MY LAST ELECTIONS BLOG POST… until the next one…

Many of you know that I’ve spent most of my legal career involved with elections administration and law. So, after resolving some 700 Provisional Ballot challenges at a Saturday hearing, on November 14th, I have some thoughts:

  1. AIN’T NO ELECTION FRAUD!!! Not in Allegheny County, PA, the other 66 PA Counties or anywhere else in the US where we voted on November 3. Baseless allegations and reports to the contrary, there might be inadvertent errors, which will be corrected upon final tabulation, but no fraud, scheme, conspiracy, skullduggery and/or chicanery. None
  2. Anyone who assets that there was fraud in last week’s elections is a lying fool, to assert these things or believe these things
  3. It might be good for business, for media or others but these fraud allegations, insult and defame tens of thousands of people, who have taken sworn oaths, to process voters and votes properly, according to law. I count myself as one of the people who have been defamed and whose integrity has been questioned
  4. One may not like the results of an election, but just because “your” candidate lost, does not indicate fraud. Consider the simple proposition that the candidate that receives the most votes wins the election. Basic functioning of the American electoral system
  5. Attacks on the validity of our elections system over the years has and continues to undermine confidence in our system of elections and vote tallying
  6. Elections are like buses. Another one is coming along, with a new set of candidates and issues

With Thanksgiving fast approaching, do your best to appreciate and protect our system of selecting our representatives, locally and nationally. Please.

– Allan Opsitnick

Q: THE POLLS HAVE CLOSED. NOW WHAT? A: YOUR PANTS… KEEP THEM ON!!!!

Media reports and statements of public officials are creating an avalanche of perception that whatever vote totals exist on Tuesday night are somehow dispositive of the November 3 Election. NOT EVEN CLOSE TO TRUE.

Every state and each of Pennsylvania’s 67 Counties has a formal vote tabulation process. Pennsylvania requires that the Friday after the Election a “Return Board” be sworn and seated to commence the formal and official vote count. In Allegheny County, the Return Board is comprised of Elections Division employees for the most part.
Does that mean that everything that we see and hear on Tuesday night, into Wednesday, is unofficial? YES!

Taking Allegheny County, PA for example, Tuesday begins a scanning and count of approximately 350,000 mail-in ballots, that are securely stored, in addition to a like number of in person votes on Election Day, with polls remaining open until 8:00 PM. While this is a monumental task and will take some time, it is likely that by end of day Wednesday these votes will be tabulated and posted on the Elections web page. BUT WAIT,THERE’S MORE!

Certain military ballots need not be returned for an additional week to be counted. Thousands of Provisional Ballots that will be cast on Election Day will be examined by the Return Board to see if they are counted and, if so, to what extent. And, at least for Tuesday’s Presidential Election, the PA Supreme Court has ruled that mail-in ballots received after the 8:00 PM close of polls, but postmarked on or before November 3, and received by November 6, at 5:00 PM shall be counted. That count, of course, cannot begin before Friday at 5:00.

You get the picture, I certainly hope. There is much to do after the whistle blows at 8:00 PM on Tuesday. So, as always, patience is a virtue.

Allan Opsitnick

USE THOSE NOISE CANCELING HEADPHONES

Many folks swear by noise canceling headphones for flying. Well, I suggest a more important use… between now and Election Day on November 3rd.

I’m not advocating tuning out candidate messages. Put these headphones on to block out the confusing, incorrect, misleading, intentional and inadvertent messages about voting Tune it out and simply do this. A few easy steps, as follows:

1) Register to vote. Registration deadlines for a few states are as follows:
a) Pennsylvania – October 19, 2020
b) New York – October 9, 2020
c) Ohio – October 5, 2020
d) Alaska – October 4, 2020

2) Vote. Vote for whomever you prefer, but the important thing is to vote. All voting procedures in all states make voting easy. There are two options:


A) Vote in person. Poll hours on November 3 are:
i) Pennsylvania: 7:00 AM – 8:00 PM (EST)
ii) New York: 6:00 AM – 9:00 PM (EST)
iii) Ohio: 6:30 AM – 7:30 PM (EST)
iv) Alaska: 7:00 AM – 8:00 PM (ATZ)

As to voting in person, and taking Allegheny County as an example (and one where I’m most familiar, having practiced elections administration law for 30+ years), there are 1,323 voting districts in the county. In other words, everyone can vote in person at a neighborhood polling place. Poll workers will be masked and COVID related precautions will be in effect. All other counties in Pennsylvania have neighborhood voting districts and COVID precautions will be used.

