my BUTLER, 501-868?8134 Multi-PagcTM J. MICHAEL PICKENS, 4-12-00 II THE UNITED suns DISTRICT COURT DISTRICT 0? mass Has-rm DIVISION 31188ILDOI com. Individually acting and in his of?cial Capacity as the Chair-an of the Arkansas Iorkers' Compensation Emission, and K1an I I. Individually acting under 9 the Color of State tau and in nis Of?cial Capacity as a emissioner 3 of the Arkansas workers' Compensation 3 Emission, i DEFINE . DEEDS 1110. J. KICHABL PICKBIS NO. Produced, mm, and examined in the offices of liliiaas and Anderson, 111 Center Street, Suite 2200, Little Rock. Arkansas. coalescing at 9:20 on lednesday, April 12, 2000, in the above?captioned cause now pending in the United States District Court, Eastern District of Arkansas, lestern Division; said deposition being taken pursuant to provisions of the Federal Rules of Civil Precedure, for discovery and all other purposes, at the instance of counsel for plaintiff. It is stipulated and agreed that all tones and formalities as to the tatinq, transcribing, certification, and signing of said deposition in this action are hereby waived; however, the right to object to the testimony of the witness on the grounds of inconpetency, irrelevancy and i-aateriality is expressly reserved, other than as to the tor- of questions as proponnded APPEARANCES: OI BEHALF 0! JOHI r. Lav?, Esquire I 904 liest Second Street Little Rock, Arkansas 72201-2657 JANET L. WLLIM, Esquire puma?! WRIGHT 1501 I. University, suite 552 Little Rock, Arkansas 7220?? Oil BEHALF Ol? DEFENDAITS: 180' .7. 5011135, Esquire WILLIAM 111 Center Street, suite 2200 Little Rock. Arkansas 72201 M50 EILEEN I. HARRISON HICHABL K. swan com to the litness, and say he hereinafter asserted i! and when presented at the trial at this cause without the necessity of noting same at the time of taking of said deposition. Page 3 I P190 caption . . . . . . . . . i stipulations . . . . . . . . i Appearances . . . . . . . . 2 Index . . . . . . . . . 3 Examination by Kr. Laney . . . . . 5 Requests . . . . . 110,113,114,115.116 Reporter?s Certificate . . . . . 126 I I I 1? 8 mm mono Plaintiff's Exhibit 1 . . . . . 0ft Record In rah 1 Letter dated September l, 1997, to Joseph 3. Basis tro- hill n. Hal-siey and Analysis of the Cousission Decisions concerning Act 196 Plaintiff's Exhibit n. . . . . 19 'i'ab IA lax sheet and Analysis of the Co?ission Decisions concerning not 796 Plaintiff's Exhibit 2 . . . . . Off Record. Ix tab 2 Article fro. Arkansas tines Plaintiff's Bxhibit 3 . . . . . off Record as Tab 3 Opinion Filed July 14, 1991 Plaintiff?s Exhibit 4 . . . . of! Record In Tab i Opinion Filed May 15, 1990 Plaintiff's Exhibit Record In Tab 5 Letter dated July 29, 1990, to Ms. Linda Bailey fro. Seleta Iearian Plaintiff's Inhibit lotes of Speech given by like Pickens Page 4 Plaintiff's Exhibit Special Anal ya i Cases Page 1 - Page 4 . KAY BUTLER, 501-868-8134 Multi-I?ageTM J. MCHAEL PICKENS, 4-12-00 Page 5 0 I THEREUPON, I. MICHAEL PICKENS having been called for examination by counsel for plaintiff and having been first duly sworn by the undersigned notary public, was examined and testi?ed as follows: EXAMINATION BY COUNSEL FOR PLAINTIFF BY MR. LAVEY: Would you, please, state your name, sir. A Mike Pickens. Would you please give me your residential address and residential telephone number? A 13806 Longtree -- and that's all one word -- Drive, Little Rock, Arkansas, 72212. Telephone number is SDI-8684062. And your business address and business telephone number? A Arkansas Insurance Department, 1200 West Third, Little Rock, Arkansas, 72201-1904. Well, as you know, this is a deposition, Mr. Pickens, and you're a lawyer, and I'm sure you've been in my seat before. And however, I'm going to be asking questions and if I ask you a question that, you know, you don't understand, please, ask me to clarify it or at times I can start speaking too fast. do that, tell me to slow down and what-have-you. I don't think there'll be any confusion about the documentary evidence, but if I put a document in front of you and you -- start asking you Page 7 the deposition A Oh, no- because of that? Certainly, I want to be sure of that. A It doesn't affect the memory at all or anything like that. Okay. Would you, please, brie?y give or give your date of birth, please. A Okay- ?122/61. And brie?y, again, would you please give us your educational background, sir? A Yes, sir. I graduated from Pine Bluff High School in 1980, went from there to the University of Mississippi, Ole Miss, obtained a BA Degree in English in 1984, and a minor in and I had an emphasis in premedieine, had planned to go to med school. Got out of school, worked for about, oh, probably a year driving a truck for Arkansas Power and Light Company while I studied for the medical college admissions test, took that test and applied to: medical school, but by that time I had been out of school for a period of time. I decided I probably needed to go back and learn how to study again, so I took the LSAT and took three law school courses at night at UALR. What year approximately or brie?y? A That would have been probably - I think I entered law school in the fall of '86 or '81, something like that. That's ?ne. Page 6 questions and you just want to make sure you're orientating yourself to the document, just say, "Wait until I've oriented myself with this document," and we'll go from there. A Yes, sir. And if at any time during the deposition you feel that you want to confer with Mr. Holmes, please, feel free to do so. Also, you know, with you being a lawyer, if at any time during the deposition you feel you need a break, just raise your hand -- A Okay. and we'll take the break; is that okay? A Yes, sir, that's ?ne. I've been drinking a whole lot of coffee this morning, so I may need one in about forty-?ve minutes or so. That's fine. It's doing what it's supposed to do, huh. Also, just for purposes of the record, are you on any medication? A Yes, sir. I take twenty milligrams of Piroxicam every day. That's an anti-inflammatory, anti-arthritic medication. I had a couple of herniated discs -- All right. A -- three years ago, had some surgery on one of them, and I have a degenerative disc condition in my neck. So I take it for that problem. Is it -- well, is there any reason not to go forward with Page 8 A And the medical college admissions process was such that, you know, I had like until - I had six or eight months before I could even get an interview when I applied, so that's why I went to went into law school. I decided I liked studying the law, made pretty decent grades that first senrester, and had a little money in the bank and could pay for law school and wasn't going to have to get any loans. So I decided to do that and I went to law school at night, worked at the -- in the Arkansas House of Representatives when they were in session and at the Friday Law Firm, and then, continued to go to law school at night for a period of time. I graduated law school in three and a half years, because I took I went to school every summer and Was able to speed up the night program, and obtained my law degree in December of 1989, passed the bar in February of '90 and was hired by the Friday Law Firm and went to work in March of 1990- Okay. And after working with the Friday Law Firm, did you cease worH ng there after you got appointed as the Insurance Commissioner? A Oh, yes, sir. Yes, sir. And again, just for purposes of the record, when did you get appointed as the Insurance Commissioner? A October Stat of 1996 is when the Governor offered thejob to me. I accepted it and that's the - I had ended up having surgery that next day for that neck condition, so I was off HARRISON VS. COFFMAN. ET AL Page 5 - Page 8 KAY BUTLER, 501-368-8134 Multi?PageTM J. MICHAEL PICKENS, 4-12-00 Page 9 Page 11 1 work for a month or so. I Went to work at the Arkansas 1 insurance contract, but - 2 Insurance Department in early November, I think, of '96 and 2 Right. 3 Commissioner Douglas worked with me to show me the ropes. And 3 A -- you know, my obligation is to that client, which is the 4 there was a transition period there where I wasn?t 4 employer. Probably fifty to sixty percent of my work was 5 Commissioner. I actually became Commissioner on January the 5 workers' comp and the rest of it was other things. 6 ?lb or 15th of 1997, and it's a four-year appointment. 6 And -- and regarding workers' comp, did you represent any 7 And from that time 'til the present you've functioned as 7 employers who were members of the Arkansas Self~Insurers 8 the Insurance Commissioner? 8 Association or 9 A Yes, sir, solely. No law practice or anything like that. 9 A You know, I probably did but as a lawyer I really would l0 And briefly, and I mean brie?y, what are your job duties 10 not have known if they were or not, to be honest with you. ll as the Insurance Commissioner? 1 1 Okay. And certainly, were you familiar while practicing 12 A The mission of the Insurance Department is to is 12 workers' comp in the Friday Law Firm with 13 consumer protection through insurer solvency and market conduct 13 A Yes, sir, I knew who ASIA was. 14 regulations- 30 we examine insurance companies to to make 14 Right. 15 sure that they're following the laws as far as treating the 15 A Just in a general way. 16 way they treat policyholders and work with policyholders. And 16 Gotcha. And certainly when you practiced workers' comp, 17 we monitor their financial statements on a quarterly basis to 17 did you ever have any cases before Judge Harrison? 18 make sure they're not having any ?nancial problems, solvency 18 A Sure, yes. 19 problem. And if they are, we work with them to try to work 19 And regarding your experience with Judge Harrison, did you 20 them out of those problems- 20 have any problems with Judge Harrison while you regarding 21 And when you worked at the Friday Law Firm for the period 21 your practice, sir? 22 of time you did, did you do as part of your practice, Workers' 22 A I like Judge Harrison personally. I thought we got along 23 Comp? 23 well. I was always treated respectfully in her Courtroom, and 24 A Yes, sir. Workers' Compensation and general liability 24 I think I treated her respectfully. I certainly disagreed and 25 defense- [had a small family law case load also, and 1 took a 25 I think my clients would have disagreed with some of her Page 10 Page 12 1 lot of different type of cases, but Workers' Compensation had 1 opinions. Of course, that -- that's not unusual; lswyen win 2 liability defense where I represented policyholders, and in 2 some and lawyers lose some, as do clients. I think by and 3 Workers' Comp cases, employers was the bulk of my practice. I 3 large probably I had better experience as a respondent's 4 did do some plaintist work. In fact, my last year at the 4 attorney in front of Judge Hanison than some other 5 Friday Law Firm, we had a couple of plaintiff's cases; one down 5 respondent's attorneys that I heard about did, and I'd like to 6 in Louisiana where I worked with a Louisiana attorney, and we 6 attribute that to the fact that again, I think we had a 7 were able to get a substantial settlement in that case. 7 respectful relationship. I hope I -- I hope I put my cases 8 0n Workers' Comp or Pt? 8 together pretty well and did a good job presenting them and, 9 A No, sir, that was Pl. 9 again, I never had any personal problems. I can say, though, 10 Right. 10 and I don't mind saying I disagreed with some decisions that 11 A Personal injury, yes, sir. So, if we didn't represent an 11 she rendered in cases that I handled. I agreed with some too. 12 insurance company or an employer, you know, I would - I - I 12 Right. 13 would take cases like that occasionally too. 13 A If I disagreed, I would appeal those cases if my client l4 And in the defense business, if you will, while you were 14 allowed me to do so. 15 with the Friday Law Firm, like what percentage of your time 15 Right. 16 insurance or workers' comp and defending insurance companies in 16 A And if memory serves, and I can't quote any cases, but I l7 terms of PI cases was spent in that practice, using again 17 know the Commission reversed Judge Harrison in cases that I 18 approximate as a a hundred percent as a guide to your 18 handled on occasion. l9 answer; okay? 19 And so the appellate process was a viable part of the 20 A One one small correction there. I represented 20 system itself?? 21 policyholders. 21 A Yes, sir. 22 Okay. 22 And if the Commission ruled af?rmative, if you so desired 23 A As you know, my obligation as a lawyer is to the to the 23 you could go to the Court of Appeals? 24 policyholder in a case like that or to the employer and not to 24 A Yes, sir. 25 the insurance company. They may pay the hill pursuant to the 25 Before coming over here to give your deposition today, did HARRISON VS. COFFMAN. ET AL Page 9 - Page 12 KAY BUTLER, 501-868-8134 NIuIti-PageTM 1. MICHAEL PICKENS, 4-12-00 - Page 13 Page 15 1 you have any conversations with Eldon Coffman about your 1 A Marcus Divine. I read his. I'm sorry. 2 potential testimony during this deposition? 2 Mr. Coffman, Mr. Wilson, Commissioner Humphrey, Julie 3 A No, sir. 3 Bowman, and Mucus Divine; is that correct? 4 Did you talk to Mike Wilso before you came over here 4 A Yes, sir- 5 today? 5 And when did you read those depositions? 6 A No, sir, not that I recall. 6 A About two weeks ago. 7 Okay. 7 Okay- And - 8 A lmean,lmay have?l?whenlheardCommissiooer 8 A 9 Wilson was deposed, may have heard - I heard - heard you 9 them a couple of weeks ago. 10 were deposed in the Coffman case.? 10 I understand. Approximame when were they provided to 11 Right. 11 you? Approximately. I'm not worried about a - 12 A 'And I think I'm supposed to be at some point in the 12 A A little bit at a time. Probably the ?rst ones in 13 future,? but that would have been the extent- And I think that 13 December, maybe, and then, I4 occurred at a Christmas party, Insurance Department Christmas 14 0f '99? 15 party, but that would have been -- that would have been the 15 A Yes, air. And then, as they became available, a little 16 only thing that was said. 16 bit, you know, since that period of time. 17 And before coming ovor here to give your deposition today, 17 Okay. And when you read those depositions, did you make 18 did you talk with Julie Bowman at all about her deposition or 18 notes of parts of the depositions? 19 your potential testimony? 19 A Other than underlining or circling something - in fact, I 20 A The same type of conversation with Julie that I may have Jonesboro, my wife was driving. We 21 had with Commissioner Wilson, and that would be, 'Heard you 21 were going to visit some family when Iread most of them on the 22 heard you were deposed. I think I'm supposed to be deposed 22 way up there and back, and I may have put - put no ifI 23 recently'. I did not ask het about the substance of her 23 disagreed with something, but other than notes, not really 24 testimony or anything like that. 24 anything. 25 Okay. And again before coming over today to give your 25 Just your own notes on the depositions and what-haveyou? Page 14 Page 16 deposition, did you talk to Marcus Divine at all about his 1 A Yes, sir. 2 deposition and/or your potential testimony today? 2 Okay. And prior to coming here today to give your 3 A [don't recall talking to Marcus at all- We did - we 3 deposition, have you - do you know who Steve Carter is? 4 haven't had that have not had that much contact since he 4 A I do know who Mr. Carter is. 5 went over to DHS. 5 And what do you know about who he is? 6 Okay. And regarding Brenda Turner, before you came over 6 A I know that he works with Wal-Mart. It's my understanding 7 here today, had you talked to Brenda Turner at all at any time 7 that he's an attorney- It's my understanding that he was - 8 pertaining to your testimony andlor, you know, her testimony? 8 was or is a member of the Workers' Compensation Committee for 9 A I have not talked to Brenda at all. 9 the Arkansas State Chamber of Commerce. And I - of course, I to Okay. 10 learned am back during the relevant time periods um we'll II A About this topic. 1 I talk about in this case. 12 And regarding Mr. Coffman, as you know, his deposition was 12 Right. And do you know if he has any connection with 13 taken. Had you read his deposition at all before you came here 13 14 today? 14 A [don't know that for sure; [expect he probably does. 15 A Yes, sir. I read the depositions of Commissioner Coffman, 15 Okay. 16 Commissioner Wilson, Commissioner Humphrey, Gary Davis, and 16 A Wat-Mart is self-insured and they're lawyers of self- 17 Judge Greenbaum, and those were provided to me at my request by 17 insureds- 18 Mr. Holmes, and I think that's the only 18 Do you know also if - if Steve Carter certainly in 1997 19 MR. HOLMES: Probably Julie's. l9 and I998 and today is a registered lobbyist also for Vial-Mart? 20 THE WITNESS: And Julie Bowman. 20 A I don't know that for sure. 21 BY MR. LAVEY: 21 And do you know Bill Walmsley? 22 Julie Bowman? 22 A I know who Mr. Walmsley is. 23 A And Julie Bowman, yes, sir. 23 Right. And in terms of Mr. Walmsley, how long have you 24 And did you say Marcus Divine also, or did you leave out 24 known Mr. 25 Marcus? 25 A I've known of Mr. Walmsley for a longtime, because I - HARRISON VS. COFFMAN. ET AL Page 13 - Page 16 KAY BUTLER, 501-868-8134 Multi-Pagem J. MICHAEL PICKENS, 4-12-00 Page 17 Page 19 1 he's been a friend of my family. My dad has worked with Mr. 1 Yes. 2 Walmsle'y and I mean, I didn't know him personally until I 2 A Okay- Well, I'm sorry. 3 became insurance Commissioner. 3 No problem. 4 0hy_ 4 A I would not have been Insurance Commissioner, though, 5 A But 1 know he's a lawyer in Batesville. 5 during that period of time. 6 And again, regarding Mr. Walmsley, if you know, was he 6 I undeer that you Were - you took over in - in ?97? 7 also was he also like Mr. Carter, on the on the Workers' 7 A Yes, sir. 3 Comp Committee of the Arkansas State Chamber of Commerce? 3 Right- 9 A Yes, sir, he was. 9 A Right. But no. No, I still wouldn't have had that 10 And for a while was it simultaneous that Mr. Carter and 10 does not change my answer, though. I would not have had any 11 Mr. was on that committee? 1] conVersation with anybody in the Governor's of?ce about the 12 I believe that's correct. 