If you post comments on PennLive, you might get called to the Superintendent’s office

On March 7, 2014, Dr. Susan Kegerise, superintendent of the Susquehanna Township School District, filed a Notice of Intention to Serve a Subpeona.  The Notice, issued by her counsel Jason Kutulakis, Esq., would order PennLive to produce “Any and all identifying information for PennLive users for those who commented on the attached articles and usemames/screen names moderatecommonsense, DumbandDumber and Hamburger.”

Dr. Kegerise then attached 44 separate articles, demanding that PennLive reveal the identities of EVERYONE who posted comments, regardless of the relevance of the comments.

Oddly, the Notice of Intention to Serve Subpoena came four days AFTER Mr. Sussman and Mr. Rawls dropped their federal litigation against Dr. Kegerise.

Are township residents paying for the subpoena?  Payments to Abom & Kutulakis (the superintendent’s PERSONAL attorney) have been in the news and on the STSD Board agenda (see top item on page 4).

Will PennLive take issue with this Subpoena?  A hint might have come yesterday when coincidentally PennLive ran a small blurb by John Micek: “A Philly judge’s ruling could give pause to the legions of online commenters who gather on PennLive every day (Note: We’d fight anything like this).”  [Look for the blurb immediately following the sub-headline "The rest of the day's news starts here."]

If PennLive fights the subpoena, are the taxpayers required to pay for the fight, even though the underlying litigation was already dropped?

The relevant documents are below:

Notice of Intention to Serve Subpoena – Kegerise

Attachments to the Subpoena

Attachment Z to Subpoena Attachment A to Subpoena Attachment AA to Subpoena Attachment B to Subpoena Attachment BB to Subpoena Attachment C to Subpoena Attachment CC to Subpoena Attachment D to Subpoena Attachment DD to Subpoena Attachment E to Subpoena Attachment EE to Subpoena Attachment F to Subpoena Attachment FF to Subpoena Attachment G to Subpoena Attachment GG to Subpoena Attachment H to Subpoena Attachment HH to Subpoena Attachment I to Subpoena Attachment II to Subpoena Attachment J to Subpoena Attachment JJ to Subpoena Attachment K to Subpoena Attachment KK to Subpoena Attachment L to Subpoena Attachment LL to Subpoena Attachment M to Subpoena Attachment MM to Subpoena Attachment N to Subpoena Attachment NN to Subpoena Attachment O to Subpoena Attachment OO to Subpoena Attachment P to Subpoena Attachment PP to Subpoena Attachment Q to Subpoena Attachment QQ to Subpoena Attachment R to Subpoena Attachment RR to Subpoena Attachment S to Subpoena Attachment T to Subpoena Attachment U to Subpoena Attachment V to Subpoena Attachment W to Subpoena Attachment X to Subpoena Attachment Y to Subpoena

STSD: Letter to Paul Blunt: Rawls, Sr. and Sussman believe the school district should not pay to defend the superintendent’s contract

On December 6, 2013, The Keisling Law Offices, P.C. wrote to STSD Solicitor Paul Blunt and requested on behalf of Jesse Rawls, Sr., and Mark Sussman that the STSD Board consider a resolution to not use taxpayer funds to defend the Superintendent’s contract which is the subject of federal litigation.  See the Blunt Letter here.

STSD: PennLive Editorial–How can a school superintendent be allowed to muzzle school board members?

A PennLive editorial can be found here, published online on Tuesday, Nov. 26, 2013 and in the print edition of The Patriot-News on Thursday, November 28.  The article states, among other things: “It’s unfortunate when taxpayer funds have to be used to fight or defend lawsuits, but this is one case where it’s necessary[,]” and “Any contract imposing such limits would be a breathtaking violation of an elected official’s free speech rights.”

STSD: Complaint Filed by Rawls and Sussman

Today a Complaint was filed in the United States District Court for Middle District of Pennsylvania.  Bret Keisling, Esq., and The Keisling Law Offices, P.C.  represent plaintiffs Jesse Rawls, Sr. and Mark Y Sussman, two elected members of the Susquehanna Township School Board of Directors.

Defendants include The Susquehanna Township School Board of Directors, The Susquehanna Township School District, and Dr. Susan Kegerise in her individual and official capacities.