My understanding is that the other states mentioned above also have local polling locations and, as you can see, a lengthy period of time to vote in person.

B) Voting by mail:
i) Pennsylvania legislation, enacted in 2019, makes voting by mail available to all voters. Pennsylvania provides for both absentee voting and mail in voting. Absentee voting requires a statement of either disability or absence from one’s municipality on Election Day. BUT, mail in voting is truly no fault and requires no reason to vote by mail. Voters can apply for absentee and mail in ballots either online or by mailing a paper form. The application deadline is October 27, with ballots to be returned by November 3, by 8:00PM, the close of polls
ii) New York permits absentee voting, but recent legislation permits an absentee ballot to be used if someone is unable to vote in person due to risk of contracting or spreading a communicable disease, including COVID-19. In other words, New York is a mail in ballot state, with minimal explanation required to vote by mail. October 27 is the last day to apply. Mail in ballots must be postmarked by November 3 and received by the County Elections Office by November 10
iii) Ohio permits no fault absentee voting, applications due by noon on October 31. Ballots must be postmarked by November 2 and received by November 13. Additionally Ohio permits early voting, by absentee ballot, between October 6 and November 2 at the County Board of Elections. The times vary by date, so go online to check the applicable times
iv) Alaska permits absentee voting. Applications by mail must be received by October 24 and online by November 2. Early absentee voting begins on October 19 and ends on November 3.Hours vary by location, so go online to check. Absentee voting is “no excuse”, so anyone can vote by absentee ballot.

Keep those noise canceling headphones on and REGISTER AND VOTE. If voting by mail, complete your ballot and mail IMMEDIATELY to avoid any USPS delays. Exercising your franchise is simple.

Now, perhaps you may want to keep those noise canceling headphones on for the candidate ads as well…

– Allan Opsitnick

CONSIDERING OUR FLAG

As of late, there has been a lot of talk in the country about what is and is not disrespectful to the American flag, initiated by athletes “taking a knee” during the national anthem. As such, I think it’s important to take a look at the language of the Flag Code and see just what’s going on.

The Flag Code is federal legislation, developed by the American Legion in 1923 and enacted in 1942. However the Flag Code is advisory only and is not enforced. The Flag Code provides as follows:

– The flag should never be flown upside down except as a signal of dire distress in instances of extreme danger to life or property

– The flag shall never touch anything beneath it (e.g. the ground, water, merchandise, etc.)

– The flag shall never be carried horizontally or flat, but always aloft and free

– The flag shall never be used as any sort of apparel, bedding or drapery. The red, white and blue bunting that we see on podiums and other areas as a decoration is permitted with the blue on top, white in the middle and red on the bottom

– The flag shall not be used as a ceiling cover

– The flag shall not have any mark, insignia, drawing, design, etc. placed upon it

– The flag shall never be used as a receptacle to carry or receive anything

– The flag shall not be used for any advertising purposes of any kind. It shall not be embroidered on napkins, cushions, etc., and it shall not be printed on anything that is designed for temporary use and then discarded. No advertising signs should be attached to a staff or halyard from which the flag is flying

– When flying multiple flags, the American flag shall be placed at the highest height of them all, with the exception of other nations flags during a time of peace. Each national flag shall be flown from a separate pole, be of the same size and flown at the same height

– The flag cannot be used as a costume or athletic uniform, though a flag patch may be affixed to the uniforms of military personnel, firemen, policemen or members of a patriotic organization. A lapel flag pin must be worn on the left side close to the heart, as the flag is considered a living entity

– When the flag reaches a condition that is no longer fit for display, it should be disposed of in a dignified way, preferably by burning

Looking at all of the above provisions, which incidentally are not comprehensive, it is clear that the flag is treated and has become an item of merchandise, something far from the actual purpose of the flag. Perhaps people cherry pick their instances of disrespect to the flag, becoming enraged at kneeling and flag destruction, but ignoring numerous other actions in contravention of the flag code. There is no prohibition against kneeling at a flag presentation.

Also, flag burning or other desecration has been held lawful by the US Supreme Court as these acts are protected speech within the First Amendment. Those cases are Texas v Johnson, 1898 and US v Eichman, 1990.

