IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION EILEEN w. HARRISON, PLAINTIFF, vs. NO. LRucm98?716 ELDON F. COFFMAN, Individually acting and in His Official Capacity as the Chairman of the Arkansas Workers' Compensation Commission, and MICHAEL K. WILSON, Individually acting under the Color of State Law and in His Official Capacity as a Commissioner of the Arkansas Workers' Compensation Commission, DEFENDANTS. DEPOSITION OF STEPHEN P. CARTER Produced, sworn, and examined in the offices of Quattlebaum, Grooms, Tull Burrow, 111 Center Street, Suite 1900, Little Rock, Arkansas, commencing at 9:20 on Wednesday, November 8, 2000, in the above-captiOned cause now pending in the United States District Court, Eastern District of Arkansas, Western Division; said deposition being taken pursuant to provisions of the Federal Rules of Civil Procedure, for discovery and all other purposes, at the instance of ounsel for plaintiff. A It is stipulated and agreed that all forms and formalities as to the taking, transcribing, certification, excepting signing of said deposition in this action are hereby waived; however, the right to object to the testimony of the Witness on KAY BUTLER, CCR, CVR (501) 868-8134 the grounds of incompetency, irrelevancy and immateriality is expressly reserved, other than as to the form of questions as propounded to the witness, and may be hereinafter asserted if and when presented at the trial of this cause without the necessity of noting same at the time of taking of said deposition. A A A S: ON BEHALF OF PLAINTIFF: JOHN T. LAVEY, Esquire LAVEY BURNETT 904 West Second Street Little Rock, Arkansas 72203?2657 JANET L. PULLIAM, Esquire PULLIAM WRIGHT 1501 N. University, Suite 552 Little Rock, Arkansas 72207 ON BEHALF OF DEFENDANTS: LEON J. HOLMES, Esquire QUATTLEBAUM, GROOMS, TULL BURROW PLLC 111 Center Street, Suite 1950 Little Rock, Arkansas 72201 TIMOTHY GAUGER, Esquire OFFICE OF THE ATTORNEY GENERAL 323 Center Street, Suite 200 Little Rock, Arkansas 72201 ALSO PRESENT: ELDON F. COFFMAN MICHAEL K. WILSON EILEEN HARRISON KAY BUTLER, CCR, CVR (501.) . I Page Caption . . . . . . Stipulations . . . . . . . . 1 Appearances . . . . . . . . 2 Index . . . . . Examination by Ms. Pulliam . . . . 6 Requests . . . . . . . . 31,43 Reporter's Certificate . . . . . 125 Signature Page . . . . . . . 126 Errata Sheet . . . . . . . . 127 I I (All Exhibits are contained in a Separate Exhibit Folder.) MARKED APPENDED IN EX FOLDER Plaintiff's Exhibit Analysis of Commission Decisions Concerning Act 796 Plaintiff's Exhibit Analysis of Commission Decisions Concerning Act 796 of 1993 Plaintiff's Exhibit Addendum to Analysis of Act 796 Plaintiff's Exhibit Analysis of Commission Decisions Concerning Act 796 Plaintiff's Exhibit Response to "Analysis of Commission Decisions Concerning Act 796 of 1993 Plaintiff's Exhibit Opinion and Order Plaintiff's Exhibit Opinion and Order KAY BUTLER, can, (501) 868e3134 Plaintiff's Exhibit 8 Opinion and Order Plaintiff's Exhibit 9 Opinion and Order Plaintiff's Exhibit 10. Opinion and Order Plaintiff's Exhibit 11. Opinion and Order Plaintiff's Exhibit 12. Opinion and Order Plaintiff's Exhibit 13. Opinion and Order Plaintiff's Exhibit 14. Opinion and Order Plaintiff's Exhibit 15. Opinion and Order Plaintiff's Exhibit 16. Opinion and Order Plaintiff's Exhibit 17. Opinion and Order Plaintiff's Exhibit 18. Opinion and Order Plaintiff's Exhibit 19. Opinion and Order Plaintiff's Exhibit 20 Opinion and Order Plaintiff's Exhibit 21 Opinion and Order Plaintiff's Exhibit 22 Opinion and Order Plaintiff's Exhibit 23 Opinion and Order Plaintiff's Exhibit 24 Opinion and Order Plaintiff's Exhibit 25 Opinion and Order KAY BUTLER, CCR, CVR (501) 859-8134 Plaintiff's Exhibit 26 Opinion and Order Plaintiff's Exhibit 27 Opinion and Order Plaintiff's Exhibit 28 Opinion and Order Plaintiff's Exhibit 29 Opinion and Order Plaintiff's Exhibit 30 Opinion and Order Plaintiff's Exhibit 31 Opinion and Order Plaintiff's Exhibit 32 Fax dated April 30, 1998, to Steve Golden from Commission Mike Wilson RE: Golden v. Westark with attachments Plaintiff's Exhibit 33 Several documents concerning tephen 119 Carter concerning Lobbyist registration KAY BUTLER, CCR, 85978134 CVR THEREUPON, STEPHEN P. CARTER having been called for examination by counsel for plaintiff and having been first duly sworn by the undersigned notary public, was examined and testified as follows: EXAMINATION BY COUNSEL FOR PLAINTIFF BY MS. PULLIAM: Mr. Carter, my name is Janet Pulliam and we've just met. MS. PULLIAM: For the record, I would like it to reflect that these depositions are taken pursuant to the Arkansas Rules of Procedure and Evidence, and I think we have agreements in these depositions to reserve objections except those to the form of the question. MR. HOLMES: We do. BY MS. PULLIAM: Okay. before? A Yes, ma'am. And it's my understanding that you're a lawyer; is that right? A Yes, ma'am. So, you understand the rules and you know what we're mm we're here to just do discovery. I want to extend You a KAY BUTLER, can, (501) 868f813411 Mr. Carter, have you ever had your deposition taken_ courtesy of taking a break at any time you want to and also to the reporter, and for anybody else for that matter. I did a Subpoena Duces Tecum in this case, and I'm going to get the documents in a little bit after we get through some basic information; okay? A Yes, ma'am. Prior to coming here today, with whom did you discuss your deposition testimony? A Mr. Holmesf Anyone else? A No, ma'am. Are you represented by counsel here today? A No, ma'am. Did you discuss your testimony with someone who called me named Jay Saxton? A No, ma'am. Who is Jay Saxton? A He's a lawyer within Wal-Mart that handles discovery requests and I forwarded the information you requested to him, so that he could review that and let me know what I needed to do in response to the discovery request, but we did not discuss any testimony at that time. Okay. He and I had a brief conversation in which he told me that he had reviewed the discovery request and had reviewed w~ or rather the Subpoena Duces Tecum and had reviewed KAY BUTLER, con, . the documents that you had put together and that he had made a decision that I was entitled to all the documents that you provided to him; is that accurate? A That is correct. Actually, he has not reviewed the documents. Okay. A I forwarded it over to him just for a response as to whether or not he felt like the document that you sent me, the subpoena, was in order and whether or not I should respond to it. Okay. And the documents sitting there in front of you are the documents that you brought? . A Yes, ma'am. These are the originals. - Now, if you'll go ahead and give me those documents now, then when we take our first break, I'll go through the documents and look at my request and then try to shorten down what we have to say about the document request; okay? A Okay. Okay. Tell me a little bit about you; where you're from, where did you grow up? A I was born in Lawton, Oklahoma, in 1960. And publicly admit it? A Yes, ma'am. I grew up in several different areas, but mainly in Texarkana, Texas. Moved to Bentonville, Arkansas, in August, of 1977, graduated from high school in Bentonville, KAY BUTLER, con, CVR (591) 868-8;34 Arkansas. Went to college at Harding University, in Searcy, Arkansas. Graduated in 1982. Went to law school at UALR, was a classmate of Eileen's, and graduated from UALR Law School in December of 1984. Began practicing law in 1985 in Little Rock for a firm formerly known as House, Holmes, and Jewel. I know that firm. A Subsequently was a partner in a firm Robinson, Staley, and Marshall. Okay. A In Little Rock. Moved with my family in 1990 to Bentonville, Arkansas, and remained as of counsel at Robinson, Staley, and Marshall until June of 1991. At that time, I went to work with WaleMart and worked in the legal department as an in?house litigator for Wal-Mart until January of 1993. About a year later, in April of 1994, I went to work for Wal-Mart in the health benefits area and have been employed by Wal-Mart since that time in various positions. Okay. Tell me, when you went to work for Wal-Mart as a litigator in January, of 1993; is that right? A January of - no, in June of 1991. In June of 1991 until 1993? A Yes, ma'am. Tell me what kind of litigation did you do for Wal-Mart? A I handled workers' compensation cases. I handled what they classify as general liability cases, some employment, and KAY BUTLER, CCR, CVR (5911-868-8l34 occasion, a trucking case. They classify those as auto liability. And did you handle this litigation with outside counsel or just in?house, or was there a combination? A A combination. Okay. And when you say you've worked in the employment area, did that include A At that time period, no. Now, when you moved in 1993 to the area of health benefits, how did your job duties change? Well, first of all, let me make sure I understand. To me, a litigator means somebody who actually tries lawsuits in the courtroom for a party; is that what you did during that period of time from '91 to '93? A That was the position that I was hired into. Okay. A I tried a number of cases during that time period. I also handled administrative duties for other cases, but during that time period, I was litigating files. When you say you handled administrative duties for other cases, can you tell me what that entailed? A Managing litigation for outside counsel. For outside counsel, like even reviewing bills and those kinds of things, mundane things? A I don't recall reviewing bills. KAY BUTLER, con, CVR (501)-868-8134 But managing the litigation. I don't recall ever reviewing the bills. Did you, in fact, handle administrative oversight for workers' compensation cases? A I had a lawyer working with me named Max Koonce, and I handled administrative oversight for the cases that he was handling. Okay. A But between myself and Max Koonce, we handled all of those files for Waleart during that relative time period. Okay. So, when you say, "all of those files," would that mean all the workers' A The workers' compensation files. For the entire company? A For the state of Arkansas. For the state of Arkansas, and when you say you've managed the files for Max Koonce, would that mean that you didn't make any Commission appearances, but rather he did the appearances and you managed the files? A I performed I was handling cases other than workers' compensation cases at the time. Right. A I performed administrative oversight duties on the files that he was handling similar to what I performed when I was a KAY BUTLER, con, CVR partner in the law firm in Little Rock and he was an associate i with that firm. Okay. {15 So, I would review the files with Max ?m And excuse me, go ahead. A Go ahead. Were you and Max the only two people then, responsible for the files, the workers' compensation files in the state of Arkansas for Waleart? A During that relevant period to my recollection, we were the only lawyers responsible for workers' compensation files for Wal-Mart in the state of Arkansas. And then you moved in '94 to health benefits? A Correct. And tell me how your job duties changed? A At that time, I discontinued any participation in litigation on behalf of Wal-Mart. Okay. A And I joined the plan design section of the health benefits department within Waleart. And what do you actually do when you do the plan design for health benefits? A Review all of the benefit plans within Wal?Mart, analyze those, evaluate cost benefits for each plan, and make recommendations. I also continued to have responsibility for KAY BUTLER, con, CVR oversight for Wal~Mart on workers' compensation within a wholly-owned subsidiary called CMI. I was not a CMI associate at that time, but was given the responsibility to evaluate CMI and the benefits paid for occupational injury and illness just as I was doing for the non-occupational injury and illness, or non-occupational health. Okay. Tell me what CMI stands for? A Claims Management, Incorporated, a wholly-owned subsidiary third-party administrator for property and casualty claims. Now, did you do oversight for claims other than workers' compensation claims for CMI, or was it still just workers' comp? A I was called upon periodically to review issues, but I i don't recall the specific issues. But they would periodically call on me to review other issues, I just don't recall specifically what they were. Is it fair to say that the majority by far the majority of your oversight work at CMI was workers' compensation claims? A Well, you mean in my position in '84? Yes. '94? A I mean, in '94; yeah. The majority of my work related to the benefits plan. Okay. A But within my work that related to CMI, the majority of that work related to workers' compensation. KAY BUTLER, CCR, CVR (501) 868?8134 recollection, that's my first experience. 14% And if you put some kind of percentage of time that you spent with CMI, as opposed to your benefits work in your other job, how would you divvy that up in percentages of time? A Probably seventy percent of the time in benefits and about thirty percent with CMI related activities. Now, it's true, is it not that you are a registered lobbyist for Wal?Mart? A Yes, ma'am. And can you tell me at what point in your employment, or even prior to your employment with Wal?Mart, that you began to lobby on their behalf? A The - sometime right around 1991, the And that's when you were of counsel for Robinson, Staley, and w? A Marshall. Marshall? 1 A There was a drug bill relating to workers' compensation that was supported by the business community. The primary spokesperson for that was Mr. Bassett, Senior, and I became involved at that point in time, in working with the Bassett Law Firm, and others, on behalf of the employer community. And was that your first experience as a lobbyist or had you done it at some other point for someone other than Wal? Mart? KAY BUTLER, can, (501) 36$?3134 Okay. And if you would, can you detail for me, sort of what your experience has been with Wal-Mart as a lobbyist? A Now, lobbying on behalf of Wal?Mart, very, very little. I've been employed by Wal-Mart and I was involved, in 1993, in negotiating sessions on behalf of business as a representative that resulted in the passage of Act 796. I was not the primary spokesman, but I was a participant and a fairly active participant. Subsequent to '93, I was named as Chairman of the Arkansas State Chamber Workers' Compensation Committee and have serviced in that capacity since that time. Most recently, since I believe 1996, it may be 1997, Bill Walmsley has served as my CowChair. I Okay. Now, did you hold any other offices with the State Chamber of Commerce other than the Chair of the State Chamber's Committee on Workers' Compensation? A Did I during this relevant time period? Yes. A Which would be '97 and '98? No, I'm going all the way back to when you first started? A So, from '95 - A through today? Right. A Or what period? From '95 to '97? KAY BUTLER, can, .(501) 958-8134? No. Okay. So, from '95 to either '96 or '97, the only capacity you served in for the State Chamber was the Chair of the Workers' Compensation Committee? A Correct. And then in '96 or '97, which we're not sure which, Walmsley joined you as a co~chair? A Correct. Okay. In what other capacities have you served for the State Chamber of Commerce now since '97? A Okay. I am currently the treasurer. Okay. A Of the Arkansas State Chamber of Commerce. Okay. Now, you said that in '93, you were active as a representative in the passage of Act 796; is that an accurate true statement of what you said? A As in 1993, I was active as a business representative in the negotiations that resulted in the passage of Act 796. And was that in a capacity as a lobbyist for Wal?Mart? A No, ma'am. In what capacity were you acting? A I was requested to participate by the Arkansas State Chamber of Commerce. Q, So, it was just in your duties as a representative of the as a member of the State Chamber of Commerce. KAY BUTLER, con, CVR 16 Yes, ma'am. Now, are there any other professional associations for which you are a member for which you are active, an active participant on the issues of workers' compensation, other than the State Chamber? A There are no other organizations that I'm aware of that I am an active participant in workers' compensation within the state of Arkansas. Are there other associations that you're an active participant outside of the state of Arkansas? A I've been involved by request in different groups, for instance, the American Legislative Exchange Council, the Aspen Institute, the California Retail Association, the Oklahoma State Chamber of Commerce. There may be others. Those are some that I recall off the top of my head. Now, you singled out the term "active participant," does that mean that you're a passive participant in other organizations in Arkansas? A Wal?Mart is a member of the ASIA group. Q- Okay. A And that I did not go back and look at whether we were a member during this relevant period,-but periodically WalmMart has been a member in ASIA and paid dues to ASIA. I have not been an active participant in ASIA as an organization. Okay. Does ASIA meet on a regular basis? KAY BUTLER, con, CVR Yes, ma'am. And do you go to those meetings? A The only times I can recall attending were when they requested I attend to make a presentation or to speak. And have you w? tell me about when they requested you to make a presentation? A They normally would request me during certain periods of time, and I don't recall whether I made presentations during this relevant - during this period of time, '97, '98, but they would normally request that I appear and discuss two things: one, the state of the Arkansas State Chamber Workers' Compensation Committee; and then secondly, any discussions between myself and organized labor on