Hartford Business Journal

www.HartfordBusiness.com • July 13, 2020 • Hartford Business Journal 15 from the state, a group of eight resi- dential landlords and property manag- ers that sued Lamont in June are. That suit, filed in federal court, challenges Lamont's executive orders that have temporarily beefed up protections for renters. They include a moratorium on evictions and extended grace periods for pay- ing rent — from the usual nine days to as many as 60 days. Lamont also ordered landlords to divert a portion of tenants' security deposits to cover a rent payment, if tenants request they do so. Rep. Craig Fishbein (R-Walling- ford) is also an attorney and one of several Connecticut lawyers repre- senting the landlords in the case. He said the executive orders have violated various clauses of the U.S. Constitution, and he called the suit's request for damages the "appropri- ate thing to do." "Our clients have been damaged financially," Fishbein said. Paul Mounds, Lamont's chief of staff, said the governor's legal team has analyzed each executive order to ensure it fits within the scope of the emergency legal powers granted to him under state law. "Our overall focus, first and fore- most, is how we can best keep our state moving, while keeping people safe throughout a public health emer- gency and epidemic," Mounds said. He also said Lamont has taken a collaborative approach with execu- tive orders, reaching out and getting feedback from constituencies — especially the business community — most impacted. He noted that business leaders, including the CBIA, were on the gov- ernor's Reopen Connecticut Adviso- ry Group, which helped inform some of the governor's decision-making. Lamont also issued many direc- tives that provided businesses regulatory relief, such as delaying tax-payment deadlines, Mounds said. Broad emergency powers It's tough to make the case that Lamont has stood out among gover- nors as a power-hungry ruler during the COVID-19 crisis, since many of his peers across the country have taken similar or even stricter measures. But there are some unique aspects to the Connecticut statute that underpins Lamont's 60 executive orders (and counting), according to Hartford law firm Day Pitney, which wrote in an April white paper that Nutmeg State law grants the gover- nor an unusually broad set of pow- ers compared to most other states. For example, during the six- month public health and civil preparedness emergency peri- ods declared in March, Lamont is permitted to modify or suspend any state statute, a power typically left to the legislative branch. Many states offer "significantly narrower" emergency authority to their execu- tive branch, the lawyers wrote. Under the state's emergen- cy law, Lamont could unilateral- ly raise tax rates, the attorneys wrote, though the governor's executive orders thus far have been "far more modest and do not test the full limits" of the power granted to him. The paper concluded there are at least some constitutional doubts about those powers, including Lamont's del- egation of certain decisions to various state agencies during the pandemic. There's also a potential argument to be made that the COVID-19 crisis is a public health emergency, but not a civil preparedness emergency (Lamont has declared both), a dis- tinction that could limit some of the governor's authority. However, there will be various factors working in Lamont's favor if one of the lawsuits reaches a deci- sion, said Christopher Klimmek, one of the Day Pitney attorneys who co-authored the white paper. "The orders were responding to a very serious and genuine emergen- cy, and they were issued promptly, with a lot of thought put into them," Klimmek said. Another key factor, the white paper noted, is "a strong sense, deeply root- ed in American law, that the inherent power of the executive is at its apogee when confronted by an emergency." Klimmek said he's been surprised by how flexible his clients and busi- nesses in general have been in com- plying with the executive orders. "We have a lot of large clients that want to be good citizens and I think it is to their credit that they are figur- ing out ways to work things out," he said. "But there are plenty of litigious folks out there and the impact of these orders has been significant. We are really in uncharted legal territory. We've seen lots of plaintiffs chal- lenge much less burdensome rules that have a much less legal foundation." Day Pitney attorney Susan Huntington said companies have another motivation to comply with executive orders: They are concerned about litigation from employees, customers or other third parties should they contract the virus at their place of business. "They are worried about not only getting pushback from the govern- ment, but also getting sued by cus- tomers and workers," she said. Criticism and praise The CBIA and National Federation of Independent Business (NFIB) are two lobbies that can usually be count- ed on to crusade against government regulation that creates uncertainty and costs businesses money. Less so during a pandemic. In recent interviews, outgoing CBIA CEO Joseph Brennan and NFIB Con- necticut Director Andrew Markowski each shared a few quibbles about Lamont's pandemic performance. They both cited the reopening delay for nail and hair salons as a misstep, and Markowski argued that Lamont should have given the legislature a larger role in his decision-making process. But on the whole, each said the governor's executive orders largely seemed to make sense given the un- certain and unprecedented situation. "It's easy to find fault with anyone in a situation like we've been in, but on balance, what I'm hearing from most of our members is that he's done a very good job," Brennan said. "When you look at the level of dis- ruption caused by this, it's hard to imagine trying to manage through it in real time when you have almost zero time to prepare for it." Some CBIA members wanted to chal- lenge Lamont's executive orders early on in the pandemic, Brennan said. "As the numbers kept spiking and deaths kept mounting, I heard less of that," he said. Markowski said he was relieved that Lamont deemed a fairly broad set of businesses as essential, allow- ing them to remain open. He said Lamont seems to have based his decisions on available data and advice from medical experts. "On the other hand, I think it's fair to say that there needs to be a balance in terms of the decision- making process," he added. Rep. Mike France (R-Ledyard), chair of the legislature's Conservative Caucus, was less kind in his review, giving Lamont a grade of "C or C+" for his handling of the pandemic. "Certainly the numbers have been good, but I don't think we understand what the cost of that is going to be long term for our state," France said. He argues that Lamont failed to adequately change his strategy when it became clearer that the virus was not likely to infect 350,000 to 700,000 Connecticut residents, which state epidemiologist Matthew Cartter had said in March was a possibility. "I gave the governor some leeway at the beginning because there was a significant lack of information, and what information there was seemed to be like the end of the world," he said. Based on Connecticut's plum- meting number of daily deaths and hospitalizations, as well as the virus' shrinking transmission rate, France said the state should be well beyond the second phase of Lamont's re- opening plan. However, he's unlikely to get his wish, as Lamont, citing concerns about developing hot spots in several states around the country, recently decided to delay phase three, which had been slated for mid-July. France also said Lamont's executive orders should have treated regions of the state differently. For example, his eastern Connecticut district, which had far fewer COVID-19 cases than Fairfield County, should not have seen as extensive a shutdown, he said. France acknowledges that state law gives Lamont broad authority, though he feels it is unconstitutional. "We may see some remedies in court," he said. Captain EO: Gov. Ned Lamont hasn't been shy about flexing his emergency authority muscles during the pandemic. He issued 60 executive orders between March and July 6 — directives that have both saved lives and put some businesses in peril. Steve Simpson, Attorney, Pacific Legal Foundation Christopher Klimmek, Attorney, Day Pitney PHOTO | CLOE POISSON, CT MIRROR

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