With the above to be considered, in my opinion, the most important thing to remember is that you should know what is and isn’t disrespectful to the flag, and what is legal, before taking to social media or otherwise to denounce anyone else.

Zach Opsitnick

COVID-19 FORESEEABLE?? WAIVABLE?? IT AIN’T GOING AWAY

COVID-19 has dramatically affected every aspect of our lives since mid-March, though it appeared in January and February. Nothing can be done to turn the clock and the calendar back, so as to make this pandemic not have attacked the world, or at least to have minimized its deadly effect that continues.

But, consider whether or not COVID-19, more precisely a viral pandemic of whatever variety was foreseeable? By foreseeable, I mean both in the factual (could we or should we have known that a pandemic would strike) or the legal context. A brief definition of legal foreseeability would be an event such that a person of ordinary prudence would expect a global pandemic with devastating death, illness and economic destruction.

Well, let’s consider the films that discuss, contemplate and/or predict this very catastrophe. Here is a (less than complete) list of films that predict what we are enduring right now:

– Virus (1980) (Japanese)
– The Mad Death (1983) (Miniseries)
– 1918 (1985)
– The Dolphin’s Cry (1986) (Soviet)
– Epidemic (1987) (Danish)
– 12 Monkeys (1995)
– Outbreak (1995)
– Virus (1995)
– Doomsday Virus (1996) (Miniseries)
– Quarantine (2000)
– Infection (2004) (Japanese)
– Fatal Contact: Bird Flu in America (2006)
– The Host (2006) (Korean)
– Have Mercy on Us All (2007) (French)
– Pandemic (2007) (Miniseries)
– Blindness (2008)
– Doomsday (2008)
– Carriers (2009)
– The Crazies (2010) (Remake of 1973 version)
– Contagion (2011)
– Infected (2012)
– Flu (2013) (Korean)
– 93 Days (2016)
– The Hot Zone (2019) (Miniseries)
– Virus (2019) (Indian)

And as my research assistant pointed out, this does not consider the flood of zombie movies. So, this pandemic was in the mind of filmmakers. Perhaps more significantly Bill Gates, in a 2015 TED talk hit the nail squarely on the head in predicting and discussing preparations for a pandemic. You may or may not like Gates, but undoubtedly, he is a brilliant man and spends his hours reading and educating himself.

My conclusion is that the COVID-19 pandemic was most foreseeable and “we” failed to prepare. There will be many legal actions stemming from the coronavirus and the issue of foreseeability will be front and center.

On a related issue, the Trump campaign held its first campaign rally in months recently in Tulsa, Oklahoma. Leaving politics aside, as my interest is in elections administration, so no matter whom you favor, get out and vote, by mail or in person on November 3, the Trump campaign required a coronavirus waiver of all who registered to attend. The waiver language is as follows:

“By clicking register below, you are acknowledging that an inherent risk of exposure to COVID-19 exists in any public place where people are present. By attending the Rally, you and any guests voluntarily assume all risks related to exposure to COVID-19 and agree not to hold Donald J. Trump for President Inc., BOK Center, ASM Global or any of their affiliates, directors officers, employees, agents, contractors, or volunteers liable for any illness or injury.”

Is this waiver effective and enforceable? If I accompanied someone and did not execute the waiver, am I bound? As well, the waiver language extends beyond COVID-19 and arguable extends, for example, to a fall because of a defective condition at the rally site. Also, while many entities are within the scope of the waiver, the president himself is not. Might President Trump be vulnerable to a claim by a person that contracts COVID-19 or incurs an injury at the rally.

Much to consider and process. Much more to come.

Allan Opsitnick

PAYCHECK PROTECTION BOONDOGGLE, aka, YOU’RE SCREWED SMALL FRY!

This blog was intended to be posted a few weeks ago, however every time I was set to upload this, I heard the voice of the late TV pitchman Billy Mays saying “But wait, there’s more!”

The Paycheck Protection Program (PPP) was instituted by the federal government as part of COVID-19 financial relief. On paper, the PPP sounded great. Small businesses, 500 employees or fewer, could obtain prompt funding to cover payroll expenses in large part and, if properly spent, the money would be a non repayment grant rather than a low interest loan. The emphasis was on PROMPT processing of loan applications so that small businesses could continue paying their employees.