potential reforms. And I 1 have done that through periodically throughout my tenure as the Chairman of the Arkansas State Workers' Comp Arkansas Chamber of Commerce Workers' Compensation Committee. So, when you say you have done that, you mean you have appeared before ASIA at their request to discuss these two issues that you've set out? A Yes, ma'am. And when you have discussions with organized labor, are there any particular people that come out, you know, that we can single out that you've discussed with the most? A Allen Hughes. Anyone else? KAY BUTLER, CCR, CVR (591) 359*3134 Mark Martin. Those two primarily. Now, tell me what you have been asked to do for the American Legislative Exchange Council? First of all, what is it? A The American Legislative Exchange Council is a group of legislatures from around the country that have organized with certain business leaders to understand particular issues and draft model legislation. Periodically, I have been called to assist with certain model legislation. And can you tell me, in particular, what kind of model legislation you have worked with them in drafting? A Some of it related to workers' compensation. Some of it related to property and casualty issues. Some related to health, non-occupational health. On occasion, I've been called upon to work on those areas. And if I wanted to go find a copy of model legislation in the area of workers' compensation that had been proposed by the American Legislative Exchange Council, where would I go besides their web page? A I don't know that now. Is there A I've just not been involved in a significant period of time and I don't know that. Okay. Is there model legislation that they have proposed in the workers' compensation area? KAY BUTLER, con, the past, they have proposed some model legislation; yes, ma'am. And of the -w how much time would you say that you have spent working with the American Legislative Exchange Council? A In total number of days, if you added it all together, probably fourteen days, if you totaled it all totaled it up. And of those fourteen days, how many how much of that time did you spend working on workers' compensation issues? A I do not recall that. And what about the Aspen Institute, what do they do? A The Aspen Institute is a thinkwtank group that looks at broad based issues. And that group, I've participated in discussions on ERISA based systems to provide a twenty?fourw hour?type model for providing health benefits. Tell me what that means. I don't know what a twenty-four? hour?type model is for health benefits. A Providing coverage for health benefits under a twenty? four?hour-model would consolidate occupational and non? occupational health under a single plan to provide a seamless approach to occupational and nonwoccupational medicine rather than a bifurcated approach that's consistent with what we do today. Okay. And has this did this participation result in any kind of model legislation? A No, ma'am. KAY BUTLER, can, CVR _(501) 868-8134 No. And about how much time did you spend working with the Aspen Institute on this? A Maybe m~ maybe seven days. Maybe half the amount of time, in total, if you consider the day as being representative of one day. And what about California Retail Association? A I've periodically been called upon by the California Retail Association to lend my opinion to issues that they face in the state of California. Your opinion about what issues? A A number of different issues, but some of them related to workers' compensation. Okay. And give me some examples of some things that you've given your opinion about in the area of workers' compensation? A The most recent benefits increase requested by and passed by the General Assembly in the state of California, but vetoed by the Governor. I was asked my opinion about that piece of legislation. Can you tell me what your opinion was about that piece of legislation? A .That that piece of legislation would be disruptive to the business community based upon the cost associated with it. And any other issues that you've given an opinion on for them regarding just the area of workers' compensation; I'm not KAY BUTLER, CCR, (501) 353-3134 interested in the other things? A Okay. I'm trying to think of specific issues. I was requested to give an opinion on the current state of the rehabilitation model used in the state of California at one time. I was requested to give an opinion on the current rating system utilized by the state of California. I was requested to giVe an opinion on apportionment at one time. There may be other areas, but those are some that I recall off the top of my head. What about the Oklahoma State Chamber of Commerce? A Oklahoma was evaluating modifications and legislation related to tort reform, and I was requested to participate as a business representative in those discussions. And was your participation there considered to be participation by Wal?Mart, or were you just asked to do this as an individual? A Wal~Mart was not monitoring my participation. I was requested to come over and participate by an individual that - that I had known for some period of time, but Wal?Mart And who was that? A ?a was not represented. A fellow named Mark Skinner. And what does Mark Skinner do? A At the time he was the I'm not sure whether it was Southwestern Representative, but I think it was Southwestern Florida, a group called AIA, American Insurance Association. KAY BUTLER, can, (501) 368-3134 And what about your participation with the California Retail Association, was that considered to be a request to have a WalvMart participation or was it just Steve Carter, as an individual, because you knew somebody and had worked with them? A The Retail Association requested my participation, because they were aware of WaluMart. Okay. And we know ASIA participation was because of your position at the State Chamber? A Well, Wal*Mart is a member of ASIA and we do not participate act I do not participate actively in ASIA. Since '94, I do not recall Wal?Mart participating actively in ASIA. At one time in the history of Wal?Mart's relationship with ASIA, Max Koonce may have been on the board. He may have been. It seems like to me at one time he may have been, but I was not involved with ASIA at that time. Now, when I have made presentations to ASIA, they've been on behalf of the State Chamber. You said that at some point in time and space, Wal?Mart was a member of ASIA and paid dues; is that correct? A That's correct. And we w? w- we've Waleart has paid dues throughout a time period. I'm just not sure what time period that occurred. Okay. Do you know whether or not Wal?Mart was a member of ASIA during 1997 and '98? A No, ma?am. KAY BUTLER, con, CVR 24+ Now, did you make presentations to ASIA during the period of 1997 and '98? A I just don't recall. I mean, I probably did during that time period, but I do not recall the specific dates. I think I made a presentation in Hot Springs within that period of time. I mean, my recollection is that I made a presentation in Hot Springs during that period of time, but it could be completely wrong. But I -w but I did, within a certain period of time, of '96, '97, '98, make a presentation in Hot Springs. And what was that presentation about? A It was consistent with what I indicated earlier, the update on the Chamber the Arkansas State Chamber of Commerce Workers' Compensation Committee, which was done periodically and those - those communications generally involved those updates, and then any communication that on behalf of the Arkansas State Chamber of Commerce I had had with a representative of the Okay. So, when you first began your lobbying activity, as of counsel with a law firm and working with Mr. Bassett; is that correct? A Are you referring back to 1991? To the drug issue? A Yes, ma'am. Okay. And then after that, did you do any other lobbying on any other issue before you went inwhouse with WalFMart? KAY BUTLER, ccn, CVR not recall doing any lobbying on any other issues. Now, you're talking about the time period, I assume, between 1991 and 1993. Right. A No, ma'am, I don't recall any lobbying on behalf of WalmMart during that time period. And between 1993 and 1997, if you could, would you detail what your lobbying activities have been for Waleart? A The lobbying activities I've been involved with have related to my duties as Chairman of the Arkansas Workers' Compensation Commission. I mean, Chairman of the Arkansas State Chamber Workers' Compensation Section.- I apologize. But they - in that process, I'm registered as a lobbyist for Wal-Mart, because I was employed by Wal?Mart during a portion of that relevant period, but there have been no oversight -w there's been no oversight of any activities that I've been involved with in workers' compensation within the state of Arkansas by any representative from Waleart. They don't ask me about the issues or what's going on. They have allowed me the opportunity to work with the Chamber of Commerce in the duty as Chairman of the Workers' Compensation Section. So, I'll understand, am I to understand that because you take a position on an issue, or a piece of legislation as a lobbyist registered for Wal?Mart, that doesn't necessarily mean that that's Wal-Mart's position, because there's no oversight KAY BUTLER, ccn, (501) ass-ai34 you? A No one within Wal-Mart in a position at an officer level has maintained oversight on any of these issues. Well, what about below an officer level, does anybody maintain oversight? A No, ma'am. I mean, I cannot recall anyone asking me to do anything from Waleart on any issue related to workers' compensation in the state of Arkansas. Periodically I may have discussed it with someone, communicated with someone about what was going on, but I do not recall anyone communicating a position to me from Waleart. Did anybody ask you from Wal?Mart, at a position below officer level, not to do anything for Waleart? A I do not recall that. Did anyone at an officer level position ask you not to? A I don't recall any requests like that. Now, We've taken a deposition in this case of Marcus Levine or Leveen, [sic], however you say his name, MR. LAVEY: Devine. BY MS. PULLIAM: w? who was the current Governor's Liaison to the Workers' Compensation Commission, and his testimony was that he had had meetings and had met with you relating to workers' compensation issues; is that correct? A My recollection of communication with Marcus was at the KAY BUTLER, CCR, CVR (501) 868?81?4 time of a meeting that was called for the Workers' Compensation Committee of the Arkansas State Chamber of Commerce in which a number of issues were discussed related to the erosion of Act 796. Is this meeting that you're talking about the erosion of Act 96, with the Chamber? A Act 796? 796; is it ?m is this meeting with the Chamber? A Yes, ma'am. This is a meeting of the Arkansas State Chamber Workers"Compensation Committee. At that time, there were several presentations made concerning the erosion of Act 796. Marcus Devine was in attendance at that meeting. At some point, I don't recall whether it was a break, or at the end of the meeting, he did come up and talk to me and we talked very, very briefly and the gist of the conversation was concerning the erosion of the Act and by the "Act," I mean Act 796. How many members are on that committee? - A I don't have that number with me. I mean, that's available; that number could be had. I just don't have it. Just approximately? A Oh, there would be in excess of fifty members. And this was just a committee meeting, it was not a meeting of the entire State Chamber? A No, ma'am, it was a committee of ?w a committee.meeting of the Workers' Compensation Section. KAY BUTLER, con, 568-9134 you recall when that meeting was? A It would have been October or November of '97, sometime in that time frame. And was this the first time you had ever met Marcus Levine? MR. LAVEY: Marcus Devine. BY MS. PULLIAM: Devine, I mean. A I may have met him another time. I don't recall that. He may have attended another meeting that I attended. I don't recall anything specifically related to another communication, but I may have met him. Now, I just want to have some history of your relationship with the government of the state of Arkansas in relation to this Chairmanship of this Committee that you had; prior to the current Governor, who did you interface with in the Governor's office, in the Tucker administration? A I did not personality interface with very many people in either administration. During the Tucker administration, I was involved in negotiations and Governor Tucker participated actively. In fact, we were in a board room and Governor Tucker was involved in each of those negotiating sessions. Okay. So, this is negotiations around the Act? A Correct. Okay. Other than - and we'll talk about that in some KAY BUTLER, CCR, CVR (501) sea-8134 291 detail, but other than that particular instance, was there anyone who was a staffer in the Governor's office in the Tucker administration with whom you regularly met with and discussed what the Chamber was doing and what they were thinking and A Not that I recall. Okay. And going back from Tucker into the Clinton administration, was there any staff person in the Clinton administration with whom you regularly shared with what was going on with the State Chamber of Commerce? A Not that I recall. Now, you said earlier that you were active in the passage of or as a representative on behalf of Act 796. Why don't you, for me, just describe how you would describe your participation during that time period when the Act was being formulated and passed? A I was requested as a representative of business to participate in the review, analysis, and negotiations related to Act 796, particularly with the members of the Senate that were called upon by Governor Tucker to participate in the negotiations. Okay. So, can I take it to mean that when you say, "review," that would sort of let you out of any participation in the drafting of the legislation? A I participated in some of the redrafting. Okay. KAY BUTLER, ccn, CVR (501) 868f8134 - . the legislation as negotiations occurred. So, it's fair to say then that when you at the point in which you got involved, there was a piece of legislation that was already drafted that you did not participate in the drafting of, and then you got involved at some point in redrafting? A Prior to the negotiations, I had participated in review and recommendation with respect to the initial draft. Okay. So I'll have a time frame, when is the first time and how did you get invited to participate in this process? A I was invited through the Arkansas State Chamber of Commerce. Okay. A And I don't recall the specific time period, I apologize, but it would have been '92. Okay. And where would you have these meetings in which you would review and make recommendation? A Well, some of the review occurred in an office that I was occupying at the time. Some of the conversations occurred over the phone from that office at the time. Where was the office that you A In Bentonville, Arkansas. Okay. And was this a Waleart office? A No, ma'am. The - at the time I began participating with the Chamber in this process, I was not a Wal-Mart employee. I KAY BUTLER, can, CVR 859f3134_n private practice in Bentonville, Arkansas. Okay. And so, were these ?w these meetings held in your private law office? A The meetings that were held where a number of people involved in the same process of reviewing, and evaluating, and making recommendations concerning Act 796 ?w what ultimately became Act 796, those occurred at the Arkansas State Chamber of Commerce. And were just people from Northwest Arkansas involved in that, or Were there people from all over the state? A People from all over. Joe Purvis was very active in that process and was a spokesman for the reSpondent community and a significant arm of the business community at that time, and made significant recommendations. Who else was involved? A I don't recall. Gary Hauser was involved. I mean, he was obviously involved. I don't recall all of the players involved, but Gary was the Chairman at the time of the Workers' Compensation Committee for the Arkansas State Chamber of Commerce. Any other people that were involved? A There were, but I just ?w I could get those names for you, but I don't have them off the top of my head. I would appreciate that. But would it be fair to say that you and Joe Purvis, and Gary Hauser were the major players? KAY BUTLER, con, CVR (501) 868-8134 were among the group. Okay. A We were among the group, but there were other players involved. Okay. A Now, as far as negotiations, I was a participant in the negotiating sessions, but there were other people that were active in the negotiations. Now, you said that you were active in the negotiations particularly with members of the Senate? A Yes. At that time I was invited to actually participate in the negotiating sessions that were held. Prior to that time, my participation had been through evaluating issues for revisions or legislation and making recommendations. At that time, I was asked to actively participate in the negotiating sessions. And who were the parties that were negotiating? A From the Senate, Senator Beebe, Senator Dowd, Senator Harriman, I believe. You could ask someone else and they could let you know the balance of them, but those were m? Senator Dowd did a lot of the talking and had specific issues that he wanted addressed, from my recollection, but I don't recollect what exactly they were. Okay. What were the interests interest groups that were represented in the negotiating sessions other than the KAY BUTLER, ccn, ?501) 863-8134 State Chamber of Commerce? A From my recollection, the Senate participated in the negotiations with then?Representative Wilson, and members of the business community, and there was always