12 appointment. 13 And if you know, does Mr. Walmsley have any connection 13 Okay. Now, I'm going to direct your attention to 14 with 14 And you can move that paper clip if you want, Mr. Pickens. 15 A ldon't know that for sure. 15 A Okay. 16 Okay. And regarding Mr. Walmsley, before you came here 16 (THEREUPON, a thirteen?page document was marked 17 today did you ever talk to him about your deposition and 17 for identi?cation as Plaintist Exhibit IA and made 18 potential testimony today or anything like that? 18 a part of the record and is appended at Exhibit Tab 19 A Oh, no, sir. 19 1A.) 20 How about Mr. Carter? Have you talked to Mr. Carter? 20 BY MR. LAVEY: 21 A No, sir. I haven't talked to Mr. Carter probably in a 21 And also, even though it's a little bit duplicative, I'm 22 year and a half or two years. 22 going to and i'm also going to place before you what you 23 Okay. According to the record in Mr- Coffman's 23 providedjust before the depo, the facts to Mr. Coffman with 24 deposition, he became the chair person of the Workers' Comp 24 the Analysis of Commission Decisions, and I'm going to mark 25 Commission on December 19 of 1996, and prior to his becoming 25 that as Plaintiff's Exhibit l-A, so that it will be right Page 18 Page 20 1 the Chairperson, did you know Mr. Coffman? 1 there. 2 A i knew who Eldon was. I didn't know him well, and 1 2 A All right. 3 didn't know him personally, but i think Now, in terms of Plaintiff's Exhibit I, certainly the 4 couple of Workers' Compensation cases maybe together where he 4 covering pages from Mr. Walmsley to Joe Purvis, and we all know 5 represented a - a respondent and 1 represented the respondent 5 who Joe is. He's an an attorney. 6 in an aggravation?recurrence-type situation. 6 A Uh'buh. (Witness nodding head up and down.) 7 And 7 MS. PULLIAM: A rock-and-roll singer. 8 A I knew him by reputation also. 8 THE WITNESS: i guess you call that singing. 9 Okay. And regarding Mr. Coffman, regardig his 9 I've heard him. I guess that's what it is. 10 appointment to the Chairperson position of the Workers' Comp 10 BY MR. LAVEY: 11 Commission, did you have any conversations with the Governor 11 And regarding Plaintiff's Exhibit 1, other than the 12 about his appointment? 12 covering well, first of all regarding Plaintiff's Exhibit 1, 13 A No, sir- 13 have you an seen Plaintiff's Exhibit 1 before, sir - before 14 Okay- Or anybody in the Governor's of?ce such as the 14 today? 15 Chief of Staff, Brenda Turner, or anybody else in the in the 15 A have not seen the cover letter from Mr. Walmsley to Mr. 16 Governor's of?ce? 16 Purvis, and I had not seen the fax sheet that says, ?Filo Rule 17 A Not that I recall. 796' and it's a two-page fax sheet. lhad never seen either of 18 Okay, sir. 18 those three pieces of paper. The only part I've seen is the 19 A I would have still been practicing law at that time. 19 part that begins, IIAnalysis of Commission Decision." 20 Okay. Well, as understood it, you were appointed on 20 Right. And - and regarding the Analysis of Commission 21 October 31 of '96, and, of course, then you had your surgery? 21 Decisions, if you know, was that written by Mr- Walmsley? 22 A Right, right, but 1 was not I'm sorry. Would you tell 22 A My understanding is it it was. I don't have airy 23 me the date again of Eldon's appointment? 23 speci?c knowledge of that, though. 24 December 19, 1996, sir. 24 And regarding - in PX the Analysis of Commission 25 A '96, okay. 25 Decisions which is in for purposes of the record, that's HARRISON VS. COFFMAN. ET AL Page 17 - Page 20 - KAY BUTLER, 501-868-8134 Multi-Pagem J. NHCHAEL PICKENS, 4-12-00 Page 21 Page 23 the same as the Analysis of Commission Decisions, which is part 1 Do you agree with that -- that statement that's contained 2 of 2 in that paragraph? 3 A I haven't - again, I hadn't compared each page, but I 3 A Again, I don't really have any any facts to base as 4 believe it is. 4 opinion on one way or the other, and just to clarify that 5 And also, regarding Plaintist Exhibit l-A, it shows that 5 answer, or to explain it a little bit and my previous answer, I 6 you faxed that over to Mr. Coffman on September 15 of 1997; is 6 think the only issue is really we worked with the Commission 7 that true? 7 closely on when I was at the Insurance Department, we worked 8 A That's correct. 8 on the Drug Free Work Place Act that was passed. We worked 9 Okay. And as far as you know, Mr. Coffman got that; is 9 on we had some insurance companies who we we afraid were 10 that correct? 10 not paying the correct amount of premium taxes, and then, of 11 A Yes, ll course, the Commission derives their operating revenue from 12 Okay. Now, if you would go to sir- 127 premium taxes. So we worked with them to you know, to 13 A Uh?huh. (Witness nodding head up and down.) 13 resolve that situation. But again, I have heard people express 14 To the fax sheet, and as you've testi?ed, today's the 14 these opinions. They have expressed those opinions to me, but 15 ?rst time you saw that today? 15 I wasn't practicing law at the time and I really did not have 16 A Yes, sir, right. 16 any facts to base those - to base any opinion on. And I mean, 17 And going down to paragraph two of the fax sheet in 17 that's pretty much the only thing I can say about that. I 18 about two - mid-way down, quote, 'Since the appointment of the 18 really don't have an opinion. 19 current Chairman and the hiring of a new CEO, a climate of 19 And you never did phrase, we'll say, the opinion that's in 20 autocracy, distrust and sheer arrogance has developed. This 20 that last paragraph on page one of the fax sheet and the top of 21 initially became apparent whe a move was made to fire the 21 page two of the fax sheet, as an example to Mr. Coffman when 22 Director of the Self-Insured Division, who was hired with the 22 you met with him after you faxed over to him 23 full support of business and industry, and the unexplained 23 A I may have passul on - what I would have said to Mr. 24 ?ring of an Administrative Law Judge," end quotes. Do you 24 Coffman at that period of time, I don't have any specific 25 agree with that? 25 recollection of what I said, but what I I would hate said Page 22 Page 24 A Do I agree with that? is, 'Eldon, this is what people are saying about the 2 That statement that's - that's in that fax sheet. 2 Commission.? That?s what I would have said. [would have been 3 A I really don't have an opinion one way or the other, to be 3 a conduit for information. I wouldn't have been expressing a 4 honest with you. I can say that is that is what I was 4 personal opiion. 5 hearing from the Chamber people about this same period of time. 5 And if you're going to be a conduit for information, would 6 That's the that's the perception the Chamber folks had at 6 that be at the request of the governor's of?ce? Who would you 7 that period of time- But as far as whether the conduit for information for? 3 opinion, I don't - I don't really hate anything to base that 8 A Rather than go about this - I mean, it's -- 9 opinion on. I was taking care of the business over at the 9 Sure. 10 Workers' or the Insurance Department and and had not 10 A - you're the one asking the questions. I 1 worked closely with the Workers' Comp Commission. 1 I Right. 12 Okay. I'm going to direct your attention to the last 12 A But rather than go about this in a round about way, I'll 13 paragraph of the fax sheet in starting with, "As members 13 be glad to to start at the beginning and tell you about my 14 of ASIA and going over to the second page of the fax sheet 14 involvement in the entire situation if you'd rather do that. 15 in ending with, quickly leads us back to the adverse 15 I'll get to that in a minute, - 16 economic conditions that existed prior to Act 1?96," end quotes. 16 A Okay. 17 That last - that whole last paragraph on page one of the fax 17 but I want to lay a foundation ?rst. 18 sheet and ending at the top of page two of the fax sheet. 18 A Okay. 19 A Okay- This paragraph right there? (Indicating) 19 Right. 20 No, no. The paragraph that starts - 20 A Sure. I understand. What had I had been doing it at 2] A Oh, I'm sorry. Okay. 2] the request of the governor's of?ce. The governor's of?ce at 22 The last paragraph at the bottom of page one of the fax 22 some point in time - I was hearing things like this from 23 sheet, and then, it's completed and continues on page two of 23 Lee Pittman is the ?rst person that approached me. 24 the fax sheet, just that top part. 24 And who is Lee Pittman, sir? 25 A Okay. Okay. Yes, sir. 25 A Lee Pittman worked for the Arkansas State Chamber of HARRISON VS. COFFMAN. ET AL Page 21 - Page 24 KAY BUTLER, 501*868-8134 Multi-Page J. MCHAEL PICKENS, 4-12-00 Page 25 Page 27 1 Commerce. 1 Theywerenotthat speci?cwith me. Theyij 2 And was be involved with the Workers' Comp Committee? 2 complaints, general complaits. 3 A He probably was. He was a lobbyist. He worked with Ron 3 Now, regarding the I'm going to refer you to NH and 4 Russell and basically was -- 4 also to because they are the same, referring to the 5 Okay. 5 Analysis of Commission Decisions concerning Act 796 of 1993, - 6 A - just a Chamber lobbyist. We had run into each other at 6 A Yes, sir. 7 the -- toward the end of the session in 1997 at the Capitol, 7 it shows that you faxed it over to Mr. Coffin-n on is 8 and I think he made some comment, "Mike, I need to visit with 8 PX-IA on September 15 of 1997. Approximately when did you 9 you about some things at some point." Mr. Pittman called one 9 receive the Analysis of Commission Decisions concerning Act 796 10 day and said he wanted to come by. He came by late one 10 of 1993, sir? ll afternoon, and he was there maybe thirty or forty minutes and 11 A I probably received this within a day or two, no more than 12 relayed to me some of the concerns that the business community 12 a week of the time that faxed it over to Eldon. Because as 13 had about the Commission, which -- which are consistent with 13 said, Mr- Pittman first contacted me in late spring orme 14 these with these things that you've asked me about. 14 summer of 1997. I heard complaints from various people 15 In the fax sheet pages one and two that are - that I've 15 between, say, May of '97 and September of '97. I heard this 16 asked you about? 16 memo was ?oating around; I think I heard it from Mr. Pittma. 17 A Yes, sir. I can?t say he used the words -- 17 And my recollection is, although 1 can't be certain about this, 18 Right. 18 is that Mr. Pittman - 19 A autocracy and 19 THE WITNESS: What does that say? (Directing 20 I gotcha. 20 question to Mr. Holmes.) 21 A -- distrust and sheer arrogance, -- 21 MR. HOLMES: it says September 10. 22 Right. 22 THE WITNESS: September 10? Okay. That would 23 A - but they -- you know, they were displeased with the way 23 have been that would have been correct, September 24 the Commission was interpreting Act 796. And -- 24 10 of '97- Yeah, I forgot - think I think 1 25 (THEREUPON, a brief discussion was held off the 25 received this from Mr. Pittman- Page 26 Page 28 1 record between Ms- Pulliam and Mr. Lavey.) 1 BY MR. LAVEY: 2 BY MR. LAVEY: 2 Okay. And this being the Analysis of Commission Decisions 3 And at that particular time, was anything mentioned about 3 concernig Act 796 of 1993? 4 Judge Harrison by Mr. Russell - 4 A Yes, sir. And 1 requested it from Mr- Pittman for the 5 MS. PULLIAM: Mr. Pittman. 5 speci?c reason to send it to Mr. Coffman. 6 BY MR. LAVEY: 6 And was that after you had your conference with Mr. 7 - Mr. Pittman? 7 Pittman that you've testi?ed to? 8 A Mr. Pittman, no. 8 A Yes, sir. 9 Okay. Nothing mentioned about 9 Okay. Now, in terms of the you mentioned Mr. Pittman 10 A No. 10 and you mentioned Mr. Russell, Bob Russell, and 11 Okay. 11 A No, i didn't mention Bob Russell; i mentioned Ron Russell. 12 A Nothing mentioned about any Administrative Law Judge. The 12 Ron Russell, thank you. And regarding Ron Russell, what 13 focus was on the Chairman, basically. 13 was his position at that time when he made contact with you? 14 The Chairman, right, and the Commission's decisions? 14 A 1 think Ron the Director of 15 A Yes, air. 15 the State Chamber of Commerce, the Executive Director. 16 And the focus at that time was on the two-one decisions, 16 Now, again regarding the Analysis of Commission Decisions 17 Chairperson Coffman and Commission Humphrey being two?one 17 concerning Act 796 of 1993, at that particular time -- that's 18 majority and Mr. Wilson dissenting at that time? 18 both in and as I understand it, from what you know 19 A These complaints weren't that the complaints 19 Mr. Walmsley wrote that analysis? 20 were not that speci?c. It was mainly, you know, "We believe 20 A That's my understanding. He may have had help in doing 21 that the new Chairman is not a supporter of Act 796 and that 21 that. i don't know who from, but I yes, sir, i think he 22 the effect of that is that Act 796 is being crodcd.? 22 did. i 23 Because of the decisions coming out of the Commission? 23 All right- 24 A Yes, sir. But he didn't - he didn't say two-to?one 24 A it may have been he and Mr. Purvis together. 25 decisions or anything like that. I've read those depositions. 25 That's ?ne. And in terms - Well, in terms of - the HARRISON VS. COFFMAN. ET AL Page 25 - Page 28 KAY BUTLER, 501-868-8134 Multi-Pagem J. WCHAEL PICKENS, 4-12-00 Page 29 Page 31 1 letter to Mr. Purvis is September 4 of '97. 1 before that meeting, did you call Mr. Walmsley and ask him how 2 A Right. 2 he reached those facts and conclusions in that paragraph on 3 But in any event, before you received the Analysis of 3 page two that you've just testi?ed to? 4 Commission Decisions cocerning Act 796 of 1993, did you have 4 A No, sir, I did not. But again, that's consith with 5 any contact with Mr. Walmsley, any conversations with Mr. 5 what I was hearing from -- from Mr. Pittman. 6 Walmsley about the Commission?s decisions and the erosion of 6 Okay. And also from Ron Russell? 7 Act 793, [sic], as far as he was concerned? 7 A No, sir. I never heard anything from Mr. Russell. 8 MR. HOLMES: 796. 8 Just Mr. Pittman? 9 BY MR. LAVEY: 9 A Just Mr. Pittman- 10 796, thank you. 10 Anything from like Mr. Walmsley, other than what's 11 A I don't speci?cally recall. I may I may have, but it 11 written in here? 12 would have been in passing, because! don't think I actually 12 A No, sir, not that I recall. 13 met Mr. Walmsley until we - the meeting that's already been 13 Anything from Mr. Steve Carter as far as you know? 14 talked about where Iwas present in Mr. Coffman's of?ce. 14 A Yes, sir- 15 And would Mr. Divine was also present at that time? 15 You did? 16 A That's correct. And I think that was in I998 sometime. 16 A Yes, sir. Mr. Pittman and Mr. Carter Were the only two 17 Was it was it late or early '98? 17 people that I recall speci?cally contacting me about this 18 A I would have to have my recollection refreshed on that, to 18 concern during this period of time. 19 be honest with you. I can't remember exactly what it was. 19 And did you hear from Mr. Carter pertaining to the 20 This was not a big blip on my radar screen, to be honest with 20 Analysis of Commission Decisions concerning Act 796 of I993 at 21 you. 21 or about this time, which would be in September of '97, sir? 22 And now, -- 22 A You know, I don't recall for certain that I remember - 23 A Whenever they whenever these folks have testi?ed the 23 I think I remember during the meeting with Pittman or sometime 24 meeting is, that would be consistent with my recollection, from 24 soon thereafter, you know, he mentioned that Mr. Carter had 25 what I remember. 25 some concerns. He was on the Workers' Comp Committee and he Page 30 Page 32 1 And I'm going to direct your attention to page two of the 1 may be calling me to relay his concerns, but - and there may 2 Analysis of Commission Decisions concerning Act 796 of 1993, to 2 have been a telephone call from Mr. Carter at some point. I 3 the third paragraph down on page two where it star1s, quotes, 3 heard from Steve. It was very brie?y. It was just basically, 4 "My examination of these decisions leads me down to and are 4 you know, 'Ditto on what Mr. Pittman is telling you,? that kind 5 well reasoned and persuasive," ed quotes, that third paragraph 5 of thing. 6 down from the top on page two of the Analysis of Commission 6 And pretty much was that what's in that third paragraph on 7 Decisions. 7 page two? 7 8 A I see that. 8 A It's consistent with that. 9 Okay. Do you agree with thatsubstance. 10 agreewiththat? 10 A Yes, air. 1 1 A Again, I don't really have any facts to base an opinion on 11 Okay. Now, again, prior to receiving the Analysis of 12 there. I and let me clarify it also. I mean, I I - I'm 12 Commission Decisions concerning Act 796 of I993, which is, you 13 a strong supporter of Act 796 as the State Insurance 13 know, on or about September 9 or 10 of I997, and sending it 14 Commissioner, because I believe it's been good for our Workers' 14 over to Mr. Coffman on September 15 of 199?, other than hearing 15 Comp market for a number of reasons. I also believe that by 15 from Mr. Pittman and Mr. Carter, were there any other 16 and large it's fair to injured workers, and I think it's 16 complaints you heard about the operation ofthe Workers' Comp l7 bene?tted injured workers, and you know, you've got the copy 17 Commission, their decision andlor Mr. Col'fman's decisions at 18 of the - my notes from a speech that I gave. That's my 18 the Workers' Comp Commission? 19 opinion if, if, in fact, this Commission or any other 19 MR. HOLMES: Are you asking about the decisions 20 commission was doing anything to erode Act 796, I would be 20 of the Commission? 21 opposed to that as the State Insurance Commissioner. But 21 MR. LAVEY: Yes- 22 again, this these are not my words, and I really don't have 22 THE WITNESS: I can't recall specificaily ifI 23 any opinion one way or the other about that paragraph. 