Exhibits to the Complaint can be found here: Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H

STSD: Adam Wiener has First Amendment Rights too

The issues facing the Susquehanna Township School District are not just about the rights of elected officials.  District stakeholders have been intimidated and bullied into silence. Other stakeholders have had their constitutional rights violated by misguided policies and procedures that only serve to cutoff debate and discussion.

Adam Wiener discovered this first-hand.  In a video found here, you’ll learn of Adam Wiener’s experience trying to communicate with his elected officials.  The story is straightforward and easy to understand, and explains how our constitutional rights are being violated on a systematic basis. To see the emails, click on the link: STSD Adam Wiener emails.

When I was a student at STHS (Class of ’81). we learned about freedom of speech.  We also learned about the political process from Dave Volkman, an extraordinarily popular teacher and, later, superintendent.  We were taught that in a democracy the minority gets their say and the majority gets their way. In Susquehanna Township, the majority gets their way, but the rest don’t get their say.

Keeping stakeholders from communicating with their elected officials and other stakeholders is un-American, undemocratic and just plain wrong.  It must stop now.

In Certain Situations, ESOPs Are An Excellent Option For Business Succession

There are many misperceptions about the benefits of Employee Stock Ownership Plans (ESOP) as a tool for business succession planning. Forbes.com posted a great article by Steve Parrish, who explains that  ESOPs may be counterintuitive, but that doesn’t make them illogical. Find the article here.

For more information about ESOPs, there are two national organizations, The ESOP Association and the National Center for Employee Ownership (NCEO). Also, contact Bret Keisling, Esq. who prior to forming The Keisling Law Offices, served as president of a 50-employee ESOP and remains active in the ESOP community.

This is posted for informational purposes only and does not constitute legal advice or create an attorney/client relationship.

Supreme Court Finds Pharmaceutical Sales Reps Not Entitled to Overtime Pay

The United States Supreme Court recently handed down its decision in Christopher v. SmithKline Beecham Corp., 567 U. S. ____ (2012) finding that pharmaceutical sales representatives (referred to as detailers in that industry) are exempt from the Fair Labor Standards Act (FLSA) requirement that overtime wages be paid and therefore not entitled to overtime pay. A copy of the opinion can be found here.

Petitioners worked for GlaxoSmithKline.  Unlike sales representatives in other industries who literally sell products, detailers do not sell drugs directly to physicians.  Instead, they obtain nonbinding commitments from physicians to prescribe respondent’s drugs. The detailers are assigned specific territories, and their performance and pay is determined in large measure by how many prescriptions are written within that territory.  With the exception of encouraging prescriptions as opposed to directly selling the drugs, detailers perform their jobs in essentially the same way as sales representatives in other industries.

The Court recognized the “unique regulatory environment” in which pharmaceutical companies operate.  In other words, it is government regulation and not company policy that prevents detailers from directly selling drugs to physicians’ offices.  The court also recognized that the petitioners are “hardly the kind of employees that the FLSA was intended to protect.” The court noted that Petitioners’ income averaged more than $70,000 annually and put in 10-20 hours per week beyond their normal work schedule performing duties directly related to their products and territory.

Notably, during the course of this litigation the U.S. Dept. of Labor (DOL) changed its position as to what constituted an “outside salesperson.” The FLSA requires employers to pay employees overtime wages but this requirement does not apply with respect to workers employed in the capacity of outside salesman. Congress left the term “outside salesman” undefined and delegated authority to the DOL to define the term through regulations.

In briefs filed in two federal circuit courts, the DOL took the view that “a ‘sale’ for the purposes of the outside sales exemption requires a consummated transaction directly involving the employee for whom the exemption is sought.” However after the Court agreed to hear this matter, the DOL changed is position, arguing in a brief that “[a]n employee does not make a ‘sale’ … unless he actually transfers title to the property at issue.”

The Court declined to accept DOL’s interpretation in this matter for several reasons. The DOL’s interpretation could have resulted in massive penalties and fines for GlaxoSmithKline’s conduct that occurred long before the DOL changed its interpretation of “outside sales.” In addition, the DOL never before suggested that detailers were entitled to overtime pay or that it thought the industry was acting unlawfully by not paying overtime. The Court also found it noteworthy that the DOL changed its decades’ long policy by filing a brief with the Court instead of holding public hearings or allowing public comment, as is often the practice when regulations are introduced or revised.