a labor representative involved in the sessions, and I believe we I believe there was a representative at that time of the Trial Lawyers Association, the Arkansas Trial Lawyers Association. What about the insurance community, were they represented? A Only through the Chamber participation, as far as I recall. Okay. A That may be incorrect. I just don't recall who was sitting there. What about A I don't recall an ASIA representative being present during the sessions. And at some of these sessions, was Governor Tucker there? A Most of the sessions, Governor Tucker attended. Anyone else from the Governor's office? A There may have been someone else; I'm not sure who. And was Representative Wilson the only Representative involved? A From my recollection, yes, but I may be incorrect on that. At the time, I was brand new in this business as far as participating in anything legislatively. I had my role KAY BUTLER, con, CVR (501)?868e8134 34% previously had been very ancillary to the process. So, I was brand new to even participating in something like that, and I just don't recall who all the players were. Okay. Do you recall who the major players were from the business community? A I listed those earlier; Gary Hauser represented the Arkansas State Chamber of Commerce, Ron Russell was involved from the Arkansas State Chamber of Commerce and Joe Purvis? A Joe Purvis. There were they were the primary business Do you recall who the major Labor players were? 1 A I don't recall who attended each session, but I do recall 5 that there would be a representative from Labor attending, but I don't recall who attended each session. Do you recall who the major player or players from ATLA were? A No, but I remember that there was a communication about ATLA or about the trial lawyers in there at one time, but I don't know who was representing ATLA or whether they actually represented ATLA or were just communicating about ATLA. I just don't recall that specifically. Okay. You said that Mike Wilson was a representative who was there in the negotiations, had you ever worked with him before? KAY BUTLER, can, CVR (591) 369-3134 .MFM Not that I recall. Is that the first time you had met him? A I believe it Was during that process. And how would you describe your working relationShip with now-Commissioner Wilson during that period of time? A What do you mean by that? How would you describe - A Was it collegial, you mean? Well, no, I'm not I'm just what did youwall do together I mean, what did you do? A Well, he was a sponsor for the legislation and participated in the negotiations over what the package of legislation that he was sponsoring would ultimately result in. And he was a strong advocate for his position on what the legislation should entail. I participated with that group. To recall specific conversations with him at the time, I don't recall those. Did you have any input in the selection of Representative Wilson as the Commissioner as the Commissioner position which he now holds? A Did I as Chairman ask the Committee to recommend him or - Any participation at all; did you in any way participate in his selection? A I participated in a recommendation that the Chamber made that he be the Employer Representative. KAY BUTLER, ccn, 363"3134. Okay. And tell me how that came about? A The m? our understanding as a Committee was that he may have an interest in serving as their Employer Representative on the Arkansas Workers' Compensation Commission. And how did you find that out? A I don't recall how it was communicated, whether someone at the Chamber communicated that to me, or whether Mike and I talked about it. I don't recall a specific conversation with Commissioner Wilson about that, but we may have talked about it. But at the time, we were very encouraged as a group by the possibility of having someone so knowledgeable, experienced, and committed to the best interests of all parties involved in Workers' Compensation participate with the Workers' Compensation Commission as the employer representative. We made a presentation to our Committee and our Committee made a recommendation to the Arkansas State Chamber that we fully support Commissioner Wilson, or then-Representative Wilson in securing a position with the Arkansas Workers' Compensation Commission as the Employer Representative. And so, then what steps did you take to implement that recommendation, to get it done as we say? A The steps taken after that were taken by members of the Arkansas State Chamber of Commerce at the time, Lee Pittman and Ron Russell. And before we get down to what Lee Pittman and Ron Russell KAY BUTLER, ccn, (501) 868-8134 did; what did you do with that recommendation, did you take it to anybody else? A As in with the members of the business community, yes. I communicated consistently with members of the business community that the Chamber of Commerce supported Commissioner Wilson wholeheartedly. Now, who are these members of the business community that you communicated this with? A I don't recall the specific people, but periodically, individuals within the business community called. And you don't recall any of them? A I don't recall specifically on this subject, but I do recall that there was a general communication at the time that anyone I had the opportunity to speak with from the business community and communicate our support of Representative Wilson, we did it. Did you make any communications in writing to members of the business community requesting action on behalf of their part to take action on behalf of Representative Wilson? A I don't recall doing that. Do you know and you may not know, what Lee Pittman and Ron Russell did? A I don't recall any specific knowledge of what they did. Did you have any conversations with anyone in the Governor?s office about the implementation of the Chamber's KAY BUTLER, can, ova (591) 868-8134 recommendation? A I don't recall specific conversations with anyone on the Governor's staff about that. What about with the Governor himself? A No. Did you have any conversations with anybody at Wal?Mart to request that they take any actions? A No, ma'am. What about anyone at A I probably communicated with Bill Austin who is a member of ASIA and also serves on the Workers' Compensation Committee for the Arkansas State Chamber. And where does Bill Austin work? A He's a I don't recall his company name right now, but he's ?w he's a member of the business community in Pine Bluff. So, he's he has his own business? A No, he is an employee of and I don't recall. During this period of time, the company name has changed due to a buy? out at one time, and I just don't want to incorrectly state that name. Do you know the former company name? A I'm trying to recall it now, and I just don't recall it. I may recall it before this deposition is over. If I do, I'll communicate it to you. Okay. What about Commissioner Coffman, when did you first KAY BUTLER, ccn, (501) 868-8134 meet him and in what manner? A He - he was appointed. Do you recall the day he was appointed? Do you?all have that information? We have it and Jack Lavey will know it right off the top of his head, but I don't recall it. MR. HOLMES: Not after you scheduled this deposition the morning after the election, Jack can't remember. He stayed up all night. THE WITNESS: If somebody could help me with that, I could MR. LAVEY: December 19, 1996. THE WITNESS: Okay. MR. HOLMES: He had to look it up. He didn't know it off the top of his head. Let the record reflect he had to look it up. MR. LAVEY: Right. THE WITNESS: If that was December of 1996, then sometime early in '97, I believe, they were ?w the Commission was testing a video hearing platform for handling hearings in some of the remote areas within the state. And, I think, this particular test related to Harrison. BY MS. PULLIAM: You're talking about the city of Harrison and not the Judge? KAY BUTLER, can, .17, Harrison, Arkansas,; yeah. In Harrison, Arkansas. I think the test was with Harrison, and the test linked in a group from really around the state, as I recall, in Fayetteville. And I was invited to come up and view that hearing. That's the first time I recall meeting Chairman Coffman. So, did you have any a- even if you had not met him before, did you have any input, in any way, into his election? A The Arkansas State Chamber of Commerce supported Max Koonce for the Chairmanship, and I participated actively in that recommendation and the Committee vote that ultimately recommended Max. Okay. When the Committee was selecting Max Koonce, did they were they making a choice between Eldon and Max, or was Eldon just not part of the equation? A They were making a recommendation as to who they felt the business community would support for a position as Chairman. Was Mr. Coffman considered at that time by that Committee? A There were discussions about Mr. Coffman at that time. There was not a formal selection process, as I recall, that would have included anything other than a meeting communicating potential recommendations and a vote on any recommendations. I do not recall a specific selection process. But the Chamber Committee did recommend Max Koonce as a group? KAY BUTLER, CCR, CVR Correct. As and official position. A Correct. And you took actions to make that happen? A What do you mean by took actions to make that happen? Well, did you talk to other members of the business community like you did on behalf of Wilson? A Oh, yes, ma'am, I sure did. And did you write letters on behalf of Koonce? A No, ma'am. Did you have discussions with the Governor about A No, ma'am. Did you have discussions with anyone that you thought could influence that selection, other than members of the business community? A I'm sure I did, and I'm sure I had communications with a number of people out there. Those people would ?w a lot of those people would have been involved in the Committee at the time, in the Arkansas State Chamber WorkersI Compensation Committee. I seem to recall a specific conversation with Don Allen who directed the Poultry Federation. And I recall having a conversation with Tatum, with Tyson's, about Max specifically. Those conversations involved our faith in Max's commitment to fairly and impartially adjudicate Act 796 and his integrity, which from that group was unquestioned. KAY BUTLER, CCR, CVR this particular time, where was Max Koonce employed? A (No response.) In December of '96. A I believe at the time at Tyson's. Now, I think you said earlier that the first ?n that you, at least, went to law school with Ms. Harrison? A Correct. Did you know her MR. HOLMES: Janet, if you're changing subjects, we've been going a little over an hour, and I think I'd like for us to take a break. 1 MS. PULLIAM: I'll be happy to take a break. I was just pushing, because I was the one that was late. MR. HOLMES: Well, I don't want to interrupt you, but I know everybody's tired, and we've been going a little over an hour and it looks like you're changing topics. MS. PULLIAM: Fine. (OFF THE RECORD) BY MS. PULLIAM: Before we move on to the new area of inquiry I was getting ready to go to before we broke, I've got a clarification question or two. I want to make sure that you and I have an KAY BUTLER, can, (501) 368e8i34 understanding that you are going to provide me the names of the people that are on the committee for the State Chamber of Commerce Workers' Compensation Committee; is that right? A I'm going to look for you. I will see what I can do to find the names during this time period. Right. A If I have anything. I do not have a written document; if I did, it would be in this stack. Okay. A But I'm going to see if, you know, I have anything out there, if I can recall peOple on the Arkansas State Chamber Workers' Compensation Committee, and if I do, I will supply those to Leon. Just give them to Leon. A And at that point in time, I'm sure he will give them to you. MR. HOLMES: I will. THE WITNESS: So but that's what I will do and be glad to see what I can find. BY MS. PULLIAM: That will work. And when you A Can I clarify one other thing for you? Sure. A Because I did recall at the break one other person that had a significant involvement with Act 796 and that was LaDonna KAY BUTLER, can, CVR (591) Bornhoff. Okay. A And I don't know how I could have left her out, but she was an attorney that had a significant involvement in the original drafting process, as far as I recall, in the negotiations and in any redraft. And who did she represent? A The Chamber. The Chamber. And what about Bob Trammell? A He may have been involved, I just don't recall his involvement being near as active as what I described. As LaDonna? Now, when you are asked to -u A I need to let me go back and help w? the involvement there, LaDonna was very involved, Joe Purvis was involved. In fact, I believe he spoke on the floor of the Senate at the time. Now, those two were very as attorneys, were very, very involved in the drafting portion. Does that clarify that some? Yes. A Okay. When you were asked to work on issues with the American Legal Exchange Council A The American Legislative Exchange Legislative Exchange Council, are you paid by Wal?Mart when you do work for them? KAY BUTLER, CCR, (591) 868'El34 . you mean do they dock my salary for going? 20 Right. They don't dock my salary. Do they pay for your trip? My travel, yes. :0 And your lodging and meals? Yes. And some of those occasions, a portion of it has been paid by the Council. The Council? A Yes, but I don't recall specifically when. Okay. And what about the Aspen Institute, are your expenses, travel, et cetera, paid by Wal?Mart? A Wal-Mart pays for that. And what about the California Retail Association? Wal?mart pays the travel. And what about the Oklahoma State Chamber? A Wal-Mart paid the travel, I'm sure. I don't recall that specifically, but Wal?Mart should have paid the travel. Do you get any remuneration directly from the Chamber of Commerce for the work that you do on the Committee? A No, I do not. Do you get any expenses reimbursed by the Chamber? A I don't believe I've ever requested any expenses be reimbursed. So, when you do work on behalf of the Chamber, you are KAY BUTLER, con, are your expenses paid by WalmMart? A Yes. And a? A And Wal-Mart pays dues To the Chamber? A To the Chamber and Wal?Mart has paid dues to other organizations. I don't recall specifically the amount of the dues or what the participation level is there, but Wal?Mart pays dues. Now, when with your oversight responsibilities for CMI, the wholly?owned subsidiary that we talked about, do you have lobbying duties for them? A Are you talking about today, as of right now? Yes. A Okay. I'm no longer in the position I was in at the time. Okay. Have you had lobbying responsibilities for A I have participated in activities such as I described earlier on behalf of CMI, yes. And are you registered as a lobbyist on behalf of CMI as well as Wal?Mart? A No. Okay. Now, moving on to Harrison, we established that you went to law school with her, and I think that I was getting 1 ready to ask you if you had known her before then? A Before law school, no. KAY BUTLER, can, (501) 866-8134 471 So, prior to law school, you had no relationship with her at all? A No. Did you, prior to law school, know Paul Harrison, who is her husband? A No. And did you meet both of them in law school? A I met Eileen during law school, we had a number of classes together. Paul, I believe was after law school. He may have been going at night. Okay. A And I believe I I believe I met him after law school. So, you had a couple of classes with Eileen. Other than having classes with Eileen, did you have any kind of relationship with her in law school? A What do you mean by a relationship? Were you?all friends A Did we communicate at all? w? in a study group, did you ?w A I don't recall being in a study group. We periodically talked, but not w- mainly just cordial communication. Colleague to colleague? A That?s right. Did you form any impressions of Eileen while you-all were in law school? KAY BUTLER, can, CVR 1591? 393-3134 No. And when did you first become involved with her in a professional relationship that had to do with her working her work at the Workers' Compensation Commission and your work as a lawyer or whatever? A I don't specifically recall ever being involved with her in that capacity. Did you ever appear in front of her as an attorney? A I may have. I mean, it's very possible. I don't recall any specific appearance. Did you ever - are you aware of any of her opinions? A Yes. Can you tell me which opinions, if any, you're aware of? A The primary opinion I'm aware of that created a significant amount of controversy within the business community is the Reddick decision? Gkay. And before we go into the Reddick decision, prior to the Reddick decision, were you aware of any particular opinions of Judge Harrison? A Specific opinions? Right. A I may have seen some, but I don't recall the particular cases. And don't recall I just don't recall the opinions. Okay. A So, I may have been aware of some, but I do not recall any. KAY BUTLER, CCR, CVR (501) 868-8134 Prior to your ?a prior to the Reddick decision, had you formed any opinions about Judge Harrison's judicial independence? A Not about her w? what do you mean by judicial independence? Well, about the way in which she decided decisions? A Well, I felt like prior to the Reddick decision, I felt like she was one of the more liberal members or more liberal ALJs on the Arkansas Workers? Compensation Commission. And I'm not trying to be flip at all, but I want the record to have a definition of what liberal ALJ means to you? 3 A It would be to me an ALJ that would liberally, rather than 1 evaluate and decide cases under Act 796. conservatively, Okay. And can you give me some specific examples of what would be a liberal decision under Act 796 rather than a conservative evaluation? A The Act 796 calls for strict construction Okay. A - where a Judge made a decision in contravention of strict construction. That would be the type of example I'm talking about. Prior to the Reddick decision, can you give me any examples of cases for which you were aware in which Judge Harrison had made a decision that was not within the strict construction evaluation of the Statute? KAY BUTLER, con, not recall Specific cases prior to the Reddick decision. Now, are you aware of any opinion are you aware of any rules and regulations of the Workers' Compensation Commission that Judge Harrison violated? A No, ma'am. Have you ever either conducted an investigation or been provided with information that gave you the information of what her reversal rate was by the Commission? A I do not recall that. I just don't recall it. Have you ever been provided any information or, for that matter, conducted a ?n let's do this that was two questions in one. Let me go back and the first question should have been: Have you ever conducted an investigation that would allow you to know what her reversal rate was? A I have not personally conducted an investigation to know that. And have you ever been provided an analysis of her reversal rate that was conducted by anyone else? A I don't recall that. An analysis d? I don't recall that specific document or any or a document on that necessarily. I do recall discussions about her reversal rate, and w? but I don?t even recall the specifics of that. And do you recall who you had these discussions with about her reversal rate? KAY BUTLER, CCR, CVR (501) 868-8134- not. Did you have discussions about her reversal rate with Mike Wilson? A No. 10 Did you have them with Eldon Coffman? Not that I recall. Did you have them with Marcus? 