23 heard from other people. I was hearing I mean, 24 Before the meeting we're going to be getting to with Mr. 24 just around town, basically. You know, I was hearing 25 Walmsiey, Mr. Coffman, and Mr. Divine and yourself, did you 25 complaints which I which were consistent with HARRISON VS. COFFMAN. ET AL Page 29 - Page 32 KAY BUTLER, 501*868-8134 Multi-Pagem J. MICHAEL PICKENS, 4-12-00 Page 33 Page 35 1 you brow, with this. I can't really tell you who I with, "These and other similar cases and ending with, 2 would have heard those from necessarily, just, you 2 appears to he in the minority a substantial portion of the 3 know, people at lunch, people around the Capitol, 3 time," end quotes. 4 things like that. There was talk 4 A Yes, I see that. 5 BY MR. LAVEY: 5 Okay. And again, do you agree -- or at that time, were 6 And when you heard from Mr. Carter at or about the time 6 they also reporting that Commissioner Wilson was making 7 you have referenced in your testimony, when he was making his 7 vigorous spirited and Vigorous dissents in the cases that 8 complaints to you, did he mention Judge Harrison at all at that 8 they were complaining about? 9 time? 9 A Again, I did not have any speci?c knowledge of that at 10 A I don't think he did. 10 that time because I had other things on my plate, but that's 11 Okay. ll consistent with what I was hearing from Mr. Pittman and Mr. l2 A [don't think any speci?c Administrative Law Judge was 12 Cartermentioned. The focus was on the Chairman at that particular 13 Okay. NOW, after receiving the Analysis of Commission 14 time. 14 Decisions concerning Act 796 of 1993, regarding that, the 15 Were Administrative Law Judges in general mentioned? 15 Analysis of Commission Decisions concerning Act 796 of 1993, 16 A Not that I recall. 16 other than sending a copy of it over to Chairperson Coffman, do 17 Okay. From the Commission obviously? 17 you - did you send a copy of it, as an example, to 18 A Yes, sir. 18 Commissioner Wilson? 19 Okay. 19 A To Commissioner Wilson? 20 A Let me clarify that also. The only way they would have 20 Yes, at or about that time in September of '97, sir. 21 been mentioned is, you know, "The Commission is af?rming and 2] A I don't think I did. 22 adopting too many bad ALI decisions.? 22 How about 23 Okay. 23 A I'm not saying that's impossible, but I sure don't recall 24 A That's that's the way they would have been mentioned. 24 doing that. 25 But again, the focus was on the Chairman and on Commission 25 How about to Commissioner Humphrey? Page 34 Page 36 decisions. 1 A No, [would not have- 2 And that would have been from Mr. Pittman and/or Mr. 2 Okay. And again, regarding the Analysis of Commission 3 Carter? 3 Decisions concerning Act 796 of 1993, did you ever send a copy 4 A Yes, sir. 4 of this to the governor's of?ce? 5 Or would it have been from both of them? 5 A Yes, sir. I probably would have done that, if they didn't 6 A From both of them. 6 have it already. Mucus Divine may have had it already. 7 Okay. And again, when Mr. Pittman is making those 7 And normally in your procedure if he sent you something 8 statements to you, is he saying that, have to get rid of 8 like that, would you have sent it over to Mucus Divine at that 9 some of the ALJ's at the Commission-'? 9 time or Brenda Turner, who was the Chief of Sta?? 10 A No. 10 A Oh, yea. I would have worked through my liaison, which 1 1 When Mr. Carter made, in substance, the same remark to you ll would have been Marcus Divine. 12 that you've testi?ed to, sir, was Mr. Carter saying that we 12 At or about this time again, at or about the time you 13 have to get rid of some of the ALJs at the Commission, because 13 received the Analysis of Commission Decisions concerning Act 14 they're not interpreting 796 like we think? 14 796 of 1993, do you recall if you ever had any conversations at l5 A No. Again, the focus was on the Chairman. 15 that time with Brenda Turner as distinguished from Marcus 16 Okay. And again, 'he' being the conduit in the sense of, 16 Divine? 17 ?He's af?rming those opinions, so that's where we're getting 17 A 1 don't recall any speci?cally, but I might have If 18 the bad law, him and the Labor Commissioner."? 18 Brenda called me and said something like,? Mike,? - now, 19 A You'd have to ask Mr. Pittman and Mr. Carter that, but 19 there were calls - there was one or two calls where Brenda 20 that would be my understanding, yes, sir. 20 called me and said, "Mike, I'm hearing things like this, you 21 Right- Right. And briefly, if you would, sir, would you 21 know, like we've been talking about. Will you please help us 22 go to the last page of the Analysis of Commission Decisions 22 see if there's any validity to that? I'm not a lawyeridon'l 23 concerning Act 796 of 1993, both in, you know, and PX-IA, 23 know anything about Workers' Comp law, you know. Eldon is an 24 whichever one you want to go to, they're identical. And 24 appointee of the Governor, he's our friend. We need to check 25 regarding the last page, agai, that top paragraph starting 25 out and see what's what's going on here.? HARRISON VS. COFFMAN. ET AL Page 33 - Page 36 KAY BUTLER, 501-868~8134 Mum-PageTM 1. MICHAEL PICKENS, 4-12-00 Page 37 Page 39 1 At or about the same lime? 1 indicia, so it does not appear to me that the second 2 A Yes, air. 2 and third pages were a part of this original 3 Okay. 3 document. 4 A It's sometime. And again, I don't know speci?wa when- 4 MR. LAVEY: From reading the covering letter 5 Right. Would it be as best you recall, the last part or 5 from Mr. Walmsley to Mr. Purvis, he's enclosing the 6 '91 or maybe the ?rst part of '98, sir? 6 Analysis of the Commission Decisions, and I agree 7 A It probably would have been the last part of '97. 7 with that. 8 Contemporaneous with everything we talked about. 8 MR. HOLMES: And I guess I'm - I don't have any 9 Okay. 9 objection to it being attached as - for whatever 10 A And it's already referenced in here, but when Dwayne Hodge to reason to the deposition, but if this were to be used 11 was ?red during '97 Workers? Comp Conference, complaints 11 as evidence at some point in time, I don't have - we 12 heated up a little bit during that period of time. I think 12- don't have I don't have any idea what this --. 13 there was a lot of concern that, you know, that was some 13 these two fax two pages are or with they're l4 indication or corroboration of these things -- these concerns 14 who drafted them, when they W613 drafted 0t 15 that the State Chamber folks had. 15 about it, and it does not appear that they were what 16 And regarding Judge Hodge, if you recall, wasn't he 16 Mr. Walmsley wrote or What he sent to Mr. Purvis. Do 17 discharged in August of '97? 17 you know? 18 A He was discharged, my understanding was, during that 18 MR. LAVEY: Y, I know what you're saying, 19 Workers' Comp Conference in '97. If it was in August, that's i9 right, exactly. I -- no, I don't know right now. 20 when it would have been. 20 I'm going to have to check it out. 21 Okay- And if you know, wasn't he ?red for 21 MR. HOLMES: Okay. 22 insubordination? 22 MR. LAVEY: I'm going to have to check it out. 23 A That's my understanding also. 23 MR. HOLMES: Well, with that - the 24 And regarding his discharge, did you ever discuss it as an 24 understanding that I don't have any - there's no -- 25 example with Chairperson Coffman, the discharge of Hodge? 25 to use Ms. Taylor's language, there's no foundation Page 38 Page 40 A I don't have any speci?c recollection of that. I heard for the second or third pages. 2 it was for insubordination, and that's certainly a legitimate 2 MR. LAVEY: Right. 3 reason to terminate somebody. 3 MR. HOLMES: And I you know, we could attach 4 And if and again, just for purposes of the record 4 whatever you want to attach, hut 5 regarding ALI Hodge who was discharged, did you ever discuss 5 MR. LAVEY: Right. 6 that with Commissioner Wilson? 6 MR- HOLMES: as far as introducing these in 7 A Not that I recall. 7 evidence right now, I don't think we're them. 8 MR. LAVEY: And now, I'd like to make and 8 MR. LAVEY: Okay. As far as those two, I agree 9 PX-IA part of the deposition. 9 with that. 10 MR. HOLMES: Let me say with respect to and 10 MR- HOLMES: Yeah, right. 11 maybe we can flush this out. If you look at the 11 MR. LAVEY: have no problem with that, but 12 first page of the cover letter, it refers to the 12 again, Ijust want to make DH and Px-tA part of the 13 Analysis of the Commission Decisions. 13 deposition. 14 MR. LAVEY: Right. 14 (THEREUPON, two documents previously marked for 15 MR. HOLMES: And it has two indicia of facsimile 15 identi?cation as Plaintist Exhibit 1 and 16 machines at the top; one from Dover and Dixon, and 16 Plaintiff's Exhibit t-A were made a part of the 17 one from Management Claims Service. record and are appended at Exhibit Tabs 1 and 18 MR. LAVEY: Right. 18 BY MR. LAVEY: 19 MR. HOLMES: And then, you go to the next page 19 Now 20 and it's not -- and this -- the next two pages, the 20 MR. HOLMES: If you're at a stopping point, why 21 fax sheets are not referenced in the cover letter and 21 don't we take our break now. 22 do not have the Dover and Dixon indicia of the 22 MR. LAVEY: Yeah. Sure, sure, that'i good. 23 facsimile machine. And then, you get to the third 23 (OFF THE RECORD) 24 page and you have the document that's referenced in 24 BY MR. LAVEY: 25 the cover letter and again have the Dover and Dixon 25 I'm going to direct your attention to the meeting that we HARRISON VS. COFFMAN. ET AL Page 37 - Page 40 BUTLER, 501-868-8134 Multi?Pagem J. MICHAEL PICKENS, 4-12-00 10 12 13 14 Page 41 referenced earlier at which Mr. Coffman is present, you are present, and Marcus Divine is present, and Mr. Walmsley is present. A Uh-huh. (Witness nodding head up and down.) And did that meeting take place in Mr. Coffman's of?ce? A It did. Okay. And again, approximately when was that, the latter part of '97 or the ?rst part of '98. as best you recall it, sir? A My recollection is it was sometime in the Spring of '98. That's my best recollection, -- Okay. A -- but that could be incorrect. And when you say, "Spring," according to you, are you Page 43 Okay. And could you, please, tell me again, as best you recall it, who said what during that meeting. A I don't have any speci?c recollection of who said what. Again, the gist of the meeting was from the State Chamber's perspective, 'We have these cooerns,? that were consistent with the things we've talked about earlier in the deposition and the things that - That are re?ected in the Analysis of Commission Decisions concerning Act 796 of 1993? A Yes, sir. And Mr. Coffrnan responded to those concerns and he-- itwasveryelearthat Mr. Coffman did not agreewith 7 those concerns, but he was willing to listen to the concerns. He didn't agree with them, and I think Chairman Collins, the way he came down was, 'Maybe we have been af?rming and 15 referencing, as an example, March or are you referencing - 15 adopting too many decisions, and maybe it would be better it" we 16 A March or April. 16 wrote more if I wrote more opinios, so that it was clear 17 March or April. Okay. Of '98? 17 what the decision was based on.? Because that seemed to be one 18 A Of '98. 18 of the sticking points or problem, is that the af?rming and 19 Okay. And who called the meeting at that time; do you 19 adopting of some of the Administrative Law Judge opinions 20 recall? 20 looked like a back-door way, maybe, to change or code Act 796 21 A I don't recall who called the meeting. 21 rather than rather than doing it straight on and say, you 22 Okay. And who requested that you be at that meeting? 22 know, ?Here's our reasoning in the case.? So, Commissioner 23 A I don't know that anybody specifically requested that I be 23 Coffman thought that maybe it? number one, he defended the 24 at the meeting. I had been involved in trying to determine 24 Commission decisions that they had problems with; and number 25 whether or not the Chamber's concerns were based in fact or 25 two, he said, "Well, maybe if I'd - if write opinions and Page 42 Page 44 1 whether they were anecdotal and, you know, had just been . 1 people are able to see my reasoning, then these these 2 involved in the process and I think it was reasonable that I - 2 concerns and complaints will be resolved.? 3 you know, that I attend that meeting. I don't know that 3 At that meeting, as an example, again directing your 4 anybody speci?me requested that I be there, although Marcus 4 attention to the Analysis of Commission Decisions concerning 5 Divine may have may have done that. 5 Act 796 of 1993, and again going to page two of that analysis, 6 And was Mr. Walmsley there as a representative of ASIA 6 whether it's or to the third paragraph from the 7 ?rst, if you know? 7 top, basically was -- was Mr. Walmsley stating that, again, the 8 A My understanding was as - as I sat there, that he was 3 opinions of the Commission were eroding or degrading Act 796 of 9 there as a representative of the Workers' Comp Committee of the 9 1993? Was that his position and the position of the Chamber of 10 State Chamber of Commerce. 10 Commerce at that meeting? ll Okay. As best you recall it? II A That was the position that Mr. Walmsley advocated, yes. 12 A Yes, air. 12 But now - and agai, my understanding was he was there on 13 'lhat's ?ne. And at that meeting, did you have a copy of 13 hehalfof the Chamber. l4 the Analysis of Commission Decisions concerning Act 796 of 14 And during that meeting also, did Mr. again 15 1993, which is or l-A? 15 verbaline that again the erosion occurred because of 16 A I'm not sure that I brought a copy of this to the meeting, 16 Chairperson Coffman agreeing with the Labor Commission that the 17 but there were copies of it at the meeting. 17 decisions were taro-one with Commissioner Wilson dissenting at 18 At the meeting, right. 18 that meeting? 19 A Mr. Walmsley bad one. l9 A Again, I don't think he was that speci?c, but it - it 20 Okay. 20 was based on the decisions, yes. it was based on the 21 A And Mr. Coffman also had prepared an analysis, I think, or 21 decisions- And again, I appreciated, and I think Mr. Walmsley 22 at least a numerical -- you know, we were we a numerical 22 appreciated Chairman Coffman's willingness to lisien to 23 breakdown. In other words, we found for respondents in 23 concerns like that. expect if Labor if Allen Hughes or 24 number of cases and claimants in number of cases, and so 24 Don Beavers had those same type that they would 25 forth. 25 approach Mr. Coffman and visit with him about them, too. HARRISON VS. COFFMAN. ET AL Page 41 - Page 44 KAY BUTLER, 501-868-3134 Multi-Pagem J. WCHAEL PICKENS, 4-12-00 Page 45 Page 47 1 That's speculation on your part; is that right? 1 and Mr. Waimsley that you just testi?ed to, at or about that 2 A That is speculation. 2 time? 3 Right. 3 A Did he express that to me? 4 A But that's my that's Allen listens to people and 4 Yeah, or was it before? 5 listens to concerns, he's very ope?minded, and i would expect 5 A No, he would have expressed that long before. 6 he would do that. 6 And again, during that meeting was there any complaints as 7 And at any time during that meeting, did Mr. Walmsley 7 an example about Judge Harrison? 8 verbatim in substance, obviously - nobody can remember things 8 A Not that I recall. Not that I recall. But again, I can't 9 word for word, whether you're a lawyer or not 9 I can't deny that. 10 A Right. 10 Right. Justthe?what you maleusttheALJs neuter 11 - but did Mr- Walmsley verbalize again that the 11 gender deciding wrong, and the Commission affirming them? 12 Administrative Law Judges were interpreting the law wrong as 12 A Basically. And again, that was one part of the complaint. l3 far as he was concerned and the problem again was being created 13 The other part was the Commission themselves. 14 by Commission - Commissioner Humphrey and Chairperson Coffmas 14 Right. 15 af?rming those decisions? 15 A Right. 16 A That was part ofthe concern. But again, the other part 16 Because of them af?rming -- 17 of the concern was that the Commissio themselves or the the 17 A Yes. 13 group, in general 18 -- the 19 Right. 19 A Yes. 20 A -- was misinterpreting the law and that was having the 20 Okay. 2] effect of eroding Act 796. 2] A Yes. I guess what I'm divided into is, number one, the 22 And at any time during that meeting, did Mr. make 22 af?rm and adopts, and then, in cases actually where the 23 reference to the fact that some of the Administrative Law 23 Commission was wrote a full-blown opinion. In other words, 24 Judges at the Commission had to go, the Commission had to get 24 you've got the af?rm and adopts on one hand; that Was part of 25 rid of them? 25 their complaint. The other part of the complaint was where Page 46 Page 48 A I don't recall that being mentioned at that meeting. I 1 Chairman Coffman had written an opinion, and they disagreed 2 can't -- i mean, this this was a free-wheeling discussion, 2 with that part of it- 3 but i don't recall that being mentioned. 3 And again, in the two?one context of Mr. - as an example, 4 And at that - 4 Chairperson Coffman writing an opinion, joined in by 5 A 1' not saying it couldn?t have been, though, to be honest 5 Commissioner Humphrey, and then, Commissioner Wilson 6 with you, but it - 6 dissenting? 7 But you would deny it? 7 A i think that's the way it would work, just because of the 8 A lfit was, it was a very minor point and I don't recall 8 way the Commission is setup- 9 any - anybody's specific names being motioned and that's 9 Okay. in the fall of 1997, whether it be early fall or 10 again, I don't recall it being mentioned. 10 late fall, but during that period of time, did Marcus Divine 11 Okay. And do you recall what, if anything, Marcus Divine ll ever make any ever inform you of complaints by Mr. Carter of 12 was saying - said during that meeting? 12 Wal-Mart and Brent Stephenson of Georgia-Paci?c, who were 13 A Marcus Divine didn?t say much of anything, to be honest 13 members of 14 with you. Marcus was mainly there to listen as was i. i mean, 14 A i know who Brent Stephenson is. Marcus Divine never 15 I felt like Marcus and 1 Were the two objective listeners in 15 mentioned his name to me. I was getting complaints. I was 16 the process and that you know, the Chamber was there to 16 forwarding those 0 over to Marcus at the Governor's of?ce, 17 express their concerns. 17 again just passing on information. Marcus said, 'Yeah, I'm 18 Right. 