Applications were accepted beginning April 3. The funding quickly ran dry. That funding amount was $349 billion, administered by the federal Small Business Administration, ostensibly to help “small businesses” survive this surreal and economically crushing time period.

In the late March and early April run up to PPP application, I was contacted by some clients, friends and family members who operate small businesses. All of these operations are truly small, even tiny, ranging from 2-12 employees. All of them promptly applied with their home banks for PPP assistance. The result was not good.
None of these half dozen or so small businesses received prompt approval and funding. All of these folks had to supplement their PPP applications with additional information or documentation. One client finally received funding in late April. Another small client received funding last week, the week of May 4. Other clients have loans in progress except for a client with 2 employees whose application has disappeared into the abyss of banking and bureaucracy.

So of my admittedly very tiny sampling (nothing empirical about this) I am aware of a whopping 2 businesses that have received modest amounts of funding 5 weeks from the PPP program initiation.

And as I drafted this discussion of the disappointing way that PPP fell short of assisting truly small businesses, Billy Mays called out to bring to my attention the following:

• PPP defined a small business as having no more than 500 employees, at a single location. As a result, chain business and restaurants, that are huge business, each became a small business for purposes of the PPP;
• The maximum amount of PPP assistance was $10 million. At least two one of my clients requested PPP assistance of less than $10,000;
• Publicly traded companies, with more than adequate resources and access to capital, received $1 billion of PPP funding. For example, as reported in the Washington Post on May 1:
◦ Veritone, whose CEO was paid $18.7 million, received $6.5 million;
◦ Aquestive Theraputics, who employs 219 people, but whose CEO made $2.9 million in 2019, received $4.8 million in PPP assistance. After this transaction was publicized, Aquestive said it would return the money;
◦ Ashford Hospitality Trust made over 100 filings and obtained $76 million in PPP funding. This was done by treating multiple subsidiaries of large companies as a separate entity;
◦ AutoNation, which is a network of auto dealers, received $77 million. Nonetheless, AutoNation then returned some employees to furlough status and rescinded certain wage guarantee arrangements

With the late Mr. May’s voice ringing in my head, there is more, much more:

• The Los Angeles Lakers received $4.6 million, while having an estimated value of over $3 billion. After this largesse was disclosed, the funds were said to be returned. Again, after disclosure;
• Ruth’s Chris Steakhouses (Ruth’s Hospitality Group, Inc.) received approximately $20 million, since returned after being reported;
• Shake Shack Inc. received $10 million, since returned after being reported;
• This list of publicly traded companies and/or firms with adequate resources goes on

Even after a second round of PPP funding of about $310 billion, many true small business are shut out. There have been reports that many small banks trying to process loans for their customers have been shut out as well. KDKA news reported on May 4 that Alexander’s Italian Bistro in Pittsburgh, a venerable dining spot that opened in 1958, was closing as it could not obtain PPP funding in its time of need.

The respected Brookings Institution stated “Had Congress set a maximum limit of $1 million it would have freed up over $150 billion – enough money to more than double the number of truly small businesses that received aid.”

Brookings Institution, meet the late Alexander’s Italian Bistro.

COVID-19 Stimulus Payments – A Quick Note

Yesterday I was asked if a person is prohibited from receiving their stimulus payment if 2018 and 2019 tax returns were not filed. Please read the following:

1.) 2019 federal tax returns are not even due until July 15, as the April 15 deadline has been extended. So, not having filed your 2019 tax return is not an issue;

2.) As to 2018 federal tax returns, the IRS website states:

Q.) I have a tax filing obligation but have not filed my tax return for 2018 or 2019. Can I still receive an economic impact payment?

A.) Yes. The IRS urges anyone with a tax filing obligation who has not yet filed a tax return for 2018 or 2019 to file as soon as they can to receive an economic impact payment. Taxpayers should include direct deposit banking information on the return

3.) As to direct deposit payments, if you have a judgment or garnishment/attachment action against you, it would be better to obtain your stimulus payment by check so that you can hold it, deposit it into an account of another person or something similar to preserve these funds for your use.

Feel free to contact us if further questions on this issue.

Allan Opsitnick

COVID-19… A Surreal World

Just some thoughts during this time of national and world crisis:

The two working adults in our house are fortunate that we are both able to work from home. In addition I have my father, aged 95, staying with us pending the end of Pennsylvania’s stay at home order.