0 Not that I recall. Did you have them with the Governor? No, ma'am. Did you have them with the Governor's Chief of Staff? I don't no, not that I recall. I don't recall having a discussion with those folks. Okay. Now, prior to Ms. Harrison's decision in Reddick, when you had made an opinion that she was liberal rather than conservative, if you had not read her opinions that you can recall and you're not aware of any rules of the Workers' Compensation that she violated, nor her reversal rate, can you tell me what facts you used to form the underpinning for that judgment? A I had seen opinions during the relevant time period just periodically. I had participated either through personal experience in litigating cases, or through experience of counsel that represented Wal-Mart and other companies in discussions and those were the bases for the opinion. When you KAY BUTLER: COR. CVR hear lawyers talk, and I had participated in discussions involving respondents' counsel. In addition to that, I had seen, periodically, opinions, but no organized thought process. I just had seen that, but I hadn't w? prior to the Reddick decision, that would have been my take. That's what you asked me for. Right. A That would haVe been my opinion. There was no firm and solid basis for that opinion; I had just seen things over time that would lend me toward that opinion. Would it have been your opinion that she would have ruled on behalf of claimants more often than she did on behalf of respondents? A Probably, but I don't recall eVer thinking about that. I just do not recall, prior to Reddick, ever thinking abOut that. Probably - in fact, I do not recall you asked me what my opinion would have been. That was the question and I answered that, but I do not recall ever thinking about whether Eileen Harrison was liberal or conservative prior to the Reddick decision. I just don't recall that thought process at all, but had I, based upon what I saw, she would have been, in my opinion, couched as someone that's probably more liberal than conservative. Did you make that judgment about any other Administrative Law Judges, other than Eileen Harrison? KAY BUTLER, ccn, Now, you mean That they were more liberal than conservative? A You mean did I go through that thought process at the time? Yes. A It would be a similar circumstance to Judge Harrison. I may have thought it at the time. I don't recall any organized effort within my own mind to think through all of that at the time. And we're still talking about prior to Reddick; right? We are; we're talking about prior to Reddick. A Okay. Everything I've discussed, we're talking about, I'm assuming is prior to Reddick. Okay. A On this discussion. And then I'm And now we'll go to Reddick. A Okay. There you go. Reddick was decided, how did you first find out about it? A I don't remember who called me, but there were a number -w I received a number of calls from the business community about Reddick. The basis for that discussion was that a fundamental tenet of Act 796 was the provision related to illegal use of drugs, and where that may fit into the philosophy of compensation for occupational injury. That was a very emotional subject and had been within the business community since 1991. As soon as Reddick came out, people were talking KAY BUTLER, CCR, CVR (501) 868-8134 about it. And that's w- I don't remember who specifically called me, but I had a number of calls on Reddick. Now, so I'll understand, you're telling me that a provision in the Act, that which dealt with the use of illegal drugs and its connection to occupational injury was a significant piece of Act 796? A Within the business community? Yes. A There was a segment of the business community that that was the most important provision. I mean, that provision was paramount to a number of other provisions. As a matteraof-fact, drug?free workplace was so paramount from '91 through '93 that a good portion of the business community was talking about rerunning a drugwfree-workplace-type bill with or without workers' compensation reform. This was a fundamental tenet of a commitment within the business community not to allow injury or harm to result from anyone utilizing drugs in an illegal way within the workplace. And so, immediately after the decision came down, would it be fair to say the day, or within a day or two, you began to get calls from members of the business community? A I can't remember the specific time period, but it was within, maybe, a few weeks. It takes a while for that information to get out. Well, if the Reddick decision came down on July the 14th, KAY BUTLER, CCR, CVR (5?11m353'3134 1997, within a week or two from that you would have been involved in the A Correct. Would it be fair to say that there was an uproar in the business community about the decision? A What do you mean by uproar? Lots of activity, lots of interest? A There was a lot of communication about it. Some of that communication was emotional, but I - there was a lot of communication within the business community about that decision. And when you say some of the communication was emotional, what do you mean by that? A Well, some people were fundamentally committed to a drug-free workplace and within the community of employers that that commitment had been paramount to their support of reform, then that piece of the community was very, very frustrated. Can you define that piece of the community for me? A Well, I don't recall the specific people involved, but the timber industry, I think, was very interested in a drug free workplace, and they supported that process throughout. It seems like I recall a conversation at some point with the manufacturing community, I know, was involved. And I'm not sure specifically if I stated it may be incorrect, but the manufacturing community was very, very interested in a KAY BUTLER, can, CVR (591) 953'3??4 drug-free workplace. What about Wal?Mart? A We've been interested in a drug?free workplace, but - and very interested, but our risk associated with a drug-free workplace were not at all anywhere anything compared to manufacturing and some of the other areas, like forestry. Because our most of our people are not within Wal-Mart, most of our associates are not occupying the type of heavy machinery that will provide a significant risk of harm to others if they operate that machinery when they're impaired. Now, Wal~Mart never made an evaluation on w? internally on that subject that I'm aware of. Personally, I'm absolutely committed to a drugwfree workplace. And after the Reddick decision came down, did you have meetings with members of the business community about the decision as well as telephone conversations? A The Reddick decision was a subject of conversation in our Chamber meeting in the fall of '97, but it Was not the purpose. It was not even on the agenda as I recall for that meeting. I don't have a copy of the agenda, but I don't recall it being on the agenda. But a number of people in the business community by September - by October that October/November time frame were talking about that decision. So, in the fall of '97 at the Chamber meeting, whether it was on the agenda or not, the Reddick decision came up? KAY BUTLER, ccn, Yes, but not formally. Just a number of people were talking about it in discussion, but not as a formal part of the meeting as I recall. And was that the meeting in which you - in October or November, in which you first met Marcus Devine? A Correct. And when you and Marcus talked at that meeting, did you? all discuss the Reddick decision? A I don't recall discussing the Reddick decision with Marcus at any time. And so, we've talked about your opinions of Judge Harrison prior to the Reddick decision, do you want me to ?w can you tell me how your opinion of Judge Harrison changed after the Reddick decision? A Prior to the Reddick decision, I had no issue, professional or personal, with Judge Harrison. After the Reddick decision, my personal opinion was that Judge Harrison abrogated her responsibilities as an impartial trier of fact and became a judicial advocate based upon the fact that on her own motion, sua sponte, she made a decision under a circumstance where, without objection, drug tests had been entered into the record to find unconstitutional the provisions of Act 796 related to the use of illegal drugs, and narcotics, and intoxicants within the workplace. That was my personal opinion. KAY BUTLER, con, CVR .. And you read the Reddick decision yourself? A At the time, yes. I have not gone back to refresh that memory, but at the time I read it. And did you make the judgment that the decision was made sua sponte on your own? A A Correct. Have you at any time sought any independent legal counsel as to whether or not they would concur with your judgment that that decision was made sua sponte? A At the time, a number of the lawyers involved in groups that I worked with were of a similar opinion. I don't know what their opinion might be today, but a number of lawyers that I was in contact with at the time, or communicated with at the time, were of a similar opinion, and they generally expressed it to me. And were all these lawyers attorneys who represented interests of the business community? A They were attorneys similar and I don't recall a specific discussion with Joe Purvis, but they would be very similar to Joe Purvis that I had contact with over time. Are you aware of any other ALJs that have rendered decisions that have abrogated portions of any Workers' Compensation Statute? MR. HOLMES: Say that again, Janet, please. THE WITNESS: I need you to clarify that for me KAY BUTLER, con, because ?w MR. HOLMES: I didn't hear it all. BY MS. PULLIAM: I'm sorry. Are you aware of any other Administrative Law Judges that have rendered decisions which have abrogated portions of a Workers' Compensation Statute? A Now, I don't understand what that means in that what I think I said to you, and what I intended to say to you, is not that Judge Harrison abrogated a provision within the Act; Judges do that all the time. They have to make decisions. But that she abrogated her responsibility as a Judge to be a fair and impartial trier of fact. And am I ?w A And became an advocate. Am I fair in deciding that your judgment that she had abrogated her responsibility was based upon her interpretation of the Statute and the law? A No. It was based upon the fact that in a circumstance where, as a Judge, a fair and impartial finder of fact, you would not traditionally, on your own Motion, make a constitutionality decision. At that point in time, she became an advocate for a position rather than a fair and impartial finder of fact. Okay. Now, my question to you is: Are yOu aware of any other Administrative Law Judges, which you have the opinion KAY BUTLER, con, 601 that have, similarly to Judge Harrison, abrogated their responsibility and become judicial advocates? A No, ma'am. Now, when you discussed the Reddick Opinion with all these other lawyers, or whoever these people were that you were - members of the business community, was there discussion about whether or not there would be an appeal of the Reddick decision? A I don?t recall that discussion, no, ma'am. Were you involved in any A But there may have been. I mean, it's been a while, but I don't recall a specific discussion. Were you involved in any way with the decision to, and/or the carrying out of an appeal of Judge Harrison's Reddick decision? A Not that I recall, no, ma'am. Now, tell me if you can, how you know Leon Holmes? 1 A He contacted me to tell me that I may be involved in depositions in this case. And prior to that, you didn't know him at all? A Did not know him. Now, tell me, if you can, beginning with your October or November, 1997 communication with Marcus Devine at the Chamber meeting your recollection of every other time from then henceforth that you had communications with Marcus? KAY BUTLER, ccn, . ?501lw??3-8134 That's the only one I recall. I may have seen him at another event, but I don't recall another communication with Marcus. You never met with him in the Governor's office? A I don't recall meeting with him at the Governor's office, no, ma'am. Did you you don't recall ever meeting with him in the Governor's office? A No, ma'am, I do not. Do you recall meeting with him in Mr. Coffman's office? A I do recall him being there in Mr. Coffman's office. Early, maybe February or March, sometime in that time frame in 1998. Okay. Do you recall a meeting with Coffman, Devine, Carter, Pickens, and Walmsley in November, of '97, in Coffman's office? A I recall a meeting with those people that you named. And if you'll w? I do not recall a- my recollection was that it was early in '98 and maybe not in late w? late in '97, but I could be wrong. But my recollection was that it was the early part of '98 when that meeting occurred. But like I say, if you have some information that you could help me refresh that, I'd appreciate it. I?m just trying to get your memory? A Okay. I - I recall that meeting. KAY BUTLER, CCR, CVR (501) 363-8134 Okay. And A My recollection was that it happened in '98. And tell me what went on in that meeting? A There had been a report prepared by Bill Walmsley. Was this one of the documents that you brought with me brought to me under the Subpoena Duces Tecum? A Yes, ma'am. If you would, could you just take a look through the documents and give me the one we're talking about? A (Witness complying.) Okay. And so the record will reflect, the document that I've been handed is entitled "The Analysis of Commission Decisions Concerning Act 796 of 1993." Okay. The meeting at the Chamber of Commerce related to that document, an analysis prepared on Commission decisions related to Act 796. That was that gist of the meeting. Subsequent to the meeting, apparently communications occurred with Mr. Coffman. I was not involved in the communications in all of those communications, and I don't recall being involved in specific communications with Mr. Coffman during that time period, although I may have. The ?w at that time period, though, Mr. Coffman prepared a response to this document. The meeting that occurred either in November/December, or the first part of '97, or the early part of '98, related to Mr. Coffman's response to this document that I guess you're going to mark as KAY BUTLER, con, Not yet. A u? this document, then, that's titled as "An Analysis of the Commission Decisions Concerning Act 796 of 1993." . Now, so that I'll understand, I happen to know from another document that I have that you're not privy to, that Eldon Coffman was faxed this document on 9~15w97 from Mike Pickens? A All right. Did you have any communications with Mike Pickens about this document? A The only communications I had with Mike Pickens during the time period from '97 until '98, that I recall specifically, and a portion of that conversation did involve that document, was we had an issue within Claims Management, Inc., and within Waleart, with reciprocity for adjuster licensing for particular states around the country and they needed specific documentation from the Insurance Department concerning our licensure and I met with - Is this CMI's licensure? A Yes. and I met with Mike and Lee Covington on that issue. Now, that was after this document had then released. During the course of that meeting, at some point, that document was discussed; not in tremendous detail, but just there was a discussion about the fact that the business community, in KAY BUTLER, ccn, CVR (591)m368+8134 general, felt like the Commission the current Commission was participating in decisions that were causing an erosion to the Act. But, I mean, thatextended discussion on that document. The primary purpose of the meeting was to discuss reciprocity on adjuster licensure. And this information was just brought up during that meeting? A Yes, that's correct. And did you participate in the preparation of this document? A No, ma'am. Do you know who did it? A As far as I recall, Mr. Walmsley prepared that document. And, a long time ago, I've read it, but I haven't read it