18 hearingthesamething,? thosetypethings. Butt-ever-l 19 A Eldon was there to respond and we were there to - you 19 didn't know other than knowing who Brent Stephenson was, l'd 20 know, to basically be objective and to to see what the 20 never - I had never heard his name mentioned is this matter at 21 problem was or if there was a problem And again, Marcus' only 21 all, in the Workers' Compensation issue until i read the 22 concern that he expressed to me was whether or not the 22 depositions. 23 Commission is following the law. Is the Commission following 23 Brent Stephenson is a lobbyist for Georgia?Paci?c? 24 the law or are they not following the law? 24 A Apparently, yes, sir. 25 Was that at this time you had the meeting with Mr. Coffman 25 Okay. HARRISON VS. COFFMAN. ET AL Page 45 - Page 48 KAY BUTLER, 501-868-8134 Multi-Pagem J. MICHAEL PICKENS, 4-12-00 v?nt?nh?u?nt-np?no?ns?n?o?n Page 49 A I suppose he still is. Well, at that time we're talking about? A Yeah, yes. Yes. Now, was it ever reported to you at -- the latter part of April or the ?rst part of May of 1998 of a meeting between Steve Carter and Chairperson Coffman where Mr. Carter told Chairperson Coffman that because of his written opinions he should quit as the Chairperson of the Commission? A I read about that in the depositions, but I can't say that -- Eldon and I may have talked, because at the same time I was passing the complaints over to the governor's of?ce, I had mentioned some of those complaints to Eldon personally, too. You know, I said, "Eldon, here's what -- here's what we're hearing." And what -- what did you tell Mr. Coffman at -- at or about that time that you were -- that you were hearing? A The same type things we talked about earlier in the deposition. Okay. Page 51 And who attends such conferences? A Basically, all attorneys that practice in the area of Workers' Comp, whether it's on the respondent's or the claimant's side, claims adjusters, members of self-insurers, just -- and basically anybody that Wants to can attend. The Administrative Law Judges attend and all the members of the Workers' Comp Commission. Okay. And regarding PX-6, Was that just an outline that you used to deliver your talk at that time? A Yes, sir. As best I recall, you know, a few days before the -- before the talk I dictated these and my secretary typed them up, and as you can see they're just -- they're pretty rough. In fact, I think she even misspelled some words from time to time, but yes, sir. And certainly regarding were you just limited to what was in there, or did you talk about other subjects that are not listed in A I may have explained something. When I speak, I pretty much contemp -- or cxtemporaneously anyway. And as I 20 A About the -- about the Chamber's concerns. 20 recall, I -- you know, I may have elaborated on a point or two, 21 About again the two-one decisions and adopting the ALI's 21 but this is the gist of what was said. 22 opinions? 22 Okay. At -- again, at that meeting at which you've 23 A Basically, yes, sir. 23 testi?ed you talked to that Workers' Comp meeting or 24 Okay. Now, -- 24 conference in Hot Springs in 1997, did you, in fact, also 25 A But I don't recall him ever telling me he had a meeting 25 criticize Eldon -- Mr. Coffman and his opinions? Page 50 Page 52 with Carter where Carter said, you know, "You need to step 1 A No, sir, I did not. 1 think Eldon I read that in 2 aside.? 2 Eldon's deposition. I don't know that Eldon was even in the 3 And as an example, did anybody - as an example, other 3 room the whole time I was delivering this talk. Not only would 4 than Mr. Coffman, did anybody else such as Mr. Carter or any 4 it have been impolite to go over there and criticize anybody, I 5 other person inform you of such a conversation between 5 wouldn't have I mean, Ijust - I wouldn't have done that. 6 Chairperson Coffman and Steve Carter? 6 I Eldo was under I think at that time I felt his 7 A Not that I recall. 7 again, you'd hate to ask Eldon what he felt. My perception was 8 (THEREUPON, a three-page document was marked for 8 that he was hearing these complaints. He didn't think they 9 identification as Plaintiff's Exhibit 6 and made a 9 were accurate and they werejusti?ed and I mean, you can 10 part of the record and is appended at Exhibit Tab 6.) 10 read in here on - let me see what paragraph. On the ?rst 11 BY MR. LAVEY: 11 page, paragraph one, two, three, four, ?ve down, I say, "That 12 Okay. Now, I'm going to direct your attention to 12 this crisis," of course and this is the 1993 Workers' Comp 13 your notes of that. Do you have a copy of this, sir? 13 crisis, which I talk about a little bit before that, ?was 14 A Oh, yes, sir, I do, sir. I'm sorry. 14 caused by liberal, expansive Commission and Court decisions, 15 No problem. I'm -- l'm calling that 15 which to a very large extent simply ignored the true purpose of 16 MR. LAVEY: Off the record. 16 Workers' Comp insurance.ll That's what I would have said. Now, 17 (OFF THE RECORD) Eldon may have - may have heard that or somebody may have 18 BY MR. LAVEY: 18 heard that and, you know, told Eldon that was - that I 19 And regarding these are your notes; is that correct? 19 criticizing him. I think it's pretty clear that -- just from 20 A Yes, sir, from a talk that 1 gave at the 1997 Workers' 20 reading this document, and that's one reason i wanted you to 21 Comp Conference in Hot Springs. 21 see it, that 1 did not criticize Chairman I warned 22 Okay. And approximately what month was this given? 22 against eroding Act 796 of 1993. I did do that, he?'nune I 23 A I think in late August of '97. 23 believe it's had a positive effect on our market, for a number 24 Late August of '97? 24 of reasons which I explained in here, and I don't think it's - 25 A Right- 25 and again, I believe that by and large, it's fair to the - to HARRISON VS. COFFMAN. ET AL Page 49 - Page 52 KAY BUTLER, 501-868-8134 Multi-Page?? J. MICHAEL PICKENS, 4-12-00 BY MR. LAVEY: Now, certainly regarding yourself, haven't you criticized in presentations, whether it be to the Legislature or to seminars like that Courts of Appeals decisions and Supreme Court of Arkansas decisions as eroding Act 796? A I have been -- I have been critical of some of those decisions, yes, sir. I would have - I would have been critical and have ban critical and will be critiCal of any Opinions that I believe are -- constitute judicial activism that attempt to erode Act 796. Okay. A And -- and again, the reason for that is, it's had a positive effect on our market. And I don't need to go into -- Sure, right. A -- that part of the speech; you can see why that is. But Page 53 the injured worker and -- I mean, I think that position is 2 clear and I -- I didn't back up from thatpretty strong in that point. But I said a lot of other things 4 as you can see here, too. 5 MR. LAVEY: And for purposes of record, I'd like 6 to make PX-6 part of the deposition. 7 (THEREUPON, a three-page document previously 8 marked for identi?cation as Plaintiff's Exhibit 6 9 was made a part of the record and is appended at 10 Exhibit Tab 6.) hh?h?b baton?O MbWN?ohom?lotua Page 55 Harrison had to go? A I'm sorry, Mr. Lavey. Would you repeat that question? Sure,Ishall. April or May of 1998 that Steve Carter wanted the Commission to terminate an ALI who was either Mike Ellig or Eileen Harrison? A No, I can't say that that was ever reported to me. Did you ever hear that before your deposition before you read the depositions? A No,Ireally?Ineverreally heardthat. Okay. A At some point - at some point the focus changed from the Commissioner, as I said, the af?rms and adopts. It changed to Administrative Law Judges to some extent, because again the concern was, I think, from the business community, 'Theae folks are not following the law, and our people can't get a fair shake in the Courtroom.ll That was the concern. And again, I don't remember how that was expressed, but that was their - that was their obvious concern. And when it was clear that Commissioner Coffman had done a pretty good job of explaining his decisions, I think the focus shifted on the -- you know, are the Administrative Law Judges being fair, are they following the law. That that was always the concern, are they following the law- Approximny when did the focus, according to you, shift from, we'll say, Chairperson Coffman to the Ale and as you wejust about didn't have a Workers' Comp market in '93, and I was practicing law at the time, and I didn't necessarily believe that, but since I've become Insurance Commissioner and seen what the state of the market was at that time, my perspective has changed a little bit. And I believe what I was hearing is true. And you know, people don't complain- When they can't find Workers' Comp insurance in this state, they don't complain to the Workers' Comp Commission, they complain to the Arkansas Insurance Commissioner and the Insurance Department. And they want to know why their Workers' Comp rates are so high and why they can't find any Workers' Comp coverage. So we catch we catch a big - when the market has b?ni?Ob?II?I tutor-v0 problems, at the Insurance Department we catch the brunt of h? :5 that criticism. So, that's that's why my that's what my concern is all about. And regarding in 1998, maybe April or May, around in there, but in in I998, did you ever have a conversation with Mr. Coffrnan where you, in fact, told him that be had to change home-IQ his written opinions or else he he would be gone? A have never told Mr. Coffman that. You deny that? A I do deny that. Okay- Now, has it ever been reported to you that in April or May of 1993, that Steve Carter in a conversation with Chairperson Coffrnan stated that either ALI Mike Ellig or Eileen Page 54 Page 56 stated in reference to yourself, and them not following the law? A At some point after the -- the meeting with Chairman Coffman that we've talked about earlier. That would be, according to you, in March or April of '98? A Of '98, yes, sir, somewhere along in there. Okay. And Was it ever reported to you that - again, that both Mr. Carter and Mr. wanted in addition to Mr. Ellig or Judge Harrison going, that Judges Mazzanti and Blood should also go? A I never -- never said they mentioned any speci?c judge to me. Okay. A I want to make that clear. I don't think any specific judge Was mentioned to me. I think those, what, three or four judges you mentioned -- Yes. A -- you know, the talk or the opinion of those judges would be that they were more the claimant oriented judges. By the business community? A I think pretty much by everybody. I think if you're a claimant's attorney you would like to have yoitr case in front of one of those judges. If you were a respondent's attorney and you had your choice, you probably would not want to have your case in front of one of those four judges. But again, I HARRISON VS. COFFMAN. ET AL Page 53 Page 56 KAY BUTLER, 501-868-8134 Multi-Pagem J. MCHAEL PICKENS, 4-12-00 Page 57 Page 59 i don't I don't remember anybody speci?cally being singled A She was not -- when I was at the Department, she Was 2 out, And I mean, these you know, these judges 2 she had already gone, I think, and I came into the Department 3 for years have had this reputation, i guess, in the community. 3 in January of '97, so I'm not sure -- she was not there when I 4 When] ?rst started practicing law in '90, March of 1990, I 4 was there, as best I recall. I could be incorrect about that, 5 think that was the opinion of those four judges. And again, 5 but I sure don't remember her being there than, 5 in gene"; mpumio. type .. type opinion, 6 And -- well, when she was at the Department or before you, 7 And in terms of when the focus changed, and according to '7 you know, came came over there after your surgery, had you 8 you no names were mentioned except Administrative Law Judges in 8 known Julie Bowman? 9 general, was there any conversation about those some 9 A I knew her, but I didn't know her very well. 10 Administrative Law Judges had to go? 10 Okay. And then, alter she left the Special - as a 11 A Not that I recall. 11 Special Prosecutor for the Workers' Comp Fraud Investigative 12 Okay. 12 Unit, if you know, did she go -- then go to work as the General 13 A Not that I recall. 1 mean, there were some concerns 13 Counsel for the Arkansas Development Finance Authority? 14 expressed, de?nitely. You know, are they following the law. 14 A She did. 15 And names may have been mentioned as to, you know, here are 15 And now, regarding the - brie?y, Workers' Comp Fraud 16 some people that we don't think are following the law, 16 Investigative Unit at the Insurance Department, that was set up 17 necessarily, but I don't recall anybody saying anyone has to be 17 under Act 796; is that correct? 18 terminated, needs to be terminated, should be terminated. But 18 A That's right. 19 again, these judges had that reputation far before any of this 19 On July 1 of '93? 20 situation ever arose. 20 A Yes, sir, that's when the Act took effect. 21 Now, I'm going to focus on Julie Bowman. 2] Right. And briefly, what is the purpose ofthe Workers' 22 A Uh-huh. (Witness nodding head up and down.) 22 Comp Fraud Investigative Unit, brie?y? 23 And she became the Chief Executive Of?cer investigate and prosecute alleged violations of - or 24 1998 at the Commission. 24 to alleged Workers' Compensation fraud. 25 A Approximately. I don't recall the date, but just 25 Okay. Page 58 Page 60 1 That's her testimony. That's a good date. 1 A Investigation and prosecution of alleged Workers' Camp 2 A Sure. 2 fraud. 3 Now, prior to her going over to the Commission, she worked 3 MR. LAVEY: Okay. If I haven't said so, I'd 4 as a Special Prosecutor for the Workers' Comp Fraud 4 like to make PX-G part of the deposition. 5 Investigative Unit, did she not? 5 (Reporter's Note: PX-6 was marked and entered 6 A That's true. 6 earlier in the deposition.) 7 MR. HOLMES: For purposes of clari?cation, she 7 BY MR. LAVEY: 8 didn't do that immediately prior. 8 Now, I'm going to direct your attention to PX-3 in - in 9 MR. LAVEY: No, I didn't say that. 9 the packet there, sir. 10 MR. HOLMES: At some point in time prior she 10 A 11 had? 11 Yeah, it's the Reddick decision. 12 MR. LAVEY: Her testimony is from November '93 12 A Okay. Yes, sir. 13 to '97, on page seven. 13 Right. And it speaks for itself, but it was filed by 14 MR. HOLMES: WellJudge Harrison on July 14 of 1997. 15 trying to get into an argument. 15 A Uh-huh. (Witness nodding head up and down.) 16 MR. LAVEY: No, no, right. 16 When did you ?rst become aware of Judge Harrison's 17 MR. HOLMES: Ijust - I'm not trying to debate 17 decision in the Reddick opinion that was filed or dated July 14 18 with you. I just wanted to -- she was at ADFA prior 18 of 1997? 19 to going probably became aware of it through the grapevine 20 MR. LAVEY: Sure. She was at the Prosecuting 20 sometime within a month or two of the time the decision was 21 Attorney in Pulaski County. 21 rendered. 22 BY MR. LAVEY: 22 Okay. And what grapevine are you talking about? 23 But regarding from November '93 to 1997, she was the 23 A Just around town, talk around town, lunch, friends, you 24 Special Prosecutor for the Workers' Comp Fraud Investigative 24 know, who are respondent's and/or claimant's attorneys, things 25 Unit; is that correct? 25 like that, just talk. HARRISON VS. COFFMAN. ET AL Page 57 - Page 60 KAY BUTLER, 501-868-8134 Multi--Pagem J. MICHAEL PICKENS, 4-12-00 Page 61 Page 63 1 Okay. And regarding Judge Harrison's decision in 1 necessarily, but I had gone to some of these meetings. 2 the Reddick case, do you recall when you gave a copy of that to 2 Would that - would that have been when she was a 3 Marcus Divine? 3 prosecutor for the Pulaski County Prosecuting office? 4 A I know Marcus said I did that, and maybe we did in 4 A You know, I don't remember, to be honest with you. And 5 connection with the number of cases that we gave him over 5 1- I knew ha more as an acquaintance, I would say, not as a 6 there. I don't recall speci?cally sending this to Marcus, 6 friend. I didn't get to know her well until she was at ADFA, I 7 although I may have. He may have asked me to get it for him. 7 guess, and I was at the Insurance Department. 8 You know, ?I've heard there's this decision out there, can you 8 Again, when you say, it's the Arkansas Development 9 ?nd it,? and I would have asked one of our lawyers in Public 9 Finance Authority? 10 Employee Claims to pull it. I had not read the actually 10 A Right- 1 1 read the decision until a couple of weeks ago when I was 11 Okay. And regarding when Julie Bowman was over at ADFA as 12 reading everything else for the deposition today. 12 the general cousel, was that when she was making contact with 13 And so, that's the ?rst time you read Reddick? 13 you about hopefully getting the CEO job at the Workers' Comp 14 A I read it. I knew the gist ofthe opinion. I knew the 14 Commission? 15 gist of the opinion. 15 A i knew Julie was interested in the CEO position. 16 Okay. And from whom do you know - from whom did you know 16 And how did you know that she was interested, by - 17 the gist of the opiion, Judge Harrison's (boision in Reddick? 17 A She told me she was. 18 A Here's what I had heard. I had heard that Judge Harrison 18 And approximth when did Ms. Bowman contact you to let i9 raised the issue of a Fourth Amendment violation on sua sponte, 19 you know that she was interested in the CEO position at the 20 and that the respondent's attorney was denied the right to put 20 Workers' Comp Commission? Approximately, ballpark ?gure- 21 on any -- any evidence as to that issue, because of the the 21 A Probably during the session sometime in '97. We saw each 22 way the issue was raised, and that that's the only part l'd 22 other a lot, you know, at the Capitol, standing around talking 23 heard about the decision was the Fourth Amendment issue- 23 in the halls, things like that. 24 But you but you hadn't ever read it yourself until just 24 Okay. And regarding Ms. Bowman, did she ask you to write 25 recently? 25 a letter or call a recommendation on her behalf? Page 62 Page 64 1 A Yes, sir, that's right. 1 A She did, she did. And I don't recall whether I wrote a 2 Approximately when's the ?rst time again, ballpark 2 letter and/or called. [probably did both, to be honest with 3 ?gure, when you ?rst read 3 you. I don't have a copy of a letter that I wrote, but I may 4 A Two weeks ago on a Thursday afternoon, I think. 