For many businesses there could be far reaching implications if the DOL successfully changes regulations to require that title must change hands for a sale to occur. For many outside sales reps, the overtime exemption would remain clear.  But others could be affected.  For example, where products have a long sales cycle extending, in some cases, several years, it is conceivable that the DOL could argue that if it takes too long for title to change hands, the outside sales rep should not be exempted from overtime pay.

One thing seems clear: for the DOL to change the definition of “outside sales” it will have to allow for public comment and possibly hearings, and not just promulgate a drastic rule change by inserting it in a legal brief. In the event the DOL tries to change its definition, businesses would be well-advised to understand how a new definition could affect its employees, and to make sure the DOL is apprised of the business’s view of any proposed change.

This is posted for informational purposes only and does not constitute legal advice or create an attorney/client relationship.

Keisling speaks at press conference on Affordable Care Act

On June 28, 2012, the United States Supreme Court issued its decision upholding the constitutionality of the Patient Protection and Affordable Care Act (ACA).  A copy of the opinions of the Court can be found here.

Later that day, Bret Keisling participated in a press conference on the steps of the Pennsylvania Capitol in Harrisburg. Keisling spoke on the practical implications of the ACA on small businesses.  Keisling didn’t address the political aspects of the ACA because, as a practical matter, Congress passed the law, President Obama signed the law, and the United States Supreme Court upheld the law.  Therefore political considerations were not relevant to the analysis on its effect on small business.

Generally speaking, the ACA has the potential to benefit small businesses.  Small businesses (under 50 employees) that provide health insurance to its employees will receive tax breaks.  A guide to the tax deductions can be found here at the IRS website.

Small businesses will also benefit from the creation of Health Insurance Exchanges. As explained in this article posted by about.com, “the ACA creates state-based Health Insurance Exchanges administered by a governmental agency or non-profit organization, through which individuals and small businesses with up to 100 employees can purchase qualified coverage.” Health Insurance Exchanges will allow small businesses to participate in a pool with numerous other small businesses and individuals, allowing them to take advantage of the economies of scale that are often afforded larger organizations.

Small businesses will also benefit because the ACA forbids insurance companies from denying coverage to individuals with pre-existing conditions. There has been significant media stories about individuals who were unable to switch jobs or put at risk if they lost insurance coverage if they or a dependent suffers from a pre-existing condition, because they would unlikely to obtain health insurance coverage at a new job.

Keisling pointed out that in addition to the problems this causes the individuals, small businesses were hindered because these individuals were effectively removed from the employment pool.  Otherwise qualified, talented people could not be hired due to costs of insuring them, if they could be insured at all. Under the ACA, these individuals can be recruited and hired, allowing small businesses to attract the best possible workforce.  A brief (28 second) video clip of part of Keisling’s comments about pre-existing conditions can be found here. The video is courtesy of PA Independent.

Coverage of the press conference, including Keisling’s participation, can be found in  PA Independent, the Central Pennsylvania Business Journal, and The Morning Call (Lehigh Valley).  The Morning Call article was also reposted on WSBT.com. .Among other organizations and individuals, the Pennsylvania Health Access Network also participated in the press conference. Its website covered the press conference here, in its Media Center.. Photo courtesy of Keystone Progress.

This is posted for informational purposes only and does not constitute legal advice or create an attorney/client relationship.

Keisling quoted in article on PA’s Right to Know Law

Pennsylvania Independent is an online publication which describes itself as “a public interest journalism project dedicated to promoting open, transparent, and accountable state government by reporting on the activities of agencies, bureaucracies, and politicians in the Commonwealth of Pennsylvania.”

They do an excellent job covering the major issues of the day that affect Pennsylvanians and our commonwealth, often reporting on aspects of major stories that other media does not.  Visit their website at: http://paindependent.com/

Bret Keisling, Esq. was quoted in a recent story on the Pennsylvania Supreme Court’s decision that private entities could be subject to PA’s Right to Know Law under some circumstances.  Click here for the story on Pennsylvania Independent. See below for an article posted previously by The Keisling Law Offices.

This is posted for informational purposes only and does not constitute legal advice or an attorney/client relationship.