recently; is it fair to say that this document does just deal with the decisions of the Full Commission and does not specifically deal with the decisions of the A That is my recollection of the document. There's handwriting on here that says, "January through July, six hundred and twenty-three cases out of thirty?eight- analyzed, reversed, ALJs and two cases for compensability, three cases reversed and affirmed in part for respondent." A Those notes on the front ?w Are those yours? A w? are my notes and they're from the presentation that was KAY BUTLER, can, CVR (591) made to the Chamber Committee. Okay. And down at the bottom, it says, "August 1, 1996, to July, 1997, eighty percent of cases of ALJs affirmed." A Those are my notes from the meetings. Do you have any kind of standards of review that you've used in your professional work in risk management and analysis in which you have any kind of figures about what percentages would be normal for ALJs to be affirmed? A No, ma'am. So, you don't have an opinion as to whether eighty?four percent is a good number or a bad number? A Did not, necessarily, at the time. As far as I recall, I was simply taking notes based upon communications by the individuals communicating to the group. Okay. And I'm just asking? A Oh, I know. Okay. A I'm just and I'm trying to answer. Okay. Now then, this information was provided to Mr. Coffman by Mike Pickens, and you didn't have anything to do with that; right? A I don't know how this information was provided to Mr. Coffman. Okay. So, you didn't anything to do with getting this information to Mr. Coffman? KAY BUTLER, CCR, CVR (501) recall, I did not. So, am I to understand then, that the first communication that you had with Mr. Coffman about this document was not about the document, but rather about his response to it? A That's my recollection. And tell me about that? A I participated in a meeting whereby Mr. Coffman provided a document refuting the analysis and in that meeting, there was a significant amount of communication concerning the inadequacy of the analysis. As this is my recollection, the inadequacy of the analysis, the basis for the analysis, and the lack of understanding on the part of the business community concerning his record as a Commissioner. And my recollection is that a big portion of the concern Chairman Coffman had, at the time, concerning the business community's attitude, was that he felt like the business community's attitude was a result dissenting opinions rendered by Commissioner Wilson and one of the takew aways from the meeting was that he felt like he would do a better job in writing his Opinions, so that the business community would understand his position on the issue, rather than relying on a dissenting opinion. So, I?m to understand that he communicated at this meeting that he was going to write decisions which reflected his judgment, rather than allow Commissioner Wilson to just write dissents? KAY BUTLER, can, CVR (501) ., . His communication was that he was going to write his opinions that traditionally, early on, in his participation with the Commission, there was a tremendous backlog of opinions and they were handling things very quickly to expedite the opinion process. At that time, he said that he was committed to continue deciding the cases based upon his judgment, but in that process, in his opinions to detail his analysis, so that the business community would at least understand his analysis concerning and legal position on the issues and how he was applying the law. Now, prior to this meeting in which he was given his w? 1 his response to this, had you communicated directly to Marcus i Devine your unhappiness with the fact that Commissioner Coffman was joining in two-towone decisions with the Commissioner of Labor? MR. HOLMES: I object to the form of the question. THE WITNESS: The answer is no to the specific question you asked. BY MS. PULLIAM: Okay. A I never communicated to anyone, to my recollection, anything about a twowtovone decision or anything like that. The only communication I ever had with Marcus, and as I recall that communication occurred at the Chamber Committee meeting at KAY BUTLER, ccn, 65% the time the analysis that you've referred to earlier was before the Committee, at that time, I communicated to him that it was the impression of the business community that Chairman Coffman was participating in a process that was eroding Act 796, which the business community had worked very, very hard to negotiate in a cooperative effort with members of the Senate and then~GOVernor Tucker. That's my recollection. Would you describe your communication with Marcus at that time as emotional or rational? A The overall communication in the meeting was very emotional on certain areas. There were discussions about objective findings, if I recall, about a number of the other areas in the Act that were emotional. My recollection of my discussion with Marcus is no different than our communication today, which I don't think was tremendously emotional, but I don't know his perception. So you - I'm sure you?ve asked him that. I actually was asking you your perception. What about your communication with Brenda Turner, did you have any communications with Brenda Turner regarding Mr. Coffman's performance? A I don't recall personally communicating with Brenda Turner. I do recall at one point, in 1998, probably the summer of 1998, maybe in the June or July time frame, being involved in a meeting where myself, Ron Russell, and Bill Walmsley Were KAY BUTLER, CCR. CVR (501) Brenda Turner's office. I don't recall ?a other than other than shaking Brenda Turner's hand and introducing myself to her, I don't recall communicating with her at all even during that meeting. I don't recall saying anything, other than "hello," and introducing myself. Okay. And what was the purpose of the meeting? A To discuss, at that time, issues related to the Commission that were still of concern. Was Marcus in that meeting? A I don?t recall Marcus being there. Did you ever meet directly with the Governor to discuss A No, ma'am. Never? l0 3? No, ma'am. This issue? Yes. IV No, ma'am. Of Eldon's performance? 3? No, ma?am. Or lack thereof, depending on your perception, I guess? A The answer to that would be no. Did you ever have any communications with Commission Coffman alone, or it was just you and the Commissioner, about his opinions? A Yes, ma'am. Can you tell me about that? KAY BUTLER, can, don't recall communications about specific Opinions, but I had a conversation with Chairman Coffman that occurred at my office sometime in April of 1998. Can you tell me about that meeting? A Chairman Coffman we had previous meetings, that we discussed earlier, concerning an analysis that was prepared by Mr. Walmsley. Uh?huh. (Nodding head up and down.) A -d and Chairman Coffman's response to the analysis. And Chairman Coffman called me and asked me if he could come to my office in Rogers and talk to me. thhuh. (Nodding head up and down.) A And if my recollection is correct, I was supposed to have met him, maybe the previous week, or something w? or within the previous few weeks for lunch and was unable to do that. And so, he asked that he asked whether he could come to my office and visit with me. Okay. And so, he called you and asked if he could meet with you in your office at Wal?Mart? A Yes, ma'am. And he came in April of '98 and met with you? That's my recollection. All right. A Sometime in that time frame. I don't recall a specific date, but sometime in that time frame. KAY BUTLER, can, Tell me what went on in that meeting; who said what? A My recollection is he again reiterated some of the communications that he had made concerning his commitment to ensuring that he provided opinions that detailed the specifics of his analysis. My recollection is that he communicated his position concerning a conservative judicial philosophy, that he did not intend to be a judicial advocate, but to interpret the law as it exists and is enacted by the Legislature. During that conversation, I communicated my distaste for his handling of the Commission at one point and, in fact, did tell him that in my personal opinion, based upon his performance, he should i resign his position with the Commission. 1 And what did he say when you said that? A I don't recall him replying. I don't think he said anything necessarily in response to that. Now, the conversation did continue and the discussions continued along the lines of, as I recall, his feeling and impression that there was a misunderstanding about his judicial philosophy based upon the desire he had initially, in the early stages of his tenure with the Commission to communicate - to be efficient in his decisions; roll these cases through very efficiently, and by doing that he felt like he had not given the business community the benefit of his analysis. Now, when you asked or gave him your opinion that you believe that he should resign, did you shake your finger at KAY BUTLER, can, CVR 72% him? 1 A I recall pointing at him, but I do not recall shaking my finger at him. Okay. And in the meeting at WalvMart in which you communicated to him that it was your opinion that he should resign, were you acting as a lobbyist? A No, ma'am. Were you trying to influence administrative action? A As in his outcome on future cases, no, ma'am. I was giving him my opinion that he should resign. Well, is a resignation of a public official an administrative action? 1 A I don't know. I mean, I ?w by definition, I would think it probably would not be, but, you know ?v But in any event, you were telling him that you believed he should resign? A I told him that in my Opinion he should resign. I was not trying to influence an administrative action on his part by telling him that. Now, what I'm assuming administrative action means, and this is my assumption, is some a procedural process where an administrator would cause an action on a third party and not where an administrator would make a decision to resign. Now, A Remember this meeting was called was requested by KAY BUTLER, CCR, Chairman Coffman, and I agreed to participate in the meeting and, when he arrived, had no particular agenda for a meeting. I did not know necessarily the purpose. I assumed that it may be some of it may be related to some of the documents that had been produced and some of the discussion that had previously occurred, but I had no agenda for the meeting. Do you know, prior to the meeting, whether or not Marcus Levine "a Marcus Devine MR. LAVEY: Devine. THE WITNESS: Devine. BY MS. PULLIAM: Had communicated to Eldon Coffman that you were displeased with him A No, ma'am. mu as a Commissioner? A The answer to that would be, no, ma'am. The answer is that you don't know whether he communicated that to him; right? A Yeah. If you're asking me whether I knew that Marcus Devine had communicated with Eldon Coffman about any issue related to dissatisfaction, I'm telling you I do not recall knowing that. But you did know that Marcus was the Governor's Liaison to the Workers' Compensation Commission? A Yes, ma'am. KAY BUTLER, CCR, (501) 353?3}34_ And that in all likelihood, he would have regular communications with him about what the Governor's office was hearing or not hearing, as the case may be, about what was going on at the Commission? A Who do you mean when you say "him"? You said regular communications with "him"? With the Chair of the Commission? A I don't I knew that Marcus Devine was participating in meetings with that I was participating in and assumed they communicated, yes. But I didn't know what about. Now, I want to talk to you about your A Can I give you one other bit of information on that? Yes. A These meetings were communicating the issues. So, the analysis had been completed by April of 1998, the response had been completed by April of 1998, the communications in the analysis reflected some level of dissatisfaction and concern about the erosion of Act 796. Whether Marcus Devine communicated that or not was really not in my analysis. I mean, I wasn't thinking about that. At that time, I knew that the documents had been prepared and that the communication existed. Now, what was the basis of your evaluation of Commissioner Coffman's performance that led you to suggest to him that he resign? KAY BUTLER, can, CVR (501) 868?8134 There was w? there were a number of opinions and you can ?m I received information on Commission decisions and requested information on Commission decisions based upon communications from the business community in a lot of cases. There were a number of decisions related to a number of different issues that were fundamental to business. I reviewed a number of those opinions. I also reviewed dissents on those opinions. There was one particular case that w? and I don't recall the name of it, but where a construction worker had been drinking, went up on the roof, fell through a hole that existed in the roof that was -w it appeared to be obvious, and in that case, the presumption was not honored and there was a significant amount of concern immediately after that decision, as far as I recall. Because it related to the issue of illegal use of alcohol or intoxicants or an intoxication issue involving an occupational injury. I can't tell you how fundamental that tenet was to a number of the people in the business community. And I recall that case specifically. I mean, I don't recall the name, but I recall a discussion of that case. But that's the basis. And so did it ?u did that case have the same kind of effect on the business community as the Reddick decision? A No, because it wasn't sua sponte, but it still had an impact and it still caused grave concern. And there was discussion among members of the business KAY BUTLER, ccn, (5?1)H863f3134mm community and they contacted you? A Yes, but And it formed the basis of your belief that Mr. Coffman should resign? A Not alone. That decision alone did not form it, but that Was one of the decisions that surfaced as a decision causing an issue within the business community. There were issues with respect to objective findings. As I recall, there were issues with respect to ?w I think there was a permanent disability issue or two that people communicated with me about. So, a number of different issues. Okay. I've got a June, of '98, Opinion that was in the documents, but it's got some handwriting on here that I wanted to ask you about. It says, "Eldon, I do not understand this case. How was it compensable? Steve Carter. I need to set up a call with Eldon on this case." Is that yours? A Well, is there any way we could go ahead and mark some of these documents, so I can We'll have to get copies of them, yeah. A Okay. Can we break and do that? Sure. A I'd rather refer to that by document number if we're going to. It's going to take a while to get copies of all these. Can we go to some other area of inquiry and come back to this KAY BUTLER, con, CVR 86?f8l34 771 while we?re getting these copied.? A Be glad toTHE WITNESS: Can they make copies if you could just make copies of that one document right now MS. PULLIAM: Well, let?s just do them all. We?re going to have to do them all anyway. I'd be happy to pay for the copies, because he doesn't want a- I offered at the break to take these over to Kinko and get them copied, and he?d rather you do it because some of these are his originals. THE WITNESS: Any of these, you can take over to Kinko. My originals, I'm required by law, to retain this file. MS. PULLIAM: Right. THE WITNESS: If you'll just keep these originals here. MS. PULLIAM: I'm going to take some out of here that I don't need copies of because I've got I have that and I have this. I don't need a copy of that. THE WITNESS: You can make them at Kinko's or wherever you want to make them. I'm just required to retain that file. MR. HOLMES: Well, what do you want me to do KAY BUTLER, con, ova (591) then? MS. PULLIAM: Well, if you want to get copies somebody to do the copies of all this MR. HOLMES: The whole set? MS. PULLIAM: Yeah. MR. HOLMES: How many copies do you want? MS. PULLIAM: Just do one for now, just to save time, unless you MR. HOLMES: And that set there, that he says we can take to Kinko's, I'll have someone take to Kinko's. These documents that are his lobbying file, I'll do here down in my office. MS. PULLIAM: Okay. That will work fine. MR. HOLMES: And if youuall want to press ahead, I'll leave it to Mr. Gauger to defend this. If you want to take a break for lunch now, we can do that. MR. LAVEY: I'm just going to leave, but MS. PULLIAM: Well, do y'all want to take a break for lunch and come back in an hour? MS. HARRISON: I think we need to take a break for lunch. MR. HOLMES: How much longer are you going to be? MS. PULLIAM: Probably maybe an hour and a half. And I'm estimating on KAY BUTLER, CCR, CVR (501) 868+8134 MR. HOLMES: Based on that estimate, if we could take a lunch break and finish before 2:30, when the Governor's supposed to be here. MS. PULLIAM: I told whoever I talked to, I'd make every effort to be done by 2:30. (OFF THE RECORD) BY MS. PULLIAM: Okay. We?ve talked about the communications that you've had with w? regarding the Chair of the Commission, and now I want to focus on communications that you had specifically concerning Judge Harrison? A Okay. As an A Okay. If you could, if you could give me some kind of time frame and focus in which your attention shifted from the Commission decisions to the decisions of the individual MR. HOLMES: Object to the form of the question. THE WITNESS: I don't recall a shift as you're describing it. BY MS. PULLIAM: Okay. A If you want me to talk about my communications with anyone related to the Commission concerning Eileen, I can describe that for you to you. KAY BUTLER, can, (591} 853+8134m that. A Okay. Why don't we just start off with each Commissioner and tell me what