4 have. 5 Okay. Now, in this deposition regarding PX-3, Mr. Divine 5 And when either whether it was in writing or a call, 6 testi?ed that he would have given -- that he received that 6 was it to the governor's of?ce, recommending her? 7 from you in early 1998. Would that be accurate or you just 7 A Yes, it was - it was, and it - sometimes address - 8 don't know? 8 I'll write a number of letters like that. I mean, if you were 9 A I don't know for sure, but he be very possibly could knew you and liked you and thought you 10 have. If he asked me to get it for him, I would have gotten it 10 were a fine guy and all that rtulf, I'd write the letter. I'm 11 for him. 11 pretty liberal about doing that, and usually I address those to 12 Okay. 12 the Governor himself, although knowing he'll probably never see 13 MR. LAVEY: NOW, I'd like to make PX-3 part 13 it, because that goes to somebody else in the of?ce. 1 may 14 of the deposition. 14 address it to the Governor, I may address it to Brenda or to 15 (THEREUPON, a document previously marked for 15 Marcus, depending 0 really how strongly I feel about the 16 identi?cation as Plaintiff?s Exhibit 3 was made a 16 person. 17 part of the record and is appended at Exhibit Tab 3.) 17 Would you have also written a letter of recommendation or 18 BY MR. LAVEY: 18 a call to Chairperson Coffman or to Commissioner Wilson about 19 Now, when did you ?rst get to know Julie Bowman, before 19 Ms. Bowman, or Mrs- Bowman at that time, recommending her? 20 -- when did you, like, ?rst know her? 20 A Probably I would not have contacted them directly, 21 A I probably met Julie when I attended some Pulaski County 21 although if I talked to Eldon and he asked me, 'What do you 22 Young Republican meetings for a short period of time. My wife 22 think about Julie,? 1 would have said very positive things. I 23 was the Chairman of the Young Republicans in Pulaski County 23 don't recall that that was done, but i would have. And I may 24 when I was practicing law. I really didn't, you know, involve 24 have called; I just don't remember, to be honest with you. 25 myself politically on either -- on either side of the fence, 25 And if you know, John Kennedy was her predecessor as the HARRISON VS. COFFMAN. ET AL Page 61 - Page 64 KAY BUTLER, 501-868-8134 Multi-Pagem J. MICHAEL PICKENS, 4-12-00 Page 65 CEO of the Workers' Comp Commission; is that correct? A Yes, sir, that is correct. And regarding Mr. Kennedy, he was the CEO from August of 1996 up until May of '98 as far - as best you can remember? A I I would agree with those dates. Okay. And during that time, were there complaints about Mr. Kennedy performing in tbejob of A I had heard some general complaints from the time I took of?ce. Again, these were general-type complaints. I don't remember -- some of these may have come from Mr. Pittman. Okay- bk. be Page 67 Commission as the CEO, and that's May 26 of 1998, during that period of time, did you have conversations with her about what was going on at the Commission? A What was going on at the Commission. Right. A In in what way? What was happening over there or just how it was what was going on? A Andyoussked me about the governor's of?ce, the suggestion these- I think the governor's of?ce wanted someone at the Worhra' Comp - is 12 A Around the same period of time, you know. There were 12 the Workers' Comp CEO position that they felt comfortable with- 13 complaints like, you know, 'Governor Tucker ?red John Kennedy 13 And again, that this was not told to me speci?cally by 14 from DIS over at Information Systems- He didn't do a very good 14 Brenda or Marcus Divine, but that was kind of the feeling I got 15 job of running DIS and now he shows up over at the Workers' 15 and you certainly can believe they're entitled to that. And I 16 Comp Commission and that job is too important for somebody who 16 think they were the ones that put Mr. Kennedy over there, or at 17 got ?red by another Governor. How did he end up over there.? 17 least allowed him to to get that position or talked to - 18 And my response was,? I have no idea how he ended up over, 18 talked to somebody about it. Again, ldoa't know how all that 19 don't know-? But it was those type complaints that, 'Mr. 19 happened exactly, but - but yeah, Julie would have mentioned 20 Kennedy didn't know anything about Workers' Compensation, 20 to me that she wanted to go over there and - as far as how 21 didn't know anything about the politics, who the players were, 21 much she knew about this situation, I knew she knew it was 22 and didn't know how much about the Commission, how did he get 22 going on, but I don't know what she knew. 23 that job?" Those were the complaints in a nutshell- 23 And certainly when Ms. Bowman was trying to get, you know, 24 Would any of the complaints also involve his philosophy in 24 tbejob, the CEO at the Commission, basically you've told 25 running the Workers' Comp Commission? 25 me today you knew second-hand about the Reddick decision, about Page 66 Page 68 1 A I don't know that anybody -- I don't know that it matters 1 Judge Harrison's decision, but you had not read it? 2 what the CEO's philosophy is one way or the other. 'Ihe CEO 2 A No, sir, I had not read it. And the only part I knew 3 basically is the Executive Of?cer of the Commission and 3 about it was the Fourth Amendment issue -- 4 handles the administrative business and does pretty much what 4 Right- 5 the Commissioners tell him or her to do. 5 A that I mean, seemed to be the little cause of the stir. 6 Okay- So, as far as you know, there wasn't any complaints 6 Right- And that was the drug aspect ofthe Workers' Comp 7 by the business community about his philosophy and the way he 7 Statute? 8 ran the Commission? And if you don't know, that's ?ne. 8 A Right. I mean, the biggest complaint I had was when a 9 A No. You know, the only thing I really heard speci?cally 9 Judge raises an issue like that, you know, it it - whoever 10 about that was that there was some role and regulation that the 10 the issue is being raised against doesn't have a chance to put 11 Commission was considering during that period of time and I 1 on any evidence and that's not fair. That's basically a denial 12 think some people seemed to think that he was not listening to 12 of due process. 13 all sides of the issue. And I don't even remember what the 13 Okay. Did you met read the transcript in the Reddick 14 what the rule or reg was that the Commission was considering at 14 case? 15 that period of time. There but there was a problem, that he 15 A No. 16 was bcig close-minded, he wasn't listening, he wasn't allowing 16 Have you read it you haven't read it at all? 17 everybody to air their views, something of that nature. But 17 A No, sir. 18 there's a - I didn't put much stock in that rumor, because 18 Okay. And if you know, at the Workers' Comp case at 19 there's a public hearing process, when any rule or reg is 19 the Workers' Comp Commission, if other Ale have raised issues 20 enacted, anybody can get up and say anything and everything 20 sua sponte and nothing's happened to them? 21 they want to about it- 21 A I don't know. I mean, I don't know that that's the reason 22 And if you know and if you don't, was it true that the 22 Judge Harrison was terminated in this case, if that'i what your 23 governor's of?ce wanted him replaced? 23 indication is- 24 A I don't know that for sure. I don't know that for sure. 24 Okay. Right. Now, again going back to Mrs. Bowman, again 25 Okay. Now, again, prior to Ms- Bowman going over to the 25 before she because the CEO, do you recall that you would have HARRISON VS. COFFMAN. ET AL Page 65 - Page 68 KAY BUTLER, 501~868-8134 Multi-I?ageTM J. MCHAEL PICKENS, 4-12-00 \Om?lmt??hwwh uhuN?me?mmth?o Page 69 conversations with her about what was going on at the Commission, and one of the topics discussed was, 'Is Judge Harrison going to be terminated?? Do you recall having discussions with Julie Bowman? A At some point we had discussions like that- I don't recall when exactly that would have been- But it was before she got the job; is that correct? A No, it wasn't before she got thejob. I think it was probably after she got the job. So - A To the best of my recollection, and again, I can't totally deny that. Okay. Right. Right. A And these conversations would have been would have been talk among friends, you know. One topic that you bring up, a lot of things that well, not a lot of things. Right. A You know, the Arkansas Times article, things like that. You know, people talk. Right. But I -- regarding excuse me, I didn't mean to cut you off, sir. A You know, coffee talk, things like that. Right. But in any event about - talking about more than once that, "is Judge Harrison going to be terminated,? if Julie Bowman testi?ed this was before she became the CEO, would that Page 71 the ALJ's opinions were being too liberal as viewed by the business community? A No more so than what we've talked about already in here. I mean, Julie, I think, probably was hearing the same things that the rest of us were hearing. And regarding - did Julie Bowman - number one, did she ever say, regarding the discussion about whether Judge Harrison Was going to be terminated, whether she wanted to have her terminated before she went over there? A No, I don't think Julie went over there with it in her mind that anybody was going to be terminated one way or the other. a. - That's an opinion? A Yeah, well, that's an opinion. Knowing Julie the way think she would hate to have to terminate anybody for any reason, legitimate or illegitimate. Did you ever tell her dining those conversations that Judge Harrison should be terminated before - A No, I never would have made a rccommdation one way or the other. And regarding Judge Harrison, did you ever, like, raise the issue whether or not she was going to be terminated before - in your conversations with Julie Bowman, before Ms. Bowman went over there as the A What do you mean by "raise the issue?? 1.11 Page 70 be accurate? A I couldn't deny that. Okay. A 1 Can't say that's my speci?c recollectio. And who you had the conversation with Julie Bowman about, ?Is Judge Harriso going to be terminated,? what was the discussion about? Who brought it -- what were the - the hack and forth between you and Ms. Bowman about, ?Is Judge Harrison going to be terminated"? A I have no idea. I have no idea who brought it up, whether it was me that brought it up or whether it was Julie that brought it up. There was a lot of stir after the - the Reddick decision, a lot of concern because, again, I think that it seemed - this decision, I think, seemed to con?rm some of? what the employers' opinion of what Judge Harrison's reputation had been with some of the - some of the employers out there, that she was claimant oriented, that she was biased against respondents. This seemed to corroborate that because, again, I think that i this case the respondent was denied the right of due process and that was the discussion, you know. There was talk in the community out there, just general talk, and I would have asked Julie about that or she might have asked me about it. And also at that - during those times when you had those conversations with Ms. Bowman, would you also be talking about 25 Page 72 By talking about Judge Harrison and, you know, "ls she going to be terminated?I A I might have asked Julie that, yeah, "Have you heard" MR. HOLMES: The question was before she went over there. MR. MVEY: Right, exactly. THE WITNESS: Oh, before she went over there. BY MR. LAVEY: Yes, air. A Before she went OVer there, Ijust don't recall a lot of conversation about that, I really don't. I mean, the only - Julie was aware in general of the concerns that had been expressed about the Chairman and the Commission in general, but I don't know that - [just don't have any speci?c recollection of that, but I can't totally deny that we ever talked about it, either. And now, according to you, after she went over there as the CEO, were you asking her about whether Judge Harrison was going to be terminated? A After she went over there? Yes. A At some point I may have I may have done that. You know, if we had lunch together or something and we were talking about a number of topics, I may have asked her that. Did you tell her that - did you give her your opinion HARRISON VS. COFFMAN. ET AL Page 69 - Page 72 KAY BUTLER, 501-868-8134 MultiaPageTM J. MICHAEL PICKENS, 4-12-00 wmqo?mewwt? Page 73 that she definitely -- that Judge Harrison should be discharged? A No. You never did that? A Not that I recall. You never recommended to Julie Bowman that she terminate Judge Harrison? A No, sir, not that I recall. I mean, I wouldn't -- that's not my place to do that, either. Okay. Now, regarding Judge Harrison and the Reddick decision, did you ever talk to Marcus Divine about that? A About the Reddick decision? And about Judge Harrison's writing of that opinion- A Yes, I expect I did. And that would have been obviously after you gave him a copy of PX-3, Judge Harrison's Reddick decision? A Probably. And in those discussions with Marcus Divine, what kind of discussions did you have with him about Judge Harrison's Reddick decision? A I don't recall speci?cally what was said or who said it, but -- and again, it was real general, because I hadn't even read the opinion. I think Marcus' general take was, you know, this -- it's not very fair to raise an issue like that sua sponte and it seems like, you know, a pretty blatantly unfair 11 Page 75 anything negative about Judge Harrison and I know other respondent's attorneys, probably, who wouldn't have who wouldn't have either- But I do know that those four judges we mentioned earlier - I meanthink the general reputation of those judges would have been that they tend to be more claimant oriented. Regarding after Julie Bowman because the CEO on May 26 of '98 up until August 19, '98, which is the date on which Judge Harrison was terminated, during that period of time, number one, did Marcus Divine ever tell you that Judge Harrison should be discharged? A No, sir. Did you ever tell him during that period of time that she should be discharged because of the Reddick decision? A No, sir- Okay. And during that period of well, we've already gone through that. Now, prior to August 19 of 1998, number one, were you ever asked by Marcus Divine whether or not Judge Harrison should be discharged? A Marcus never asked for my opinion in that regard, as far as I know. Okay- During that same period of time, after Julie Bowman has gone over there, had Brenda Turner ever asked you your opinion about whether or not Judge Harrison should be discharged? LII Page 74 thing to do especially in this context. And that's what -- and I probably would have agreed with that, to be honest with you. Regarding Marcus Divine from, we'll say, the time - if you accept his testimony in early in early 1998 when you gave him a copy of A Uh-huh. (Witness nodding head up and down.) the Reddick decision of Judge Harrison, before just we'll say May 25 of I998, which is the period of time before Julie Bowman becomes the CEO - A Uh-huh. (Witness nodding head up and down.) during that period of time did Marcus Divine ever tell you that Judge Harrison should be discharged because of writing the Reddick opinion? A I don't think Marcus ever expressed an opinion like that to me. Did you ever express an opinion to him that she should have been discharged because of it, even though you hadn't read the Reddick decision? A No, sir. Now, I will say this, and I may have said this before, but just to reiterate, I mean, if Marcus or Julie or anybody else would have asked me, you know, 'What is the general reputation of any of these judges that we talked about,? would have -- I would have relayed what 1 knew about that and that may or may not be accurate, because again, it was a reputation-type thing. I would have never personally said Page 76 No. The only thing Brenda Turner ever asked me was, you know, to determine whether or nothelp her determine whether or not the Commission was following the law. That's basically the - the charge that I received from Brenda. Was Ms. Turner also saying that, regarding the ALJI, it's the business community is complaining that the ALJs are not following the law regarding Act 7967 A Brenda was hearing the same complaints that all the rest of us were. Now, - A Based on my conversations with her, again. (THEREUPON, a brief discussion was held off the record between Ms- Pulliam and Mr. Lavey.) BY MR. LAVEY: When you were talking to Brenda Turner about her hearing, you know, the complaints, what~have?you, regarding the ALJs and whether about Eileen Harrison or Judge Harrison, did she ever give you the names of the people who were complaining from the business community? A I don't think she did. [don't think she did. She may have mentioned, 'We're hearing this from the State Chamber.? She may have mentioned that organization to me. All right. Now, A But again, by that time I had already been passing information like that on to Marcus Divine, because I - was HARRISON VS. COFFMAN. ET AL Page 73 - Page 76 KAY BUTLER, 501-868-8134 Multi-PageTM J. MICHAEL PICKENS, 4-12-00 Page 77 hearing it also. And what kind of information, again, sir, were you passing on to Mr. Divine? A The complaints that we were talking about earlier about Chairman Coffman. Okay. How about, would you were you receiving any complaints regarding Judge Harrison or were they just pertaining to Mr. Coffman? A Just - just pertaining to Mr. Coffman- Okay. Now, did you ever complain to Brenda Turner about \ccoqoxmssunh- Page 79 MR. HOLMES: Let's take a bleak. MR. LAVEY: Let's take a break- MR. HOLMES: Let's take about ?ve minutes- MR. LAVEY: Yeah, that's ?ne. Sure. MR. HOMES: Are you going to be able to wrap up by 12:00? MR. LAVEY: Yeah, I'm pretty sure I am, Leon. (OFF THE RECORD) BY MR. LAVEY: After Ms. Bowman became the CEO on May 26, '98, of the ll Judge Harrison's Reddick decision? 11 Workers' Comp Commission, up until August the 19th of '98, 12 A I don't know that I would use the word, 'complain.? I 12 during that period of time, did Ma. Bowman discuss with you her 13 probably mentioned the Reddick decision to Brenda. Brenda may 13 recommendation that she was going to discharge - die was going 14 have asked me about the Reddick decision. 