoy.

Q: Where can I find the DMA and TEL forms?

A:   On the Ohio Homeland Security website.

Q: When did this new law take effect?

A:   April 14, 2006.

Q: What types of governmental entities require DMAs?

A:   The law requires “the state, instrumentalities of the state, and political subdivisions of the state” to get completed DMAs before entering into certain transactions (i.e. contracts, employment, and issuing certain licenses). Essentially, all forms of state and local government—including school boards—are subject to the requirement, according to R.C. § 2909.33.

Q: What is the relationship between the DMA and the TEL?

A:   Each of the six questions on the DMA form asks about a company’s or individual’s membership in or assistance to any of the companies on the U.S. Department of State Terrorist Exclusion List, known as the “TEL,” for short. Anyone who is a member of any of the listed organizations must answer “yes” to question one, for instance. Anyone who has solicited funds or “other things of value” for any of the organizations must answer “yes” to question three.

Q: What happens if I answer any of the questions “yes”?

A:   Then you won’t get the contract or license you are hoping to get. You also won’t get the contract or license if you leave any answer blank, as such a non-answer will be interpreted as a “yes.”

Q: How do I know if I have ever provided “material support or resources” to any organization on the TEL, as question five asks?

A:   You must review the entire list of TEL organizations, available on the same website listed above. The list is updated frequently. In fact, since the law became effective in April of this year, the list has grown from 48 organizations to 133 organizations. This means you should check the list every time you fill out a DMA form.

Q: What kinds of organizations are on the list?

A:   The usual suspects are there, such as the Palestine Liberation Front and the Islamic Jihad Group. But the organizations are geographically diverse, including the Communist Party of the Philippines, the Continuity Irish Republican Army, and the Japanese Red Army. Several groups sound quite benign—the People Against Gangsterism and Drugs, for instance, or the Global Relief Foundation. Some appeal to the sweet tooth: the Al-Hamati Sweets Bakeries and the Al-Nur Honey Center. No one generalization seems to apply to all of the organizations on the list.

Q: What is the $100,000 threshold and how is it tracked?

A:   Ohio Revised Code §2909.33(C) requires completed DMAs when anyone “conducts any business with or receives funding in an aggregate amount greater than one hundred thousand dollars annually from the state, any instrumentality of the state, and any political subdivision of the state.”

So, if Contractor Company wants to enter into a $150,000 contract with a city, it must first complete the DMA. But that is the easy scenario. What if Contractor Company has a $60,000 contract with Columbus and then enters into a $60,000 contract with Cincinnati?

When we look to the language of the statute for help, we can see that the $100,000 annual trigger is counted for work from “the state, any instrumentality of the state, and any political subdivision of the state.” That would seem to say that if all of Contractor’s contracts with governmental entities in Ohio add up to more than $100,000 a year, Contractor must complete the DMA (for every entity).

The fact is that there is currently no system in place for tracking the contracts awarded all over the state. As a result, the requirement has been interpreted to apply to the individual governmental entity. So if Contractor Company signs a contract with Columbus for more than $100,000 in a year, then Columbus will collect the DMA without regard to what Contractor Company is doing elsewhere. It will be interesting to see how the law develops on this issue—stay tuned.

Q: Does someone have to sign the DMA?

A:   Yes. The DMA must be signed by an authorized company representative.

Q: If for some reason I am denied a contract because of my answers (or lack of answers) on the DMA, can I appeal that decision?

A:   Yes. You can appeal the decision to the Department of Public Safety. The Department must review the appeal within 30 days. If your appeal is successful, the Director may allow you to enter into the contract.

Q: What was the Triplett case about?

A:   A court-appointed attorney, Triplett, protested when the Bellefontaine Municipal Court Clerk requested that all attorneys seeking appointments to represent indigent defendants complete a DMA form. Triplett asked the Ohio Supreme Court to issue a writ of prohibition, an order prohibiting the Municipal Court, the clerk, or Judge Ross from removing his name from the list of attorneys eligible for appointment because he didn’t turn in the form, as well as prohibiting the Court from asking attorneys to turn in the form in order to get appointments. The Supreme Court refused his first request because the Court had not removed his name from the list. In fact, it had appointed him to a case even after he refused to turn in the form. But the Court granted the second part of his request because the Court was not authorized to require the forms from attorneys, like Triplett, who made less than $100,000 in a given year from the state. The Court also clarified that merely representing a client who was a terrorist organization or a member of one did not constitute providing “material support or resources” for that organization.

Q: What did the Triplett case not decide?

A:   Lots of things, including what would happen if Triplett or one of the other court-appointed attorneys got overloaded with indigent clients and suddenly, late in the calendar year, passed the $100,000 threshold in state payments.

Q: Does the DMA really stop terrorism?

A:   Love it or hate it, the DMA is here to stay. When the Supreme Court of Ohio considered this question in Triplett, here is how it answered:

We cannot address these contentions. It is not a court's function to pass judgment on the wisdom of the legislation, for that is the task of the legislative body which enacted the legislation. The Ohio General Assembly, and not this court, is the proper body to resolve public policy issues.

Q: What is your best advice regarding the DMA?

A:   When in doubt, fill one out.