communications you had with Eldon Coffman about Judge Harrison. A Okay. I only recall one. Okay. A It occurred in the April meeting where Eldon called me and asked if we could meet and we met at my office. Okay. A During the course of that conversation, at some point, and I don?t recall at the exact point in time. I don?t recall the sequence of communications, but during the course of that conversation, I mentioned to Eldon specifically that the business community was very concerned about two Commissioners two ALJs, Judge Harrison and Judge Ellig. Okay. And did you communicate to Carter, [sic], that A To Carter? I mean, did you communicate to Coffman that you thought that Judge Harrison and/or Judge Ellig should be terminated? A I communicated to Chairman Coffman that the business community was asking that one of those two Judges be terminated. Okay. A At that time, I Specifically communicated to Chairman KAY BUTLER, con, Coffman concerning Judge Ellig that I did not understand the details of why the demand on Judge Ellig was out there. I did not know the specifics or understand the specifics of why the business community was calling for Judge Ellig's termination, but Judge Harrison, I did understand those specifics. And what were they? A With the business community, it was the Reddick decision, but I don't recall with Eldon specifically talking about the Reddick decision; we may have, but I don?t recall that. But you did tell Mr. Coffman that you wanted that the business community believed that either Judge Mike Ellig or Judge Eileen Harrison had to go? A Now, that's not a quote; right? I'm reading you what I'm reading you from Mr. Coffman's page twenty-two of his deposition, in which he said, ?Now, also other that? -w to a question: "Other than Mr. Carter, did anybody from ASIA at or about that time, also tell you that either Judge Mike Ellig or Judge Eileen Harrison had to go?" Answer: Question: "Just Mr. Carter?" "Well, and I think there was a conversation that was part of the same group that they were separate with Mr. Walmsley." MR. HOLMES: It's a quote in answer to some KAY BUTLER, can, question. MS. PULLIAM: Right. MR. HOLMES: It's not from Mr. Coffman. THE WITNESS: Okay. The quote was from the question, and the my recollection is that I did not use those words. BY MS. PULLIAM: Those words A Correct. But you did say that the business community felt that either Judge Ellig or Ms. Harrison should be terminated? A Correct. And you didn't know why they wanted Ellig terminated? A I did not haVe the Specifics, and I communicated that to him at the time, on Judge Ellig. But you knew ?w A I did not have - w- you knew why they wanted Judge Harrison terminated, which was the Reddick decision, but you don't know whether you communicated to him or not? A I know we discussed judicial advocacy; okay, at the time. That the business community felt that Judge Harrison had abrogated her responsibilities as a Judge and become an advocate, and because of that u- those responsibilities because of that abrogation of responsibilities she should be KAY BUTLER, can, CVR (501) 868-8134 terminated; she could no longer serve in the capacity as a Judge. I remember that communication then, that's the gist of the communication from the business community. I did not have the same information on Judge Ellig, but I do not recall specifically talking about the Reddick decision. Now, was the communication that either one of them should be terminated or both of them? A The communication was that the business community was calling for one of these folks to be terminated. That I had heard those names out there of ALJs that the business community felt like should not serve as an Administrative Law Judge in the state of Arkansas for Workers' Compensation. That was the communication as I recall it. Now, in this instance, who is the business community, the same people we've been talking about; the Chamber A Arkansas State Chamber of Commerce, and the people that were communicating with me in my position as Chairman of the Workers' Compensation Commission of the Arkansas State Chamber. And did he communicate to you which one of these two Judges he was going to terminate? MR. HOLMES: Object to the form of the question. THE WITNESS: I don't recall any discussion about that subject that w? I don't recall any response. I mean, it was in the u- this meeting was it appeared to me a factufinding?type meeting KAY BUTLER, can, CVR (501) 853'3134.m his part, where he was looking for information about what's wrong with the relationship between me, as the Chairman of the Commission, and the business community and looking for issues that were out there with the business community. That was an issue that was communicated at that time. BY MS. PULLIAM: And did you did he communicate to you, at that time, whether or not he agreed that one or both of these Administrative Law Judges should be terminatedrecollection. i And was your communication to him that either one of them could be terminated, it didn't matter which one; it was just they wanted one of them to go? A No. That - no. No? Well, I understood your testimony to be that you said 1 that you communicated to him that the business community wanted either Ellig or Harrison? A My communication to him was that now, remember the context of the communication, that Judge Ellig I don't remember if I said and/or, but Judge Ellig or Judge Harrison needed to go. My communication to him was that I did not understand the specifics with respect to Judge Ellig; I didn't understand that. I did not have that information, so that I could communicate that to him, but I did have an understanding KAY BUTLER, con, the concerns with respect to Judge Harrison. That was my communication. And this was in April at the meeting in which he came to your office in Wal?Mart? A Correct. As far as you can recall? A Yes, ma'am. Did you give him any reasons other than the Reddick decision for the reason that you felt, or the things that you said about the Reddick decision, for the reason that you felt that Judge Harrison should be terminated? A As I said earlier, I'm not sure that I specifically - we specifically discussed the Reddick decision, and I don't recall discussing it. The reasons I gave are consistent with what I've mentioned earlier, and that is that based upon the decision, and it Would have been the Reddick decision, but I don't recall discussing that, that Judge Harrison had abrogated her reSponsibilities as a Judge to fairly and impartially find fact. Because of that, she had become a judicial advocate. That is diametrically opposed, in my opinion, and in the opinion of those that had discussed it with me, to the duties of a Judge in their fact-finding. Now, that's where we were on that opinion and on our position at that time. And at the time that you communicated made this communication to the Chairman about Eileen Harrison, who was an KAY BUTLER, ccn, (501) 86858134 Administrative Law Judge, were you acting as a lobbyist? A No. Were you soliciting administrative action on behalf of the Chair of the Workers' Compensation Commission to terminate Judge Harrison? A I was relaying to the Chairman a communication concerning the opinion of business as it relates to particular And that opinion was that ?w A On behalf two of them should be terminated? A on behalf of the business community, at large. Now, that opinion was that, potentially, two of them should be terminated, but I did not have the specifics with respect to Judge Ellig. Now, after you communicated this to Chair, did you have a similar communication about Judge Harrison, either before or after, with Commissioner Wilson? A Not that I recall. Do you recall if you ever discussed with Commissioner Wilson, Judge Harrison? A I don't think I did. Did you ever discuss with Commissioner Wilson that you thought that Judge Harrison should be terminated because of her opinions? A I don't recall discussing that with him. KAY BUTLER, can, opinion? A I do not recall discussing that with him. Did you ever discuss with Commissioner Wilson whether or not she should ?w she should be transferred to some other position at the Workers' Compensation Commission, if she was going to remain there? A I do not recall discussing that with anyone or let me take that back. I do not recall discussing that with Commissioner Wilson. I do recall a discussion about that among some people in the business community or among a? I recall hearing about that, but I do not recall discussing that with 1 either Commissioner Wilson or Chairman Coffman. Did you offer anyone, for that matter, an opinion as to whether or not that would be an acceptable solution? A You mean when you mean anyone To move her from an ALJ to another position at the Commission? i A I don't recall mentioning it to anyone who would have influence over that necessarily, but I do recall my position being, on that issue, that I would not agree with personally agree with that decision because of the fact that Judge Harrison had made a decision to become an advocate and I felt like, at that point, she was no longer qualified to be an impartial finder of fact. Okay. And did you communicate that opinion to KAY BUTLER, can, (501) 868-8119 Commissioner Wilson? A No. Did you communicate that opinion to Commissioner Coffman? A Not to my recollection, I did not. I don't recall communicating that opinion to him. Did you have any communications with Brenda Turner about Judge Harrison? A I don't recall any communications that I might have had with Brenda Turner about Judge Harrison. I don't recall Does that mean you could have had them and you don't recall? A I meant v? I only recall one circumstance when I was around her, and I don't recall any discussion on my part at all at that time about Judge Harrison. I don't think w? now, I don't think I ever had any discussion with Brenda Turner about Judge Harrison. I mean, I cannot remember the specific words we said, but I don't think Judge Harrison's name ever came up. Okay. Did you have any A In that communication. conversations with Brenda Turner about the Reddick decision? A No. And I think I've already asked you this, but I think you've already stated that you didn't have any communications with the Governor at all about Judge Harrison; is that right? KAY BUTLER, can, .(501) 863-3434 No. No. You did not? A I did not. Now, did you communicate to any of the Commissioners that it was your opinion that Judge Harrison bent over backwards to find in favor of claimants? A No. Did you make any communications to any of the Commissioners that you had either personally, or were aware of personality styles of Judge Harrison that made her unsuitable to be an A What do you mean by personality styles? Just did you use those words; I don't know what it means either. Did you make any complaints to either of the Commissioners that are defendants in this lawsuit about any kind of personality trait that Ms. Harrison had? A No, I don't recall making any statements with respect to personality traits, but I'm not sure I know what you mean by that. Okay. Did you make any complaints to either of the defendants in this lawsuit that about the manner in which Judge Harrison managed her docket? A I don't recall making any statements with respect to Ms. Harrison's docket. Okay. Did you make any complaints to either of the KAY BUTLER: OCR. CVR Commissioners that are defendants in this lawsuit that her decisions were too long? A No. Did you make any complaints that her decisions were late and not on time? A I recall hearing that and that coming up in a discussion one time in a group of people. I'm not sure when, but I w? I don't recall personally making any comments with reSpect to that, her decisions being late, but I do recall that coming up at some point in time, somebody communicating that to me. One of the Commissioners? A No. No, I don't recall it coming from one of the Commissioners, but it's I mean, I was involved in several meetings and I do recall hearing that, but I do not recall when and how it came up. This was not an issue that I was focused on. Now, tell me, if you can, how you m~ if you can recall, how did you first learn that Judge Harrison had been terminated? A I don't recall. Someone, I'm sure, called me, but I don't recall anyone from the Commission calling me. I'm sure someone just called me and communicated that to me. And I don't know whether it was another member of the business community or otherwise, but I don't recall anyone from the Commission calling me concerning the termination. KAY BUTLER, can, 950;) 353*3134 you recall when you first found out that Ms. Harrison had filed a lawsuit? A No, I do not recall. Do you recall when you first found out that you had been listed as a witness in this case? A Didn't you - you-all noticed me up one time previously, I believe and depositions were scheduled, maybe, in April of this year. There was a communication concerning the initial scheduling of the depositions and that's sometime around that time period is when I found out that you-all wanted to talk to me concerning this case. I think it was April, I don't know. But it the depositions, when they were previously scheduled, communication with Leon to me was that I was listed and that he and I would need to be available for depositions. And that's when I knew. Are you familiar with any other people of this business community that you refer to, that you speak on have spoken on behalf of, that personally made requests to Commissioner Wilson to terminate Judge Harrison? A No. Are you familiar with any other members of this community, business community, that made personal requests to Eldon Coffman to terminate Judge Harrison? A No. Now, I'm not personally familiar with those. I have heard that different people communicated, but from the business KAY BUTLER, ccn, CVR . community, there was a lot of communication going on potentially, but I'm not aware of any specifics concerning any communication. Okay. A But peeple were talking about the Reddick decision, and judicial reSponsibility, and about judicial advocacy, and, you know, I heard people talking about w? I potentially communicated with different people. But I don't know the specifics of any communication and don't know whether it occurred. Okay. Were you ever at any meetings in which Mr. Walmsley suggested that Judge Harrison should be terminated? A Mr. Walmsley had a Specific communication with Judge Coffman mm with Chairman Coffman, separate from any communication I had with Chairman Coffman. And the detail of that communication from Mr. Walmsley, you probably need to secure from Mr. Walmsley. Well, I'm going to get to talk to him about it, did you talk to him about it? A He was going to make a call, or he was going to meet with Judge Coffman w- or with Chairman Coffman. I don't recall the Specifics of our conversation about that meeting. I just do not recall it. Did he tell you ?w do you recall whether he told you that he intended to - it was his intention to communicate to KAY BUTLER, can, ?(5011m868-3134 Commissioner Coffman that he should terminate Judge Harrison? A I'm trying to think back to that communication, because that communication was after my communication with Judge - with Chairman Coffman. I just do not recall the specifics of that communication. He may very well have told me that; he may not, I do not know that. I cannot tell you that I recall specifically that conversation. But I do recall a communication with Mr. Walmsley about the fact that he was going to talk to Chairman Coffman. Did you ever suggest to Chairman Coffman that ALJ Blood and Mazzanti should be terminated? A No, ma'am. Did you ever complain to Commission Kennedy about Judge Harrison? A I do not recall complaining to Mr. Kennedy about anything. We've got the documents. MR. HOLMES: I have an extra copy, too. MS. PULLIAM: Okay. That will work. And then you just have to hope I'll pay you, because my credit's not too good these days. MR. HOLMES: I don't think that you would ever do anything dishonest. I think you're scrupulous in the first place, and secondly, I think you're particularly scrupulous with me. MS. PULLIAM: About paying my bills, I try to be KAY BUTLER: CCR. CVR 94? pretty careful to everybody. MS. PULLIAM: I sent you why don't I hand these to you, these documents that We've had copied, and let the record reflect that during the break, we had copied all of the documents that Mr. Carter brought pursuant to my Subpoena Duces Tecum. BY MS. PULLIAM: And I'm going to let you give them to me, so that I know which documents are responsive to which request. I asked for any and all writings, documents, memoranda, recorded sounds, films, tapes, or data compilation, in any form related to this lawsuit and Eileen Harrison that were generated, created, received, provided, produced, drafted, or dated since January 1, 1997. A Those would be in this stack right here. (Indicating.) Your second request was Any and all writings, da?da?da?da?da, in any form regarding Eldon Coffman, Mike Wilson, Pat Humphries, or the Workers' Compensation Commission that were generated, created A These documents are in response to one and two. (Indicating.) Okay. A And, I guess, on top is a faxed a copy of a case from Commissioner Wilson to me. I believe we have two copies here KAY BUTLER, CCR, CVR _(501) the same document. MR. HOLMES: That's probably mine. That's probably w? one set is for me. THE WITNESS: Do you want to clarify that before we MS. PULLIAM: I'll THE WITNESS: I don't know. I'm just looking at it. BY MS. PULLIAM: Okay. A I The second set are documents would you read request number three to me, three or four? Request number three are any and all correspondence and legal memoranda regarding potential exposure to WaluMart in this lawsuit and/or the personal exposure to liability of Stephen A. Carter in this lawsuit prepared by Leon Holmes, and Mr. Holmes has already communicated to me that he didn't ever provide any such documents, so they don't exist? A No document exists. And any appointments, scheduling, or personal calendars for Stephen P. Carter maintained for 1998? A We searched for that, my assistant, Monte Wolf, did and we cannot find that document. Okay. A Or any of those appointment calendars. We were not on the KAY BUTLER, CCR: OVR 869:8}34mm Outlook system at that time. We had no electronic calendar. And we had a flood in June, of 1999, and she tells me she thinks the may have been destroyed in that flood. Okay. A They were in a storage box and we could not find it. And then I asked, in five, pursuant to ACAs 21*8-605, provide all supporting accounts, bills, receipts, and any other documents which relate to Stephen P. Carter's lobbying activities from January 1, 1997, to present? A You have those. That's this? :5 Correct. It's Stephen P. by the way. P, I'm sorry. IV 0 Yes, ma'am. That's okay. Okay. The other -w one other thing I want to ask you is all during this deposition, I've been asking you if you've had any conversations about Eileen Harrison as in her performances as an Administrative Law Judge with the two Commissioners that are defendants in this lawsuit, and I've not asked you whether you've had any communications with the Labor Commissioner about Judge Harrison; did you? A No, ma'am. Is there any reason why you excluded her from those conversations? MR. HOLMES: Object to the form of the question. KAY BUTLER, con, 868+8134 THE WITNESS: I didn't have any communications, to my recollection, with the employer representative concerning Judge Harrison. I had a communication with Eldon Coffman in my office upon his request and without an agenda, and the gist of that conversation was to discuss the relationship between the business community and the Commission. In that conversation, several things were discussed. But as far as I recall, I did not initiate a conversation with Chairman Coffman concerning Eileen Harrison in any other forma at any other time. BY MS. PULLIAM: Other than the time that you communicated to him that it was your information that she should be terminated? A In that April meeting; that's correct. In that April meeting. 