14 to recommend that Judge Harrison be discharged? 15 Okay. 15 A That she was going to recommend that Judge Harrison be 16 A I don't know how that - I mean, everybody was aware l6 discharged? 17 Right. 17 Yeah- 18 A of the Reddick decision. And that had been raised by 18 A I don't remember I don't recall Julie ever telling me 19 some complaining parties. 19 that she had recommended that Judge Harrison be discharged- 20 As but you recall, what did you discuss with Brenda 20 That she was going to recommend it, that she was - she 21 Turner about the Judge Harrison's Reddick decision? 21 told you during that period of time that she was going to 22 A I probably told her pretty much what I told you- I 22 recommend that Judge Harrison be discharged. Do you recall any 23 haven't read the decision, but it's my understanding that, you 23 such conversations with 24 know, she raised a Fourth Amendment issue sua sponte and I 24 A I don't recall that conversation. 25 would have explained what that meant to her. She probably 25 Okay. Would you deny it? Page 78 Page 80 I would have asked me some questions just, you know, generally A I can't deny it, either: 2 generally as a lawyer, and I would have told her what I knew- 2 Okay- And 3 But agai, it would have all been quali?ed by, hadn't 3 A But again it was my i don't remember Julie ever saying, 4 really read that decision.? 4 ?Mike, I think Eileen Harrison needs to be terminated." 5 And again, did Marcus Divine ever ask you your opinion 5 Okay. And during that period of time, do you recall that 6 pertaining to Judge Harrison's Rcddick's decision? 6 she, in fact, told you what her recommendation to discharge was 7 A Marcus is a lawyer, so we may have talked about it, but I 7 going to be based on? 8 don't know that he am asked my opinion. I mean, I - my 8 MR. HOLMES: Object to the form of the question. 9 opinion is it's unfair for a Judge to raise an issue like that 9 BY MR. LAVEY: 10 sua sponte because it denies, whether it's a claimant or a 10 Do you recall? 1 respondent, the right to put on evidence to the contrary- 11 A No, sir. Same answer. 12 lfan issue was raised and the respondent's attorney 12 Do you deny it? 13 doesn't object to it, would that constitute waiver, do you 13 A I can't I can't deny it, but again I don't I don't 14 think? 14 recall Julie ever saying that Eileen needed to be discharged 15 A My understanding - well, generally speaking, probably 15 for any reason. I mean, I think that's the Commisaioncrs' 16 yes, but I don't remember that being the case. And I think the 16 decision to decide who's going to be discharged. 1? Court of Appeals in their I have read the Court of Appeals' 17 Right. But she was going to mcommend and the basis for 18 decision also. And I think the Court of Appeals made it clear 18 her recommendation to the Commission; that's what I'm saying to 19 that the issue had never been raised or that or that no 19 you. 20 waiver had ever been made on it in this case. 20 A I don't I don't recall that. 21 That as -- 21 Okay. But you don't deny it, either? 22 A And the opinion speaks for itself. 22 A I can't deny that there was some talk, but I- Ijust 23 Right, exactly. No problem. Now, I'm going to - 23 don't ever recall her saying that Judge Harrison needs to be 24 MR- HOLMES: Are you going to a new topic? 24 discharged for any particular reason. 25 MR- LAVEY: I haven't decided yet. l'mjust - 25 But she was going to recommend that she be discharged? HARRISON VS. COFFMAN. ET AL Page 77 - Page 80 KAY BUTLER, 501-868-8134 Multi-PagerM J. MICHAEL PICKENS, 4-12-00 Page 8] Page 83 A I don't recall that or anything that speci?c. What I was went over there- 2 hearing was talk. I thought Commissioner Wilson's deposition 2 BY MR. LAVEY: 3 did a real good job of -- I mean, this -- there Was a lot of 3 Right. Between May 15, right, '98 and May 26, '98, yes, 4 talk going around, but as far as anything very speci?c, I 4 sir. 5 don't think any of us heard a lot about that. 5 A I can?t deny that we talked about it. [can't deny that 6 Okay- And again, during that period of time, as best you 6 we would have, because if we saw each other 7 can recall, Ms. Bowman did not tell you the basis of her 7 Okay. 8 recommendation that she was going to make to discharge Judge 8 A I mean, we would have talked probably about work more 9 Harrison? 9 than we would have anything else, about a lot of things. But l0 A Not that I remember, no, sir. 10 as I said, this was a blip on my radar screen. It was not that 11 You deny that? 11 big ofan issue for me. 12 A Again, not that I remember. 12 Can you recall what the discussion was between you and Ma. 13 Okay. I'm going to direct your attention, please, sir, to l3 Bowman? l4 PX-Z. 14 MR. HOLMES: Object to the form. He didn't 15 A Uh-huh. (Witness nodding head up and down.) 15 testify that there was a discussion. He said if they 16 And that?s the May 15th Insider Page pertaining to from 16 saweach other - 17 the Arkansas Times, and that's a good date, May 15 of 1998, 17 MR. LAVEY: He said that they -- 18 that's when it came out. 18 MR. HOLMES: it's something that they night 19 A Okay. 19 have talked about. He did not say that - 20 And I'm going to direct your attention to the ?rst column 20 MR. LAVEY: I thought 21 starting with -- just above "Workers Beware," the very last 2] MR. HOLMES: Let me ?nish my objection. 22 paragraphs. 22 MR. LAVEY: Okay, I'm sorry. 23 A "Big employers in the state 23 MR. HOLMES: He did not say that there was a 24 No, "Something else to look out for 24 conversation about that. 25 A I see, yes, sir. 25 BY MR. LAVEY: Page 82 Page 84 1 At that yes. Read that paragraph over, if you would, 1 You may answer now. 2 just brie?y. 2 A And it -- I'm sorry, what was the question again? 3 A 'Something else to look out for: Word is that employers 3 Basically, do you recall what the discussion was between 4 are leaning on Coffman to replace some of the Commission's 4 you and Ms. Bowman pertaining to the paragraph in PX-Z that 5 Administrative Law Judges,? - 5 we're focused on, sir? 6 Right. 6 A I can't recall. I think both ofus enjoy reading the 7 A 'the ones that management suspects are sympathetic to 7 reading the Times when it comes out every week and we 8 workers. won't comment-? 8 probably -- if we talked -- if we talked, we would have we 9 Right. Regarding that article and that paragraph, again, 9 would have talked about this. 10 do you recall having conversations with Julie Bowman about 10 Was there any discussion, as an example, that Judge ll that? 11 Harrison may ?le a lawsuit if she's discharged, when you were 12 A I didn't talk to Julie that much, to be honest with you. 12 discussing l3 1 mean, we would talk occasionally. We really haven't talked 13 MR. HOLMES: Object to the form. 14 much in the last year or so, and that we we didn't talk 14 THE WITNESS: I do recall discussing with 15 much during this period of time. If I saw lulie somewhere, I 15 somebody, and I don't recall who it was, that they 16 may have mentioned, you know, 'Did you see the Arkansas Times?? 16 expected Judge Harrison to ?le a lawsuit if and when 17 She may have mentioned that to me. i mean, this was talk. I 17 she was ever -- she was ever terminated. 18 don't recall picking up the telephone and calling Julie and 18 BY MR. LAVEY: l9 saying, 'lulie, who's going to be ?red over there,? or 19 You don't -- 20 anything like that- I don't think she did anything like that 20 A I don't remember who said that. I really don't. I have 21 tome. 21 noidea. 22 But in any evont, do you recall having any speci?c 22 Do you recall approximately when this disEussion took 23 discussion with Ms. Bowman about that before she went over? 23 place? Was it befOre she was discharged, and after the article 24 MR. HOLMES: This would have been about, Jack, 24 in PX-Z, sir? 25 if the date is right, about eleven days before Julie 25 A It could have been before or after the article in PX-2- I HARRISON VS. COFFMAN. ET AL Page 81 - Page 84 KAY BUTLER, 501-868-8134 Multi-PageTM J. MICHAEL PICKENS, 4-12-00 Page 85 Page 87 I mean, my understanding was that Eileen herself had gone around 1 practicing law. It was just if I didn't like their 2 telling people that. 2 decision, I appealed it and I got every one of them 3 Telling - 3 reversed, or the law did. I mean, I just was doing 4 A Telling - telling people that, that you know, I think 4 my job as a lawyer. We got them reversed if we 5 people -- think I'm going to be ?red and boy, if they do, 5 didn't agree with them, but we didn't take it 6 I'm ?tting to sue them,? you know, that kind of stuff. 6 personally. I mean, that's not what it's all about. 7 That's - - those were rumors that I was hearing along with 7 BY MR. LAVEY: 8 some of this other stuff, from her side of the fence too, and I 8 That's how I operate. 9 never talked to Eileen about it. 9 A Sure. 10 Do you recall about hearing that rumor sometime after the 10 Judge Harrison was terminated on August 19 of 1998 and 11 latter part of April or 1998, about then? 11 after the termination, did Ms. Bowman call you and tell you 12 A After the latter pan of April of '98? 12 that Judge Harrison had been terminated? 13 Yeah, in fact, after April 25 of 1998. 13 A She may have called me. In fact - and Leon and I were 14 A I do not. 14 talking about this Friday. She may have called me very soon 15 Okay. 15 before she actually delivered the word to Eileen. She may have 16 A My recollection is not very speci?c. 16 called me like the same day. I don't know if it Was after she 17 Okayshe talked to me, and again this is very 18 MR. LAVEY: I'd like to make rx?z part of the 18 unclear, but I'm trying to be as honest as I can. 19 deposition, please. 19 And I'm doing my job exactly for the record. 20 (THEREUPON, a one~page document previously 20 A I understand. 21 marked for identi?cation as Plaintiff?s Exhibit 2 21 Exactly. 22 was made a part of the record and is appended at 22 A The Commission had already made its decision to terminate, 23 Exhibit Tab 2.) 23 and I don't remember if Julie was calling me on another issue 24 BY MR. LAVEY: 24 that we were working on that or something like that, but this 25 Did you before again, Ms. Bowman before Ms- Bowman 25 was about the time that that some of this talk was going Page 86 Page 88 1 went over to the Commission '98 state 1 around. I may have asked her, you know, 'What'a up?? She may 2 in substance there was several ALJs over at the Commission who 2 have mentioned to me- I do recall either before or after her 3 need to go? 3 mentioning to me, you know, that she kind of dreaded to have to 4 A Did Julie say that to me? 4 ?re Eileen, and because Julie just doesn't I mean, she 5 Did you say that to Julie? 5 would - it's unpleasant to ?re anybody. I'couple of people and it's an unpleasant deal. Knowing Julie 7 Didanybodyevcr saytbat toyou? 7 And 8 A Not that I recall, but if -- again, if anybody would have 8 she either expressed that to me either before or after the 9 asked me my opinion - 9 ?ring, but I know it was after the Commission had made their 10 Right. 10 decision, and it was imminent. I mean, if she - if she told ii A about speci?c Administrative Law Judges, I probably 11 me before, the ?ring was like imminent. l2 wouldn't have given it to them. I would have expressed what I 12 Do you - okay. That's ?ne, and I accept that. However, l3 thought to be what I knew to be their reputations. That's 13 regarding the week after - like after August 19 - I have a 14 -- that's what I or, again, their professional reputation. I4 '98 calendar here, so we're on track, and so you'll know August 15 Allright- 15 19 isa-isachnesday,but withintheweekafter~ 16 A Incidental stuff. I mean, lawyer talk, Jack. You know, 16 A Now, when was the termination again? 17 we all know - we all talk about judges and things like that. 17 August 19, air. 18 Behind closed doors. 18 A Okay. 19 A Right- 19 MR- HOLMES: Early in the afternoon. 20 MR. HOLMES: Or at the coffee shop- 20 MR- LAVEY: Yes. 21 MR. LAVEY: Or at the of?ce. 21 THE WITNESS: Okay. 22 THE WITNESS: But again, I was 1 want to make 22 BY MR. LAVEY: 23 this real clear too. I like Eileen. I like Judge 23 Regarding however, within a week after that, did Julie 24 Blood. I never had any problem with Judge Mamnti. 24 Bowman call you and tell you that Judge Harrison has! been 25 I didn't take any of this personal when I was 25 discharged? HARRISON VS. COFFMAN. ET AL Page 85 - Page 88 KAY BUTLER, 501-868-8134 Multi-PageTM J. NIICHAEL PICKENS, 4-12-00 Page 89 A She may have. I don't know that she called for that speci?c purpose, though. I mean, I don't know if it wasjust a call to call me and tell me that. And do you recall what she told you about the discharge of Judge Harrison? A I recall she said it was unpleasant, that she and Dave Greenbaum had gone to see Eileen, and that she basically told her she was terminated, and that there wasn't a lot of diacussio. Did she tell you that Judge Harrison asked why she was being discharged, and she said it was a management decision? A I read that in the depositions, and that's What she told me too. She told me it was a management decision that the Commissioners had voted two to one to discharge Judge Harrison. And that's all she ever told me is, it was a management decision. (THEREUPON, a brief conversation was held off the record between Ms. Pulliam and Mr. Lavey.) BY MR. LAVEY: Before August 19 of 1993, the date on which Judge Harrison Page 91 A And Jack, just to -- again, I want to clarify that. Sure. A My understanding was that Commissioner - and my understanding at that time is that Commissioner Wilson made a motion to terminate Judge Wilson -- MR- HOLMES: Judge Harrison. THE WITNESS: I'm sorry. Judge Harrison. And that Eldon agreed with that and that Commissioner Humphrey didn't and that it was a two?to-onc vote and that the Commissio -- the Commission terminated Judge Harrison. BY MR. LAVEY: I'm sure -- okay. Now, regarding Marcus Divine, do you recall in addition to giving him a copy of PX-3, that you gave him a ?le pertaining to Judge Harrison? A No, sir, I never gave him a file pertaining to Judge Harrison. What I gave him was this special analysis of cases here that I gave you before the deposition this morning, that contains a number of Commission decisions. But I don't even think an Administrative Law Judge is mentioned in that. Okay. So basically, according to you, you never brought 2] was discharged, did Ms. Bowman ever tell you that Brenda Turner 2] 22 had told her it was time for Judge Harrison to be let go? 22 to Marcus Divine's attention the opinions of Judge Harrison, 23 A No, she never told me that, and knowing the way the 23 other than giving him a copy of the Reddick decision? 24 governor's of?ce operates, I wouldn't - I would I would be 24 A No. You know, there was no -- there was never we never 25 skeptical if somebody said that. The governor's office is - 25 -- we never -- the Insurance Department never did a special Page 90 Page 92 1 you know, l'vo heard stories about how Governor Clinton and 1 analysis of Judge Harrison's opinions. 2 Governor Tucker picked up the telephone and called my 2 But regarding the Reddick decision, do I understand you 3 predecessors and said, llYou're going to be X, Y, or 3 that you gave him a copy of the Reddick decision upon his 4 Governor IIuckabce himself nor Brenda Turner has ever picked up 4 request? 5 the telephone to tell me to do anything. The only thing 5 A I thinkl probath did. 6 they've ever told me is, I"You do what you think is right and in 6 Okay. 7 the best interest, and you do your job," and they've never - 7 A I think I did. 8 they've never tried to run the agency or tell me who to fire or 8 And you were - and how would you have got the Reddick 9 who not to fire. If I asked their opinion about somebody or 9 decision at that time? 10 what they heard about somebody, and I say, 'they,? I'm not 10 A I would have picked up the telephone or sent an e-mail I talking about Governor Huckaboe now, I'm going to be talking 11 down to my Public Employee Claims Division, Bill Luce or Alan 12 about Brenda or my liaison. 12 McClain, and I would have said, 'Would you please have a lawyer 13 Sure. l3 pull this case." 14 A They would tell me that opinion. They might make a 14 Okay. But other than you would have not have given 15 suggestion, but as far as giving me a directive to terminate 15 him, 'him" being Marcus Divine, copies of any opinions of other 16 somebody, they've ever done that and I would be surprised if 16 ALJs at the at the Workers' Comp Commission? 17 they've given a directive to terminate anybody. I would be 17 A (Witness shaking head from side to side.) l8 surprised if that happened in this case. 18 You've got to say 'yes' or You're shaking your l9 But my question is: Did Mrs. Bowman tell you that Brenda 19 head? 20 Turner had called her and told her it was time to let Judge 20 A Right- I was just thinking. No, sir. I mean, other than 2] Harrison go? 2i this special analysis of cases, that's all I ever gave Marcus 22 A I don't recall her telling me that. 22 23 Okay. 23 Right- 24 A I don't. 24 A - and possibly the Reddick case. In fact, the Reddick 25 Okay. 25 case may even be mentioned in this special analysis, I'm not HARRISON VS. COFFMAN. ET AL Page 89 - Page 92 KAY BUTLER, 501-868-8134 Multi-PageTM J. MICHAEL PICKENS, 4-12-00 Page 93 Page 95 I sure. 1 administrative assistants and she is one of them. 2 And according to you, other than giving him a capy of the 2 And she works for you? 3 Reddick decision, did you ever give him a copy of any other of 3 A Yes, sir. 4 Judge Harrison's opinions, "him" being Marcus Divine, sir? 4 And you recognize her signature on here? 5 A No. No, sir. 5 A I do. 6 Okay. Excuse me, please. I'm just going to direct your 6 All right. And did you -- obviously, do you do you 7 attention to PX-4, sir. 7 remember authorizing her to write this letter to Linda Bailey? 8 A PX-4. 8 A I don't. To be honest with you, lack, the ?rst time I've 9 And that -- take your time. 9 ever seen this letter is today. 10 A Got it. 10 Okay. And who again, for purpose of the record, do you 11 That is the Commission's decision in the Reddick case. 11 know who Linda Bailey is at the Workers' Comp Commission? 