Like any other event, there is too much corporatization. Television overflowing with “helpful” ads and I’ve received e-mails from service providers that I’ve never used; consultants, court reporting firms, insurance companies and the like as well as “we are here to help you” e-mails from credit card firms, airlines, etc. Anyone of normal intelligence knows where to contact a firm, person or agency if a question arises.

Both the Federal and Pennsylvania government are enacting economic stimulus programs. See the link below to calculate how much you and your family will be eligible to receive:

Stimulus Check Calculator

While we are stuck at home, the internet provides a breathtaking array of outlets. Museums, art galleries, parks and other activities are available online.

Fender musical instruments has offered 3 months of free guitar lessons online to the first 100,000 people interested. So I signed up. By not having to commute, I’m saving an hour to an hour and a half every day, so I’m taking guitar lessons and have pulled my ukulele and Fender bass out to brush considerable rust from my musical skills.

I’m old enough to remember the Kennedy assasination (I was in 6th grade) and naturally the events of September 11th. With these crises, there was a period of shock and adjustment but the trauma as closed ended. On September 11th, within a few days, we realized that the attack had ended, and we could grieve, join together and move on. With COVID-19 currently an open-ended disaster, we do not know when we will return to anything approaching normal. This disaster could be more stressful that anything before, for that reason it is important to help each other. We try to patronize local businesses for take out meals. This is not a great time to be a small business. Americans persevere. We shall do so.

All that being said, I’m available at all times to respond to questions, whether or not you are an existing client. My contact information is:

Cell Phone: (412) 600-2676
E-mail: aopsitnick@opsitnickslaw.com

Allan Opsitnick

VA Healthcare System: My Thoughts

In recent months, tragic intentional deaths of VA hospital patients was revealed at the VA hospital in Clarksburg, WV. Three hospitalized vets were killed. No one has yet been charged criminally. Clearly these are criminal actions as non-insulin dependent patients were injected with insulin, killing them.

The VA healthcare system, the above situation aside, has been assailed for poor care for years. I can only comment on a tiny portion of the VA healthcare system interaction with my family.

My dad Joe, who is 95 and a World War II Navy vet, obtains most of his care through one of two VA healthcare facilities in Pittsburgh. Beginning in September of 2018, dad has sustained some circulatory problems requiring four surgical procedures and three overnight stays in the hospital as well as wound treatments.

Dad’s care has been excellent. The physicians are top notch. Perhaps that is as the primary VA hospital in Pittsburgh is adjacent to the University of Pittsburgh campus and in walking distance to the University of Pittsburgh medical school. The same vascular surgeons that render care to my dad at Pittsburgh VA also provide service for the University of Pittsburgh Medical Center hospitals. We are fortunate in this regard.

However, the permanent, non-rotating VA staff; nurses, technicians, administrative and support personnel, have been wonderful to my dad to our family. These folks care. They spend time with my dad at his appointments and when he has been an inpatient. They inquire as to his military service, his current life, and whether or not he needs anything. They provide answers to the questions raised by my sister and me, resulting in a feeling of quality care, with no stone left unturned and leaving my dad in the best possible position. Currently, his circulatory issues are resolved.

There are no open wounds. I know at his age this can change in a moment.

The Pittsburgh VA hospitals are a tiny cog in the VA health system wheel. But based on our experience, I salute those that are treating my dad with expertise and respect.

– Allan Opsitnick

I Was Just Scammed

As I was the only one in office this morning, I answered the phone. A professional female voice said, “This is Grace from hearing administration, can you hear me?” Of course, but stupidly, I answered “yes” and then the call ended. I then realized that I was scammed with a spam phone call so that there is a recording of my voice saying only “yes.”

In the last few years, such scams have been used to then authorize purchases and services, without any authorization.

It took me only seconds to realize what had happened. By then it was too late. My string of curses (so glad that no one else was around at this time) did nothing to rectify. We are contacting our telephone provider to report this but it is unlikely that anything will happen to cure this.

Ignoring the advice of many agencies to never, ever, say yes on a telephone call, unless you know the caller. I was scammed.

Our advertisement, on the Carnival of Randomness podcast, where we are a sponsor, stresses that we are under attack and that nameless and faceless entities are taking from you and stealing from you. The truth of this is reinforced continuously.

Don’t make the same mistake that I just did.

– Allan Opsitnick