1 And you've never had any communications at all with Commissioner Wilson about Judge Harrison? A I do not recall any communications specifically about Judge Harrison with Commissioner Wilson. I just - I don't recall. I mean, it is possible that, at some point in time, we discussed the Reddick decision, that we discussed Judge Harrison w? I mean, that's possible. I just do not recall a specific communication with him about Judge Harrison or the Reddick decision. But I do recall a specific communication KAY BUTLER, can, CVR (591) 868t3134 with Chairman Coffman. Did you specifically ever request make the information known that you gave Judge Coffman w? to Judge Wilson, that the business community thought that Judge Harrison or Judge Ellig should go? MR. HOLMES: I'm going to have to I don't understand that question. You kind of lost me. If you could start over? BY MS. PULLIAM: Okay. Did you communicate the information that you communicated to Eldon Coffman about Judge Harrison and Judge Ellig to Commissioner Wilson? A I don't recall communicating that to Commissioner WilsOn. Did you ever specifically make a request to Commissioner Wilson that Judge Harrison be terminated? A No. Did Commissioner Wilson ever discuss with you Judge Harrison? A I don't recall any specific discussion. I do not recall that. We could have talked about Judge Harrison at some point, but I do not recall any specific discussion. Did you have any discussions with Commissioner Wilson about the Reddick decision?. A I don't recall any specific discussions about the Reddick decision. KAY BUTLER, CCR, CVR 868-8134 Now, when you participated in the negotiations with members from the Senate and the Governor and all those people that you said were there, members of the business community, maybe somebody from Labor and ATLA, were you lobbying at that point? A I was on whose behalf; help me I was representing I need you to help me. A ?a I was representing, at that point in time, the business community at the request of the Chamber of Commerce and participating in a process of negotiating what ultimately became Act 796. Somebody else will have to define that for me. Were you acting - A But I was not lobbying on behalf of Waleart at that point in time, as far as I recall. I mean, Wal-Mart was not directing my activities at all. I was not reporting to anyone at Wal?Mart concerning the progress. I was down there working with the Chamber of Commerce in an area - in an effort to reform the Workers' Compensation system in the state of Arkansas. And at the time you were performing these duties, you were an employee on the payroll of WaluMart; is that correct? A I was not employee on the payroll of WaluMart at that time. That was in during a portion of that time, no m- I mean, I was not. So, WalmMart did not believe that you were there at their KAY BUTLER, ccn, CVR .(594) 853?3134. 'of different states on behest; that's what I'm trying to find out? A Okay. Wal-Mart to do a number of different things for Wal?Mart. number of different w- they asked me to participate, as a lawyer, was involved in on their behalf. me what I was doing, you know, on any respect to any particular function. articular day with to Wal-Mart on this specific activity to the best of my recollection. evaluating particular rules of law and A 100 Wal?Mart w~ at that time, I was being retained by on their behalf in a number of different things that I They didn't specifically ask I was not reporting back But I was doing a number of things for Wal-Mart; procedure for a number an office close to my house, performing duties upon request, some of thoSe related to health issues, some related to workers' of different areas. I had an independent law firm and I was their behalf, and I was working out of comp, some related to property and casualty, a number participating with Wal-Mart and working with Waleart through a relationship that I had with them. going down and working with the Chamber, no. like that was a good idea to chamber, yes. member. directing it. Did they feel I mean, I should w? they did, as a business What I'm trying to let you know is, they weren't and participate in that process unencumbered by any real direction from Wal-Mart. KAY BUTLER, can, 868+8134 CVR go down there and work with the Now, did they dock me for They allowed me to participate with the Chamber 4? April, of 1998, when you participated in your discussions with Eldon Coffman that you believed that he should resign, were you lobbying on behalf of Wal-Mart at that time? A No, I was communicating to him positions from the business community. Were you being paid by Wal?Mart? A Yes. I was an employee of Waleart at that time. And my same question to when you made the communication to Commissioner Coffman that either Judge Ellig or Judge Harrison should be terminated, were you lobbying? A That's the same day; right? You're talking about the same communication? If it was the same day, I'm just talking about the communication; were you lobbying on behalf of Waleart at that time? A You're talking about the communication when Judge Ellig was in my office; is that correct? MR. HOLMES: Coffman. BY MS. PULLIAM: Chairman Coffman? A Chairman Coffman was in my office; is that correct? Yes. A No. No, I was representing the business community at that time. I never communicated with anyone concerning Wal?Mart that I can recall prior to or after that conversation KAY BUTLER, CCR, CVR .H 102 concerning the details of that conversation. I was communicating issues that had been raised by the business community in conjunction with performing my duties as the chairman of the Workers' Compensation Section of the Arkansas State Chamber of Commerce. And does the workers' does the we excuse me. Does the State Chamber of Commerce have a registered lobbyist? A Yes, at the time it was Lee Pittman. And have you ever lobbied on behalf of the Arkansas Chamber State Chamber? A No. I mean, not if you mean by lobbying, have I spent money, done anything other than as a citizen expressing opinion, no. On behalf of Wal-Mart, you will see from my lobbyist reports, I wasn't spending money during this time period, doing anything that would be reflected on that report as lobbying activities. I wasn't performing lobbying activities on behalf of Waleart or the Chamber. I expressed an opinion as a citizen and as a participant in the business community. That's what I was doing. I am a registered lobbyist. In the event I do, at some point, perform functions that are consistent with lobbyist activities for which a report_ needs to be generated, I will do that. But I registered as a lobbyist to ensure that in the event I do perform a function consistent with the definition of lobbying activities for which a report is necessary, that at that time I'll be prepared to KAY BUTLER, can, CVR (501) 868-8134 103 report appropriately. So, I want to make sure that I understand that it's your understanding, and I'm not saying you're wrong, I'm just trying to get an understanding, that it's your understanding that as a registered lobbyist for Wal-Mart and as1a citizen who enjoys First Amendment rights, which I understand something about, you can go to the Chair of the Workers' Compensation Commission and make a request that an Administrative Law Judge be terminated and that's not lobbying for administrative action? A It's my understanding Well, just answer my questions, yes or no and then tell me whatever else you understand, if you can. MR. HOLMES: I'm going to interpose an objection to the form. THE WITNESS: I'm going to have to answer no. BY MS. PULLIAM: Okay. A But if I can explain it, I'll explain it. All right. I want to hear it. A You said as a citizen and lobbyist on behalf of Waleart. These communications were not on behalf of Waleart. These communications were on behalf of the business community based upon my position as Chairman of the Workers' Compensation Section of the Arkansas State Chamber of Commerce. Now, as a citizen and as a member of the business community, I KAY BUTLER, can, .(501) 868-8134 104 communicated with Chairman Coffman, and I've communicated with other people on other issues, but I did not specifically communicate these my communication, as a part of a lobbying activity sanctioned or encouraged by Wal?Mart. Do you communicate did you communicate to Commissioner Coffman, just want to make sure you know, Commissioner, by the way, that none of this has anything to do with my job as an employee of Wal?Mart. I'm out here as, like Ollie North, on a frolic of my own."? MR. HOLMES: Object to the form of the question, You don't have to answer that. BY MS. PULLIAM: I didn't mean to be - well, "I'm out here on my own. I'm just John Q. Citizen.?? A No, but I don't think I've implied that. If I have, let me correct the record. Okay. A What I think I've said is that when I communicated with Chairman Coffman, I communicated with him my personal opinion, potentially, in some circumstances. For instance, when I communicated with him that I felt like, personally, he should resign. On other occasions, I communicated the opinion of business on the things I had heard from the business community, as in the circumstance where I mentioned Judge Ellig and Judge Harrison by name. I have, and continue, to serve as the KAY BUTLER, con, .(501) 36873134m 10% Chairman of the Workers' Compensation section of the Arkansas State Chamber of the Commerce. Chairman Coffman knows that and I would presume that he knows that my communication is on behalf of that group, but I'm sure you will or have had the opportunity to ask him that. I don't think he assumed my communication with him in April, of '98, was on behalf of Wal? Mart. I do not believe that; now, you'll have to ask him to find the answer. Well, let me ask A I assume that he, based upon our communication about the business community, would understand that-my communication was on behalf of the business community, which in this state, at least a large portion of it, the business community, is represented by the Arkansas State Chamber of Commerce and they ?w the Workers' Compensation Section, I CowChair with Co-Chairman Walmsley. Do you know who the person at Wal?Mart was that was in" charge of lobbying whose responsibility it was to lobby for Waleart A Don Shinkle. on workers? compensation issues? A Don Shinkle. And can you spell his last name? A And his responsibility is to lobby on workers' KAY BUTLER, con, (501) 868-8134 106 compensation issues for Wal?Mart? A He was Vice President of Wal?Mart at the time, as far as I recall, a registered lobbyist, and his responsibility was for lobbying activities for Wal-Mart. And did you ever have any conversations with him about Judge Harrison? A No. Did you ever have any conversations with him about Commissioner Coffman? A No. 'Did you ever have any conversations with him about Commissioner Wilson? A NO. Did you ever have any conversations with him about the Act A 796? 796? A Not that I recall. I may have - I mean, he may have gotten a bulletin from someone and asked me a question about it because of my involvement with workers' compensation in the state of Arkansas. That's a possibility, I just don't recall anything specific. Did you ever make any complaints to Marcus that were made on behalf of Wal?Mart about the Workers' Compensation Commission? KAY BUTLER, ccn, (5011.868-8134m .. The only time I recall communicating with Marcus was a communication, specifically, was a communication concerning the erosion of the Act, and it was m? it was during the w? a meeting at the Arkansas State Chamber of Commerce. I do not recall specifically mentioning Wal-Mart in that conversation, but I served as the Co?Chairman of that Committee at the time and I was responsible for that meeting because Mr. Walmsley was making a presentation during that meeting. And sometime during that meeting, I think it was after the meeting was over, and a number of people were visiting; I don't remember whether Marcus initiated the conversation or I did, but we ended up visiting - talking to each other about the erosion of the Act, because that had been communicated several times by several different members of the business community during that meeting. IDid Marcus ever communicate to you whether or not he had conducted an investigation to determine whether or not your allegations regarding the erosion of the Act were legitimate or not? A They weren't my allegations. Or the allegations which you've communicated? A There were multiple communications at that time. A number of people communicating at that time, in that setting of a meeting, a number of different allegations related to the Commission, not to Judge Harrison. Now, during that KAY BUTLER, can, CVR 10% communication, I do not recall him telling me anything about an investigation. I don't recall anything about an investigation. I don't recall any subsequent meeting in which he informed me there was an investigation. I don't recall that. Did you request that he communicate this information to the Governor? A No, not specifically as far as I recall. And as far as you could know, you never got any communication back from him that said, "Yea, I believe that there's erosion of the Act," or, "We've investigated and we think you're wrong," or you just didn't hear? A No. No? A I don't recall getting that information back. Okay. MS. PULLIAM: All right. Let's take a break for just a minute and let me look through these documents and then see if I can wrap up here. MR. HOLMES: Okay. (OFF THE RECORD) BY MS. PULLIAM: I just want to go over these documents that you've provided and ask you to identify them for me and tell me what they are and how you received them, and how they're responsive to the Subpoena Duces Tecum. I'm going to hand you and have KAY BUTLER, can, (501) 86?