12 A Yes, sir. 12 A I really don't know Linda. I may have met her, but I 13 And it's dated May 15 of1998. Before today, when was the 13 don't recall who that is. 14. ?rst time you saw a cepy of 14 Okay. Would you just scan -- look at that and just - so 15 A I don't remember the first time. I don't -- 15 that you know, and I can just ask you I'm not going to spend 16 Approximately. I'm not 16 that much time on it, but I just want to ask you some questions 17 A Probably not long -- well, it was rendered on May 15th, of 17 about it. 18 '98. The ?rst time I can de?niwa say that I remember 18 A Sure. I've looked at it before the deposition, I've seen 19 seeing this Was two weeks ago, because I -- I already had the 19 it. 20 one Reddick decision, and I think I asked our folks to pull the 20 Okay. Now, 21 Commission Opinion and also to get me a cOpy I've read it. 22 Court of Appeals had rendered a decision yet. And I got their 22 Okay. And it's self-explanatory. 23 unpublished decision up. Now, I have not read this cover to 23 A Uh-huh. (Witness nodding head up and down.) 24 cover. 24 Regarding PX-S, did -- on what date did the meeting come 25 That's right? 25 off on that Seleta was requesting the meeting to take place on? Page 94 Page 96 1 A PX-4. I've not read cover to cover. 1 A I don't recall that we ever but meeting in this case. 2 Right. 2 Tatum Tatum had expressed some concern to me at 3 A I read Judge Harrison's decision. 3 the Workers' Compensation Conference in August of '97 similar 4 Right. 4 to the ones that the -- the Chamber had expressed. And then, 5 A And I thumbed through and scanned PX-4 a couple of weeks 5 after Judge Hodge was ?red, he called - he called me on the 6 ago. 6 telephone and expressed some concern about that, wanting to 7 Okay. That would -- that would have been the ?rst time, 7 know what was up, basically. I mean, his - his opinion was at 8 you just like scanned it? 8 that time, you know, "They ?red what we considered to he a 9 A Yes, sir. 9 good law judge. Why? We don't understand it. They say it's 10 The Commission's decision? 10 for insubordinntion, but we don't know. What what's going ll A Yes, sir. 11 on here.? Then I didn't hear much from after that, and I 12 Okay. 12 do recall when I saw this letter today, this morning, I thought 13 MR. LAVEY: I'd like to make part of the 13 about it little bit. Mr. Tatum at some point asked me to try 14 deposition. 14 to set up a meeting with Brenda Turner and Mike Wilson, just to l5 (THEREUPON, a twenty-two?page document IS try to set up the meeting so he could express some of the 16 previously marked for identification as Plaintiff 16 concerns that the Chamber nlrenrly expressed to everybody, 17 Exhibit 4 was made a part of the record and is 17 and it would have been about this period of time. Now, the 18 appended at Exhibit Tab 4.) l8 fact that Seleta wrote a letter tells me that she was having 19 BY MR. LAV BY: 19 trouble setting up this meeting, because normally she would 20 I'd like to direct your attention to 20 just call. She would make a telephone call and it would 21 A Okay. Yes. 2] happen. 22 And that's a letter from Seleta Yearian to Linda Bailey. 22 Right. 23 Again, who is Seleta Yearian? 23 A I don't recall us ever having a meeting. I don't recall 24 A She's called a management project analysis and she's 24 the meeting ever happening and it's probably because, you know, 25 basically my administrative assistant. I have two 25 'Becn there, done that, we've heard all these - from the HARRISON VS. COFFMAN. ET AL Page 93 - Page 96 KAY BUTLER, 501-868-8134 Multi?I?agem J. MICHAEL PICKENS, 4-12-00 Page 97 Page 99 governor's of?ce. We've already heard all these complaints 1 (THEREUPON, a brief conversation was held off 2 before, they're consistent with what we've heard, so no need to 2 the record between Ms. Pulliam and Mr. Lovey.) 3 meet" 3 BY MR. LAVEY: 4 Okay. And basically, Tatum is the former Chairperson 4 I'm going to direct your attention - basically again 5 of the Workers' Comp Commission? 5 going back to that meeting that you raid was in maybe 6 A I think he was Chairman at one time, yes. 6 approximately March or April of 1998 when you met with Mr. 7 Right. 7 Coffman, Mr. Walmsley, and Mr. Divine 8 A He may not have been. I don't - I don't 8 A Uh-huh. (Witness nodding head up and 9 He was a Commissioner, certainly. 9 and basically 10 A Right. I know he was an employer the employer rep at 10 A Did you say Mr. Pittman? And Mr. Pittman was there too. one time. 11 No, no, Mr. Divine. This is the meeting that you had with 12 Right, right. And regarding Mr. Tatum at the time this l2 Mr. Coffman -- - . 13 was written, for whom was be working? 13 A Uh-huh. (Witness nodding head up and 14 A i think he was working for Tynet, which is the managed 14 -- after -- 15 cars organization for Tyson. And they're self-insured and I 15 A Oh, no, I'm sorry, Mr. Carter would have been. Some l6 think he was i think Tyson was also involved in the ASIA 16 Mr- Carter, I think, was at that meeting, wasn't he? 17 organiutio. 17 No, but your prior testimony was Mr. Walmsley. It was 18 And regarding did you ever have any conversations 18 you, Mr. Walmsley, Mr. Divine, and Chairperson Coffman. 19 with Commissioner Wilson about this projected meeting? l9 A Okay. I think Mr. Carter was there too. 20 A I really do not -- in fact, was -- was a little bit 20 Okay. 21 surprised to see his name in here, because my recollection 2] A i don't know if we -- I don't know if you asked me that or 22 would have been - until I saw this letter, my recollection 22 -- I don't remember how the question was phrased, but - 23 would have been that just wanted to meet with Brenda 23 No problem. If - if Mr- Walmsley -- if Mr. Carter was 24 Turner. And I don't know how Commissioner Wilson got involved. 24 there, ?ne. 25 And 25 A I think he may have been. Page 98 Page 100 A But obviously he probably - I mean, all we were doing was 1 Okay. No problem. And both representing the Worhrs' 2 scheduling the meeting, so must have. Based on this, 2 Comp Committee of the Arkansas Chamber of Commerce Department? 3 must have said, you know, 3 A Yes. Yes. 4 Right. 4 Okay. And basically, as I understand it - 5 A 'Can you get a meeting with the Governor and 5 (THEREUPON, a brief conversation was held off 6 Commissioner Wilson.? 6 the record between Ms. Pulliam and Mr- Lavey.) 7 Did you have any conversations with Brenda Turner 7 BY MR. LAVEY: 8 pertaining to the requested meeting in 8 Basically, as I underst it from your testimony and the 9 A I probably called her and said 1 probably tried to 1 9 record will speak for itself, you you testi?ed in substance l0 probably called her before this letter went out and said, 10 that you were involved in that meeting to determine whether the 1 'Brenda, we'd like to - or somebody would like to meet with Chamber's concerns were based in fact or were anecdotal? 12 you.? That's ?'that's pretty routine. 12 A Yes, that's correct. 13 Okay. 13 And how bad you been involved? How how were you l4 MR. LAVEY: For purposes of the record 14 involved or how were you to be involved? l5 asymmetry, i would like to make PX-S part of the 15 A Right- I think I mentioned this brie?y earlier. At some l6 deposition. 16 point Brenda Turner contacted me and said, 'Mike, I know you've l7 (THEREUPON, a one-page document previously l7 you've heard things about the Commission. We're hearing 18 marked for identification as Plaintiff's Exhibit 5 l8 things about the Commission from a number of fronts. Would you 19 was made a part of the record and is appended at 19 please help us determine whether or not these concerns are 20 Exhibit Tab 5.) 20 legitimate or illegitimate.? In other words, is the Commission 21 THE WITNESS: Can you make me a copy of that 2l following the law. I think this was -- these were Brenda's - 22 too, because I don't I don't have that, and 22 pretty close to her - to her words, "Mike, l'm not aulawyer; I 23 don't know that Seleta would still have it. 23 don't know anything about Workers' Compensation, you know. 24 MR. HOLMES: Yeah, we'll make you a copy. 24 Eldon is a - is a friend, he's an appointee of the Governor. 25 MR. LAVEY: Sure, no problem. 25 Would you please help us determine, you know, objectively HARRISON VS. COFFMAN. ET AL Page 97 - Page 100 KAY BUTLER, 501-868-8134 Multi-Pagem J. MICHAEL PICKENS, 4-12-00 Page 101 Page 103 what's going on here? Is there anything to these complaints?" 1 So -- 2 And what action, if any, did you take to determine if, in 2 A Marcus may have. 3 fast, if it was fact or anecdotal? 3 All right. And regarding have you read the 4 A I think Marcus Divine not long after contemporaneously 4 deposition of Mr. Divine? 5 with Brenda's call, said, "Mike, why don't you have some you 5 A Yes. 6 know, you have a Public Employee Claims Division there at the 6 He -- he mentions a - you gave him a thin file and what- Depa?ment.? And I may have suggested this to Marcus, even, 7 have-you. 8 you know. 'But one thing analysis of 8 A Uh-huh. (Witness nodding head up and 9 the cases. And we have lawyers in our Public Employee Claims 9 Regarding PX-7, is that What would have been in that thin 10 Division.? 1 called down to Public Employee Claims, probably 10 ?le? 11 called Bill Luce or Alan McClain, and they got one or more of 11 A Yes. Yes. 12 our Public Employee Claims Division lawyers involved in 12 And that's what you recall giving him? 13 researching the cases. And they did a special analysis of 13 A That's what I recall giving him. 14 cases, which is that document I gave to you this morning. 14 Nothing else you gave him? 15 Okay. 15 A That's what - yes, sir. Nothing else that I remember. 16 A Andi-andlgavc that to Marcus Divine,asbestl 16 Okay. 17 recall. 17 A Imean?Imean,ifheasked foractual copies ofsome of 18 Okay. And so, basically, let's - 18 these eases, we might have pulled the actual copy. 19 A And again, I always felt felt like that, you know, the 19 And regarding your dad, you mentioned your dad knew Mr. 20 concern was, you know, if we think Eldon's getting some unfair 20 up in Batesvillc? 21 criticism, you know, let's -- let's see what the facts are and 21 A Uh-huh. (Witness nodding head up and down.) 22 get the facts out. 22 What does your dad do, just for purposes of the record? 23 I'm going to direct your attention to the special 23 A He is -- at that time he was the Director of Governmental 24 analysis cases which you gave - produced this morning. Who 24 and Civic Relations for or 25 prepared that again, please, for purposes of the record? 25 Okay. Page 102 Page 104 1 A One or more of our lawyers in the Public Employee Claim . I A And I think I think he's known Mr. Walmsley for a 2 Division. I mean, it was basically just a research project. 2 number of years. We've lived all over the state. He moved 3 They wouldn't have even known why they were doing it, 3 aroud with a lot, and I think he's known Mr. 4 necessarily. 4 from way back. 5 And was that done after the meeting you just testi?ed to 5 And like a friendly, professional relationship with him? 6 with Mr. Walmsley, and you say Mr. Carter, Mr. Divine, you, and 6 A Friendly professional, yes- 7 Chairperson Coff man? 7 Okay. 8 A It may have even been before. 8 A I mean, they don't they're not -- they don't socialite 9 Okay. 9 together or anything like that. 10 A It was either before or after. 10 MR. LAVEY: I'd like to make part of the 11 And to whom did you submit this special analysis of cases? 11 deposition, please. 12 A 1 would have given that to Marcus Divine at the governor's 12 (THEREUPON, a ?fty?two?page document previously 13 of?ce. 13 marked for identi?cation as. Plaintiff's Exhibit 1 14 And would that have been the time at or about you gave him 14 was made a part of the record and is appended at 15 the decision in the Reddick case of Judge Harrison, which is 15 Exhibit Tab 7.) 16 sir? 16 (THEREUPON, a brief discussion was held off the 17 A Excuse me. It could have been before or afterward. l7 record between Ms. Pulliam and Mr. Lavcy.) 18 Okay. And other than Marcus Divine, did you give PX-7 to 18 BY MR. LAVEY: i9 anyone else, such as Chairperson Coffman? 19 What conclusions regarding going back to that 20 A I don't know that I ever gave Eldon a copy or not. My 20 meeting again, at the last part of March or April of '98 you 21 understanding was Marcus probably was going to do that. And my 21 testi?ed to that Mr. Walmsley, Mr. Carter, you and Mr. Divine 22 understanding also was that Eldon was doing some research of 22 and Chairperson Coffman are there, what conclusioiis did you 23 his own- So I don't -- I don't - I don't recall ever 23 come to whether it was factual or anecdotal? 24 speci?wa giving that to Chairman Coffman. I lmow I didn't 24 A Okay. We - may I see that special analysis of cases? 25 give it to Commissioner Wilson- 25 Sure. HARRISON VS. COFFMAN. ET AL Page 101 - Page 104 KAY BUTLER, 501-868-8134 Muiti-PngeTM J. MICHAEL PICKENS, 4-12-Page 105 A On page on page two ofthat, there's a summary of December 1997 opinions and a summary of the January ?93 opinions, February '98, March '98, and so forth, as you can see. What they did, our lawyers, they would give us a summary. A total of seventy cases, clear-cut cases, they decided - and again, this is in our lawyers' judgment - eleven disputed were eight for the claimant and six for the respondent forty-six. Those numbers are pretty consistent. The respondents tended to prevail in more cases than the claimant did, obviously, as you can - as you can see there. Chairman Coffman, as I recall at the meeting, also had a similar deal that basically showed that respondents prevailed in more cases than claimants did. And that led me to believe that some of the complaints were probably more anecdotal than they were accurate. But I did think the -- i did think the Chamber had some - had some decent points. Number one, they were they were concerned that the fact that so many decisions were being af?rmed and adopted, that it was hard to determine in some cases exactly what the decision was based on; okay? There was a lack of reasoning there. Also, if - obviously if the Commission is af?rming and adopting bad decisions, that's and their concern also - it wasn't so much the numbers, it was that, you know, you may have six cases that were for the claimant, but there were - there Were some cases in there that were significant; okay? There were some precedent-setting type Hat-.? mun-no 14 Page 107 with Eldon. Yeah. (THEREUPON, a brief discussion was held off the record between Ms. Pulliam and Mr. Lovey.) BY MR. LAVEY: Regarding that meeting, did you discuss any Administrative Law Judges who wrote the Opinions that the Commissioner af?rmed for which you had concern? A I don't know that they focused on Judges more. It was more the reasoning. I mean, it was more an objective analysis of the -- of what the law was. You know, are they following the law or are they not? Regarding the Aids? A Right. And then, again, the so-called two-one decisions a?'uming those opinions of the ALJs Right. that you're testifying to today? I mean, it's -- it's a critical analysis, Jack Right. -- of how any lawyer would do of a case. Gotcha, right. And it's pretty typical. Sometimes we ended up with three or four opinions of what we thought the case ought to be. MR. LAVEY: May we do this? May we leave the I?hh?abh?l MADJNl??Ohom?da?k? Page 106 cases that they were concerned with and again, while I my general conclusion was, they were anecdotal, but I thought some of their concerns had merit as far as actually -- I guess I'll use the word "eroding" certain parts of the of the act. Which decisions do you think had merit? A I can't recall speci?cally. At that meeting with Chairman Coffman, we talked about some decisions. Some of those dealt with rebuttal -- rebuttable presumption in drug cases. Okay. A In fact, that was the main thing that I remember, the rcbuttable presumption in -- in drug cases. But again, that's -- my general opinion at the end of the day was that their complaints are more anecdotal than they are anything else. Yeah, there may be a few decisions that are changing the law. The Court of Appeals has changed the law. I had a bigger concern with what -- and still do -- had a bigger concern with what the Court of Appeals has done to the law than I do what the Commission has done to the law. Let's see -- A And Jack, I guess what I'm saying is, I saw their point on some cases, and I can't even remember what those were, but I mean, we had an -- Yeah. A -- open discussion about those in that meeting with -- Vooeqoxmowrou? 14 Page 108 deposition open if need be, so we can read this and just limit the deposition later on, if we have to, regarding anything pertaining to - because MR. HOLMES: Not as far as I'm concerned. If you want to ask him questions, ask him now. MS. PULLIAM: Okay. Then, let?s take lunch and read it and come back this afternoon and ?nish it. MR. HOLMES: Do whatever you want to do, but whatever we do, let's do it today. If you want to Carry the deposition over, that's fine. I told Ms. Sammye we were about over. I need to call her and I will call back and say we're going to go over into the afternoon. MS. PULLIAM: All right. MR. Right. MR. PULLIAM: We can just look - before we do that -- MR- LAVEY: Right. MR. HOLMES: -- before we do that, let's find out if Mr. Pickens is going to be able to discuss speci?c cases understanding that his testimony is that he did not prepare that document. And so before you start getting into, you know, going over, and then coming back in the afternoon we Can - in order to talk about particular cases, my I have to, you HARRISON VS. COFFMAN. ET AL Page 105 - Page 108 KAY BUTLER, 501-868-8134 Mum-Pach J. NHCHAEL PICKENS, 4'12-00 Page 109 Page 111 1 know, ask him now if there's any -- before we do 1 BY MR. LAVEY: 2 that. 2 Alan McClain? 3 MS. PULLIAM: Well, I mean, for instance, I 3 A Alan McClain, and be assigned it to somebody else. Imay 4 haven't had the chance to read this document to know 4 or may not have told Alan what it was about. My understanding 5 what all I might want to inquire about, but I do 5 is that the lawyer probably did not know what it was about 6 notice, for instance, that there are occasions where 6 unless Alan Alan mentioned it to him. And keep it in mind, 7 they point out that an opinion is Andrew Blood's on 7 too, Ma. Pulliam, that our folks over there at the Department 8 several occasions, and most of the time they don't 8 basically are respondents' attorneys. So a lot of those people 9 point out whose Opinion it is. 9 Would have the same opinion as the four law judges that we - 10 MR. HOLMES: Okay. 10 the general reputation of the four law judges you talked about 11 MS. PULLIAM: And then, there are occasions when 1 that many respondents or the majority of respondents' attorneys 12 they point out -- and I haven't been able to read 12 Would, in my estimation, and that may be that's the only 13 through this. And they're then, I've found two 13 thing [can think about as far as them naming a judge. 14 occasions where they've pointed out that it was 14 In 15 Ellig's opinion. 15 A Right- 16 MR. HOLMES: Okay. 16 Okay. 17 MS. PULLIAM: So, those are two of the people 17 A Because again, I wasn't aware that they named any. What I 18 that we've talked about that I've found out that 18 did was take this document 19 they've pointed to their name regarding the opinion. 19 MS- PULLIAM: Well, i mean, I'm not making a 20 But I have not been through this entire document. Do 20 majority 21 you know, why they would pick sometimes to -- to 21 THE WITNESS: and sent it over to the 22 point out who the ALJ was and sometimes not to. 22 governor's of?ce. 23 THE WITNESS: I do not. I don't know that, and 23 MS. PULLIAM: determination about the fact 24 not only that, I have not read this document. I have 24 that they did. 25 not read it. 25 THE WITNESS: Uh-huh. (Witness nodding head up Page 110 Page 112 BY MR. LAVEY: and 2 Again, for purposes of the record, who prepared it? 2 MS. PULLIAM: My only I had looked to see 3 A I can't say for sure. I think probably all our attorneys 3 that sometimes they did and 4 down in Public Employee Claims had a hand in doing some of the 4 THE WITNESS: Right. 5 research, and who actually wrote it or dictated it, I'm not 5 MS. PULLIAM: - most of the time they didn't. 6 exactly certain. I probably could ?nd that out. 6 THE WITNESS: Right, That's a good point. 7 Can you ?nd that out? 7 I had not noticed that. 8 A Sure. 8 MIL HOLMES: And I thought it was just 9 And you haven't - you haven't read this yourself? 9 MS. PULLIAM: So, if you haven't read the 10 A No, sir. to document and you didn't write the document, then the 1 And so, basically, could you ?nd out who prepared it 11 person to inquire about the document it not you? 12 and? 12 THE WITNESS: Right. 13 A I haven't read it. In fact, I wasn?t aware until Ms- 13 MS. PULLIAM: Although, it was done at your 14 Pulliam just said, that any Admiistrative Law Judges were 14 direction? 15 mentioned in there. 15 THE WITNESS: That's true. And what - 16 MS. PULLIAM: Well, let me ask this question, 16 MS. PULLIAM: And it was part of your 17 because this might shone this whole thing down too. 17 investigation. 18 Was the assignment to get this done given to any 18 THE WITNESS: Right. General general 19 particular lawyer, although other people would work 19 research assignment. And the part ofthc document I 20 with them and under their direction, was this 20 would have read would have been the summary where it 21 THE WITNESSsaid total case review, disputed, total af?rmative, 22 MS. PULLMM: Not by you? Okay. 22 that part of it. That's the part I lookedht. 23 THE WITNESS: My best reeollmtion is I gave it 23 MS. PULLIAM: Okay. 24 to Alan McClain- 24 BY MR. LAVEY: 25 25 Could you please ?nd out like who -- who compiled that HARRISON VS. COFFMAN. ET AL Page 109 - Page 112 KAY BUTLER, 501-868-8134 Multi-Page1M J. MICHAEL PICKENS, 4-12-00 Page 113 Page 115 1 document, and give the names to Mr. Holmes? We may just I something similar to what -- to the top of that where 2 have to take a brief deposition of them. 2 it's, you know, total number of cases decided in 3 A And again, it's my testimony it could have been one or 3 favor of claimant and respondent. It Will 4 more of our attorneys that was doing -- 4 MR. HOLMES: And that's not the first time. You 5 Right. I understand. Fine. 5 know, Marcus Divine testi?ed to the same thing. 6 A Okay. 6 MS. HARRISON: Right. Did it contain reversal 7 MR. LAVEY: Could I have about two minutes with 7 rates to your to your memory? 8 my clients, please. 8 THE WITNESS: No, I've never seen I 9 MR. HOLMES: You may. Do you want us to step 9 would have if you asked me what reversal rates 10 out of the room? 10 were for Administrative Law Judges, I would probably 11 MR. LAVEY: No- 11 have an opinion is that -- on that as a - as a 12 (OFF THE RECORD) 12 former respondents' attorney, but I don't: have -- 13 BY MR. LAVEY: 13 I've never seen anything like that. 14 Directing your attention to PX-7, regarding the 14 MS. HARRISON: Okay. 15 decisions that are oh, I'm sorry -- 15 THE WITNESS: I've never seen it. 16 A That's okay. 16 BY MR- LAVEY: 17 -- re?ected on that shows that state the 17 Also, while we're on the record, in Chairperson Coffrnan's 18 decisions that are inconsistent with the law? 18 statement to the insurance company, he makes reference to a 19 A Uh-huh. (Witness nodding head up and down.) 19 document or a paper that he prepared showing reversal rates and 20 Could either you or Mr- Coffman or Mr. Holmes get us 20 where Judge Harrison ?t in. Could I plmse ask or make 21 copies of those opinions so 21 make a request for a copy of that, if you have it, please. 22 MR. HOLMES: We'll take care or it. 22 MR. HOLMES: Sure, yeah. The other thing I 23 MR. LAVEY: Okay. 23 don't know that I've ever seen. 24 MS. HARRISON: Also, do you mind 24 MR. LAVEY: Okay. 25 MR. HOLMES: Go ahead. Go ahead. I don't mind. 25 MR. HOLMES: That earlier document that you Page 114 Page 116 1 Go ahead with it. 1 asked for. I've never seen that, but I'll check. 2 MS. HARRISON: - also, know that at the 2 MS. PULLIAM: [just heard about it today. 3 Commission, on the screen, you can do the history of 3 MR. HOLMES: No, you didn't. You heard about it 4 each and every one of these cases, and it's going to 4 before, because it's been testi?ed before about it 5 be on the screen, and you just call it up. It will 5 in a deposition. 6 say ?Heard,? ?Heard at Court of Appeals.? I would 6 MS. PULLIAM: All right. Okay. 7 like the screen on these cases, too. 7 MR. HOLMES: Okay. 8 MR. HOLMES: Okay. 8 MR. LAVEY: Just for purposes of the record - 9 MS. HARRISON: Okay. Also, he testi?ed in 9 oh, I'm sorry. 10 direct that a meeting in which he brought this 10 THE WITNESS: No, 30 ahead. You can talk. 1 1 document - 11 BY MR- LAVEY: 12 MR. LAVEY: Right. 12 Regarding the State Chamber of Commerce, that's a private 13 MS. HARRISON: that Mr. Coffman had some kind 13 entity; is that correct, just like a non-pro?t corporation, or 14 of a similar document in which be had some analysis 14 do you know? 15 done, that had been done independently, not at your 15 A I don't know. 16 direction; right? 16 Okay. And regarding the Arkansas State Chamber or 17 THE WITNESS: Yes. 17 Commerce, whose interests does it represent, if you know? 18 MR. LAVEY: Yes. 18 A Members of the State Chamber of Commerce, and I don't know 19 MS. HARRISON: I would like a copy of that 19 who all the members would be. 20 document. 20 That would he basically employers and industry? 21 MR- HOLMES: If we have it. I'll talk to him 21 A I expect so, but I v- I know you have some very small 22 and if he has it, We'll give it to you. 22 businesses that are members of the State Chamber tori. 23 MR. LAVEY: Sure. 23 Right, sure- 24 THE WITNESS: And let me say this, all I recall 24 A Yeah. 25 Eldon having was not really an analysisyou know, does it primarily represent self?insurers HARRISON VS. COFFMAN. ET AL Page 113 - Page 116 KAY BUTLER, 501*868-8134 Multi?PageTM J. NUCHAEL PICKENS, 4-12-00 Page 117 Page 119 1 such as the members of 1 MS. HARRISON: and I'm trying to explore with 2 A Does who? 2 you other reasons why insurance rates may be driven 3 The Chamber of Commerce. Does it primarily represent the 3 up other than the law itself. 4 interest of 4 THE WITNESS: Oh, I would -- 5 A No, that would not be my understanding. I would think 5 MS. HARRISON: And what have you looked into to 6 they represent the broad interest of the business community, 6 determine other factors that may have a severe impact 7 not just self-insurers. Self-insurers generally are the 7 on driving up insurance premium rates in the State of 8 biggest companies who have the ability and ?nancial integrity 8 Arkansas, 9 to be able to self?insure. The State Chamber's got a lot of 9 MR. PICKENS: Yeah, and I - 10 very small morn-and-pop type companies that are members. 10 MS. HARRISON: -- as the consumer protector of 11 MS. HARRISON: May I ask him one question again? 11 the State of Arkansas. 12 MR. HOLMES: Yes. 12 THE WITNESS: Right, right. I can say this. 13 MS.HARRISON: Do the self-insured industries, do 13 Generally speaking again, we have sctuaries wh -- 14 they contribute to the Assigned Risk Group? 14 who basically look at all the all the lost data 15 THE WITNESS: Self?insureds? 15 and everything that goes into rate making that give 16 MS. HARRISON: Yes. 16 us opinions. But generally speaking, there - 17 THE WITNESS: [don't know the answer to that 17 certainly there are other factors besides Court 18 question; I really don't. I don't know that they do. 18 decisions that go into whether or not I rate goes up 19 MS. HARRISON: If you assume that they don't, 19 or a rate goes down. Court decisions are a factor. 20 would that have an impact on insurance rates? 20 They're -- in some cases they can be a pretty heavy 2] THE WITNESS: I don't know. I'm not an actuary- 2i factor. 22 NCCI does all our property and casualty Workers' Comp 22 MS. HARRISON: Can you give me a percentage of 23 actuarial analysis, and I don't know. 23 what kind of a heavy factor there is? 24 MS. HARRISON: But if the self-insured employers 24 THE WITNESS: I can't; I really can't. But you 25 do not contribute to the assigned risk pool, then 25 know, other factors would he the cost of medical care Page 1 18 Page 120 1 that means only insurance companies in the state have 1 and that's going up, obviously. The cost of 2 to contribute to the assigned risk pool; is that 2 prescription medication and hospital care, the cost 3 correct? 3 of claims, the actual indemnity rates, you know, 4 THE WITNESS: Right. If your -- if your initial 4 whether it's PPD or rates that are paid. I mean, 5 presumption is correct, then that would be accurate, 5 those are set costs in the system pretty pretty 6 I would expect. 6 much. 7 MS. HARRISON: All right. And would that have 7 MS. HARRISON: And also placing - assuming I'm 8 an effect on insurance rates in this state? 8 correct, placing the entire burden of assigned 9 MR. HOLMES: Would what? I don't understand the 9 risk pool on the backs of all insurance carriers in 10 question. 10 the state may also have an impact, be a factor, if 11 MS. HOLMES: The fact that only insurance 11 you assume that's been happening? 12 companies have to contribute to the assigned risk 12 THE WITNESS: Generally speaking, the principal 13 pool, as the Insurance Commissioner, would you say 13 of insurance is about spreading risk, and the further 14 that that would have a bad impact on business, small 14 you can spread the risk, the lower the rate is for 15 businesses, particularly on insurance rates? 15 everybody, that's correct. 16 THE WITNESS: Well, I can't say, because that -- 16 MS. HARRISON: And if you remove the largest 17 again, I'm not an actuary, number one. Number two -- 17 industries out of that risk factor, then that's going 18 maybe I don't understand the question. And I promise 18 to have a negative impact; is that correct? 19 I'm not trying to be dif?cult. I don't -- 19 MR. HOLMES: I'm going to object to the form of 20 MS. HARRISON: Well, I guess the relevance of 20 the question. You're talking about removing people 21 the question is that your concern with all this is 21 from things that they're not a part of and frankly in 22 driving up insurance rates on all of these liberal 22 my understanding of it, that's not properly a part of 23 interpretations of 23 this. 24 MR. PICKENS: Uh-huh. (Witness nodding head up 24 MS. HARRISON: All right. I'll withdraw the 25 and down.) 25 question. HARRISON VS. COFFMAN- ET AI. Page 117 - Page 120 KAY BUTLER, 501-868-8134 Multi-Pagem J. MICHAEL PICKENS, 4-12?00 Page 12] Page 123 1 MR. HOLMES: I think we're - I think we're I Sure. Take your time. 2 getting argumentative now. 2 A It was not about this subject, I can tell you that. 3 MS- HARRISON: I'll withdraw that. 3 Right. 4 MR. HOLMES: Anything else? 4 A It was about -- can we go off the record a minute? 5 BY MR. LAVEY: 5 Sure. 6 One last - other than and what-have?you, have you 6 A Maybe I can get some help from - 7 given any other things in writing or by e-mail to, we'll say, 7 Sure. 8 Brenda Turner pertaining to the opinions of the Commission or 8 (OFF THE RECORD) 9 the decisions of the ALI: or the decisions of Judge Harrison? 9 THE WITNESS: It was the - the Commission pays 10 A Not anything to Brenda that I can recall, and I would not 10 a fee to help fund part of the Workers' Compensation 1] have kept copies of anything that I send to my liaison. I 1] Fraud Unit, and it's -- there had been some talk that 12 mean, unless it's something that I want a copy of for some 12 that fee should be reduced or eliminated and 13 reason. 13 Commissioner Wilson had talked to me about that, you 14 Right. 14 know, if we would be in favor of that, opposed to 15 A If] send it to my liaison or to the governor's office, I 15 that. I talked to Marty Newla who is the Director 16 generally don't keep a copy of it. 16 of the Fraud Unit. He said we wouldn't want to 17 Okay- And the same would be true if you sent stuff to 17 eliminate it, but we -- you know, we'd be willing to 18 Marcus Divine? 18 talk about reducing it. And I think the last letter 19 A Yes, sir- 19 I wrote to Commissioner Wilson said basically that, 20 And the same to Brenda Turner, obviously? 20 and it was a dead issue at that point. I don't know 2] A Right. And again, unless I wanted to keep a copy of it. 21 that we talked about it anymore. 22 don't remember having a lot of exchange. I had more exchange 22 BY MR. LAVEY: 23 with Marcus than I did with Bread; and when Brenda called, it 23 Any, like, correspondence and that's going to he that's 24 was mainly to clarify or to ask a question about something she 24 ours -- 25 was hearing from Marcus. 25 (THEREUPON, a brief discussion was held off the Page 122 Page 124 1 Right. Anything like emails or stuff or letters to I record between Lavey and Ms. Pulliam.) 2 Chairperson Coffman about - 2 BY MR. LAVEY: 3 A I've got some - about what? Yeah. 3 - any like e-mails or correspondence between you and 4 Yeah. About the opinions of the Commission or the erosion 4 Steve Carter? 5 of Act, you know, 796 by the Commission and their decisionsdid after the meeting we had with - with 6 How about Mr. Walmsley? 7 Chairman ColT man that we talked about earlier 7 A No, no, not at all. I will say that Mr. Walmaley wrote me 8 Yes. 8 a letter, something that didn't have anything to do with this. 9 A -- I wrote him a letter thanking him for keeping an open 9 He owned a - he owned a building. One of the state agencies 10 mind and thanln'ng him for meeting with these folks. It was, 10 was a tenant in a -- in a building that he owned up in 1] you know, I don't remember, a seven-eight-line letter, and 1] Batesville, and the state agency was thinking about moving. 12 that's pretty much the subjects of it. I'll be glad to get you 12 And Mr. Walmsley kind of wanted to know what the decision to 13 a copy of it. 13 move out of his building into another building was based on. 14 Would you get me a copy of that, please, sir. And one 14 Right. 15 last thing, any kinds of communications with Commissioner 15 A I had no idea, but I forwarded Mr. Walmsley's letter to me 16 Wilson about those same topics? 16 on to Ed Riley at the Employment Security Division and Ed - Ed 17 A No. Commissioner Wilson and have communicated a couple l7 looked at it and dealt with that issue with Bill. 18 of times by letter on the Drug Free Work Place Act that he 18 Okaythat I did. He and Sharon Meador, I think, at 19 A But it didn't have anything to do with Workers' Comp. 20 the Commission came up with 20 Since Judge Harrison's discharge on August 19, 1998, to 2] Right. 21 the present, have -- has Workers' - has the Insurance 22 A a legislative proposal, and then, number two I'm 22 Department made any kind of an analysis of the decisions of the 23 trying to think about what the other topic was -- a Drug Free 23 Workers' Comp Commission, whether they be the Commission's 24 Work Place I'll think of it in a minute. There was one 24 decisions or the decisions of the 25 other topic. 25 A No. HARRISON VS- COFFMAN- ET Al. Page 121 - Page 124 KAY BUTLER, 501-868-8134 Mum-PageTM J. MICHAEL PICKENS, 4-12-00 Page 125 MR. LAVEY: That's it. Thank you so much. I 2 THE WITNESS: Okay. Thank you. 3 (THEREUPON, at 12:25 pm. the taking of the 4 above-captioned deposition was concluded.) 5 (Signature waivedPage 126 a a I I A STATE OF ARKANSAS COUNTY 09 i u' I, KAY BUTLER, A CERTIFIED COURT REPORTER AND NOTARY PUBLIC, in and for the aforesaid county and state, do 01:11in that the vibes, 1. MICHAEL PICKENS, who? trunnion appear: in the foregoing ONE HUNDRED TWENTY-FIVE $35;ng Iva by til: depoocnt. I FURTHER CERTIFY that It: mtimony of said witness was totally-ac, unmask ,mdw?uca?umduocd luperVilion. CERTIFY that deposition is a In: and Wmdof?ntu?moygimhynid wilnat,tothe but of my and ability. I I on: no?: counsel for. Inland to nor cap any In action in which this deposition Iakcn. thcpartiuhuclo.nor?nancialy Lha?otm' .inmu'onwomofthisacuoo' ,and I ?gmizlmtinthewbood'r thu?foc?tlsot?o so anti mdmc??o odimparti i mquimmc torelinquisboonlm ofanoriginal umcriptor copies it?uou??odanddciivcwd WITNESS, MY HAND AND SEAL, THIS DATE: APRIL 21, 2000. BU i EEK, CCR Ca??od Court Reporter and Natty Public L. S. Cati?calc No. 284 My Commission Expires: IO-ZI-OS HARRISON VS. COFFMAN- ET AL Page 125 - Page 126