+8l34 109 her mark as Document Production Number 1. COURT REPORTER: (Complying.) THE WITNESS: What would you like me to tell you about this document? BY MS. PULLIAM: Yeah. Just identify it for me and tell me A Analysis of Commissions Decisions concerning Act 796, Statistical Response. This was a part of information submitted by Chairman Coffman in response to the analysis done by Bill Walmsley. Okay. And it was given to you by Chairman Coffman? A I received it in the mail, actually, I believe. I believe I received it in the mail. I received that before the meeting. We had the group, a group meeting, as far as I recall, and so I would have had that sometime before the meeting in November of '97, November/December of '97, or early '98. I would have had that document sometime in that time period. I'm going to hand you another document, and before I have it marked I think it's exactly the same thing? A It looks like the same thing, dated the same day. Okay. So, we won't mark it. A Okay. And then I'm going to hand you Document Number 2, and ask you to identify it? A Analysis of Commission Decisions Concerning Act 796 in KAY BUTLER, CCR, CVR 868-8134 liq 1993; this is the document prepared by Co-Chairman Walmsley. And so, Document 1 is responsive to this? A Correct. It's one of the reSponses. You'll have another one in there. Okay. A Another document, I believe. Document Number 3 is Addendum to Analysis; what can you tell me about this? A This is an addendum prepared by Co?Chairman Walmsley as a follow?up, or addendum, to the analysis that is Document Number 2. Okay. And now, I'm going to hand you Document well, let's look at that one before we have it marked, because I think we may already have both of them in therethat the same as Number 1? A No. No? Okay. A NO. Okay. Let's get it marked. A Okay. A portion of this is the same. Somehow in the copying, there may have been some confusion, it appears, but Document Number 1 ?a Okay. A is included in what would be, I guess, Document Number KAY BUTLER, ccn, Okay. A But there are additional documents attached, and Document Number 4 is the way I received this document; multiple pages, Analysis of Commission's decision concerning the Act, with a Statistical Response, and an analysis of the decisions. Did it have a cover letter? A I don't have a copy of one. Do you know who you received it from? A No. And on this, it says is this your handwriting, ?Charles Adams versus Snyder Construction"? A No, that is my assistant's writing that was just on a case that I had requested at one time; she used that document just to write the name of the case on. So, that has no meaning mu meaningful relevance to this lawsuit? A As far as I know, it doesn't. That's not my handwriting. Okay. Document Number 5? A I think Document Number 5 is another subwpart of Document Number 4; it's a duplicate copy of a portion of Document Number 4. Okay. A So, you already have it in there. Now, you have Document 5 in twice. KAY BUTLER, can, CVR 112 Okay. Document Number 6 is a case, Claim Number E609307, Emma Greene, Employee, Claimant; Subiaco Abbey, Employer, Respondent. And can you tell me how this document is related to the lawsuit of Eileen Harrison? A I don't believe it is, but I think - would you read to me Request for Production, Number Three? Correspondence regarding the potential exposure to liability? A Okay. Number two, I'm sorry. Then, two. Any and all writings, da-da-da, regarding Eldon Coffman, Mike Wilson, Pat Humphries, or the Commission that were generated? A There's a note on top of this I don't recall this specific case, but it was in the file. A note on top, "Eldon, I do not understand this case, how was it compensable? I need to set up and this was a note to my assistant, need to i set up a call with Eldon on this case." I don't recall it specifically, don't recall contacting him on the case, but I just wrote that note. Okay. So, that Ill understand this, you're in your office, you read this opinion, and you make a note that you need to contact Eldon regarding the case? A To understand it. But you don't know whether you ever contacted him regarding it or not? KAY BUTLER, CCR, CVR (591) 868-8134 don't recall well, I know I didn't initiate a call. My assistant would normally set up a call like that. I don't recall her ever completing that, and I asked her and she didn't recall ever setting up that call. I don't know why it didn't occur, but, you know, it could have been just in the course of business, we got busy and it just it did not happen. So, it would not be uncommon for you to have carried out this instruction to set up the call and have a conversation, talk to Eldon about how you should understand the opinion? A I don't think I've ever talked to him on the phone. At the time we were in the meeting in April of '98 "w Okay. A m~ and I don't recall the date of that. This is June of '98. A Okay. At the time we So, it would be after that meeting. were in the meeting, he encouraged me to call him if I had a question and I did not understand a case. So, I did not understand that decision, so I was going to call him and find out why. But that was subsequent to the meeting that I had in April. The other decisions, I can't help you with. I don't know why they're in the file; they're just there. And I think the dates were consistent and they related to the Commission is the reason I sent them to you. So, you just thought these documents had something to do KAY BUTLER, can, (501) asaea134 just want to make sure I came within the meaning of the request? A gave you everything you wanted. And that's you have my file. Okay. A So, you have it. So, anything in there m" but those other documents that I we you know, some of them related to decisions with respect to the Commission on permanent injury, permanent disability of maybe objective findings. But those are just opinions that, obviously, I was reading and kept those in the file. To your knowledge, do any of these documents that have not been marked as Exhibits, have anything to do with Judge Harrison? A No, I don't think any of these documents that you've marked have anything to do with Judge Harrison. As a matterwof-fact, I don't have anything in my file that has anything to do with Judge Harrison. Okay. On Plaintiff's Exhibit Number 6 well, you said that in your April meeting with Commissioner Coffman that he suggested to you that any time you didn't understand a decision that you call him; have you ever done that? A No. Prior to that meeting in April, of 1998, have you ever had a Commissioner at the Workers' Compensation Commission say, "If KAY BUTLER, can, CVR (501) 868-8134 115 you don't understand my decisions, call me up and we'll talk about them."? A No. But there w- not Specifically to me. In the process of these meetings, going back to the joint meeting we had with Mike Pickens, and Lee Pittman, and the group that, you know, Bill Walmsley, Chairman Coffman; in that meeting, there was discussion about a lack of understanding of the analysis that Chairman Coffman was using in his opinions by virtue of the fact that the Commission was going through a cleanwup process and trying to efficiently clean up claims. There was some discussion at that time about, "If you don't understand one of these claims, ask me about it. I'll explain to you my reasoning. It was that type of conversation. Those aren't the specific words, but that type of conversation. My recollection is that that was reiterated in April. And, you know, obviously I had made a note to myself to do that very thing and try to understand. But I don't recall, and like I say, my assistant does not recall any follow?up that would have included that call. Not only about this opinion, but about any of these opinions, do you recall any followwup that you've had to try to understand w? A No. Commissioner Coffman's position; or, for that matter, anybody elses? KAY BUTLER, CCR, CVR don't recall calling Commissioner Coffman for any for that understanding or for any other purpose. I'm just going to have these marked numerically and then and there's no reason for us to go through each one of them individually. A Okay. MS. PULLIAM: The opinion of Jimmy Medlock, Employee, Claimant, and Colson Caster Company, Respondent, will be Plaintiffs Exhibit 7, and David Hayfer, Employee, Mountain Home Manufacturing, will be Plaintiff's Exhibit Number 8. Flora, G-O-E-T-T, Employee, Claimant, and Holland West Nursing Center, Employer, Respondent, will Plaintiff's Exhibit 9. Ricky Ditto, Plaintiff, Frit Industries, Plaintiff's Exhibit 10. Marty Freeman, Employee, Claimant, Continental Express, Employer, Respondent, Plaintiff's Exhibit 11. Roe v. Hot Springs Rehabilitation Services, Number 12. English v. Sterling Plumbing Group, Number 13. Moodv v. General Electric CompanM, Number 14. Scroggins v. J. E. Hunt Transportation, Number 15. Roe v. Hot Springs English v. Sterling Rehabilitation, Number 16. Plumbing Group, Number 17. Moody v. General Electric Company, Number 18. Lackev v. Motors, Number 19. Scroggins v. J. B. Hunt KAY BUTLER, can, 11W Transportation, Number 20. Mark Metz, Claimant, Trail Mobile, Inc., Respondent, Number 21. LackeyI \Claimant, v. Coqswell Motors, Number 22. Jeff Lutrell, Claimant, Central, Self? Insured, Number 25. BY MS. PULLIAM: And there's a note on here that says, "Faxed to Lee Pittman at State Chamber," is that your handwriting? A It is. Steve Moody A Let me make u? let me check that one more time. No, that's not but that was per my request. Okay. A I can tell you, that's not my specific handwriting, but that was per my request. MS. PULLIAM: Steve Moody, Claimant, General Electric Company, Employer, 29. No, that's COURT REPORTER: That's 24. MS. PULLIAM: 24. Anthony Coleman, Claimant, McMillan Bloedel Containers, Respondent, 25. Roger Glander, Claimant, Tyson Foods, Respondent, 26. Cecil Smith, Claimant, Alcoa, Respondent, 27. Shook, Claimant, First Brands Corporation, Respondent, 28. Sheila Brock, Claimant, Swift, Inc., Respondent, 29. Martha Russell, Plaintiff, Williford KAY BUTLER, can, CVR (501) 868-8134 118 School District, Respondent, Number 30. Lackey v. Cogswell Motors, Number 31. And then we have a, to Carter from Mike Wilson fax cover sheet for Case, Supreme Court, Bill Golden. Appellant versus West Ark Community College, 32. MS. PULLIAM: And then if you'd just make yours the same numbers, we'll each have a set of these and we won't have to get copies. MR. HOLMES: Well, when I get the transcript, I'd just as soon they attached to the transcript,.but if that's a problem. I have them number, but if we -could get the transcript and sit down together, and then number my set and that will be fine. MS. PULLIAM: I'll number them for you. MR. HOLMES: Okay. Well, are you going to do- what are you going to are you going to give those to the court reporter or are you going to MS. PULLIAM: I was going to give them to the court reporter and let her put them in a MR. HOLMES: That's fine. When we get that done, then if you'll just get with me, and we'll sit down with my set and we'll number my set, so that it corresponds to yours. That's fine. MS. PULLIAM: Okay. I didn't see any need to pay to copy them again. KAY BUTLER, CCR, CVR (501) 868f8134 MR. HOLMES: No, I don't either. MS. PULLIAM: Okay. This was a duplicate of something we already had. And then I'm going to have this whole packet of documents marked as Exhibit 33. (THEREUPON, several pages of documents were marked for identification as Plaintiff's Exhibits 1 thorough 33, and were made a part of the record and are appended in a separate Exhibit File at Exhibit Tabs 1 through 33.) BY MS. PULLIAM: And these are the documents that you provided that you're required to maintain pursuant to Ark. Stat. 21?8?605; right? A For the relevant period. Right. For the relevant period. MS. PULLIAM: Okay. Let me talk to Jack and Eileen for a minute, and I may be done. THE WITNESS: All right. (OFF THE RECORD) BY MS. PULLIAM: Okay. At any time, when you met with Eldon Coffman regarding any issues that concerned the Workers' Compensation Commission, was Don Shinkle in the meeting? A No, ma'am. At any time when you met with Marcus concerning issues regarding the Workers' Compensation Commission, was Don Shinkle KAY BUTLER, can, the meeting? A No, ma'am. At any time when you met with Commissioner Wilson regarding Workers' Compensation issues, was Don Shinkle in the meeting? A No, ma'am. Did Don Shinkle have any participation at all in the review, drafting and/or well, first in the review or drafting of Act 796? A No, ma'am. Did he have any participation at all in the meetings with the Governor and the various groups that you identified in discussing and coming to recommendations regarding the Act? A I'm sorry, I'm not sure I understand that question. In the meeting where you A Are you talking about with Governor Tucker? Yes, Governor Tucker. A The negotiating sessions that moved toward Act 796? Yes, right. A Are you asking me whether Don Shinkle participated in Yes. A No, ma'am. Did Don Shinkle lobby any members of the Legislature on behalf of Act 796? KAY BUTLER, ccn, (501)?868j8134_ Not that I recall. Did you lobby any members of the Legislature on behalf of Act 796? A By lobby, what do you mean; did I discuss with the members of the Legislature that Did you give m? A w- I was in support of Act 796? Yes. I mean, we can pull the definition of lobbying out if we want to, but it means provide A I'm just trying to understand what you mean by that? -w information, discuss, solicit support for - MR. HOLMES: If you're going to ask him for a legal conclusion on that, just ask him. THE WITNESS: Yeah. I think you need to give me a Statute one. MR. HOLMES: If you want to ask him what didihe do - THE WITNESS: Because I MS. PULLIAM: That's what I want to know. MR. HOLMES: Yeah. BY MS. PULLIAM: What did you do? A I talked to members of the Legislature about the proposed Act, I did. I mean, that's not Did you - KAY BUTLER, can, CVR 868-8134 But when you talk about lobbying, I don't know. Okay. A I mean, from the requirements, the reporting requirements that I have by law, I did not perform any lobbying activities that I recall during that period of time. When you discussed with members of the Legislature the Act, did you communicate to them your support for the Act? A As far as I recall, yes, but remember that it was probably more involvement with that back in '91, than maybe even by the time we got to negotiations in '93. You had Senate support after the negotiations. My recollection is that Joe Purvis got up and made a ?a communicated on the floor to the Senate. There was a significant amount of support from business, in general, and a number of communications out there. I mean, I don't remember specifically lobbying individuals. I remember being out there as a part of a group negotiating, negotiating the Act, communicating about the Act, talking to people who had questions, because I was involved. But when I went and talked to people who had questions, generally Gary Hauser was there, LaDonna Bornhoff, the other business members working on the negotiation sessions. And a lot of communication going on out there, but there was a significant amount of support, as I recall it, after Senator Dowd, Senator Beebe, and the other Senators involved in negotiating the Senate revisions to the Act were approved. I don't recall it being near as significant KAY BUTLER, can, CVR (501) 8?8e3134 the issues on the House side, for instance. Did you have A But I did talk to people; I mean, there's no doubt I talked to people. I want you to understand that completely. I talked to people about my opinion with respect to rules of law. As a citizen, I've got a right to do that. I talked to people about my opinions with respect to law as a member of the business community. And I talked to people as a member of the business community that participates with the State Chamber of Commerce. But I'm telling you, no one at Waleart was directing my activities. I want you to understand that piece of it. They just were not directing my activities with respect to Act 796, or anything subsequent to that during this relevant time period. Did your ever communicate with anyone during that relevant time period that WalmMart was supportive of the Act? I'm sure I communicated with someone at that time period that the Act would be in Wal~Mart's best interest, sure. Did you have any communications with Rudy Bischoff about the Act? A Who is he? I don't know him either. A You don't know him? No. A I don't know him, that I know about. I mean, I may know KAY BUTLER, can, CVR (591) 868f?l34 124 him, but I don't know who m- I mean, right now I don't recall who he is. So, do you really not know him? I honestly do not know him. A Okay. I would not make that up. I don't know who he is. A Okay. If anybody can help me - if anybody can help me with who he might be, then I may but obviously, Wal-Mart is supportive of positions in a number of situations that are consistent with the Chamber of Commerce positions. As a part of the business community, Wal-Mart was supportive of Chamber positions; with Act 796, with a number of areas, but no one at Waleart was directing any activities with respect to 796 or otherwise. I was acting on behalf of the Chamber and Wal-Mart lent its support to the Chamber. Yeah. MS. PULLIAM: I'm done. THE WITNESS: Are you? MS. PULLIAM: Yes. THE Okay. Well, thank you. MS. PULLIAM: Okay. Thank you. THE WITNESS: Nice to meet you. MS. PULLIAM: Nice to meet you. (THEREUPON, at 2:25 p.m. the taking of the above-captioned deposition was concluded.) KAY BUTLER, CCR, CVR (501) 868-8134 125 I I A STATE OF ARKANSAS ss. COUNTY OF PULASKI I, KAY BUTLER, A CERTIFIED COURT REPORTER AND NOTARY PUBLIC, in Little Rock and for the aforesaid county and state, do hereby certify that the witness, STEPHEN P. CARTER, whose testimony appears in the foregoing ONE HUNDRED TWENTY-FOUR (124) pages was duly sworn by me prior to the taking of testimony as to the truth of the matters attested to and contained herein and that the deponent and parties did not waive the signing of the deposition by the deponent. I FURTHER CERTIFY that the testimony of said witness was taken by me, and was thereafter reduced to typewritten form by me or under my direction and supervision. SAID DEPOSITION was examined and read over by the deponent. The deponent desires certain changes be made to his deposition as indicated on the Errata Sheet, which is attached to the signature page. (All parties, through their respective attorneys who appeared at the deposition, stipulated that changes to the deposition could be made out of the presence of this officer.) I FURTHER CERTIFY that the deposition is a true and accurate record of the testimony given by said witness, to the best of my understanding and ability. I FURTHER CERTIFY that I am neither counsel for, related to nor employed by any of the parties to the action in which this deposition was taken. I FURTHER CERTIFY, that I am not a relative or employee of any attorney or employed by the parties hereto, nor financially interested or otherwise, in the outcome of this action, and that I have no contract with the parties, attorneys, or persons with an interest in the action that affects or has a substantial tendency to affect impartiality, that requires me to relinquish control of an original deposition transcript or copies of the transcript before it is certified and delivered to the custodial attorney, or that requires me to provide any service not made available to all parties to the action. WITNESS, MY HAND AND SEAL, Kay ButI?r, Certified Court Reporter?ahd?f Notary Public L. S. Certificate No. 284 My Commission Expires: 10?21-05 KAY BUTLER, CCR, CVR (591)