Courtney Haveman and Amanda Spillane v. Bureau of Professional and Occupational Affairs, State Board of Cosmetology of the Commonwealth of Pennsylvania Petitioners' Application for Summary Relief EXHIBIT 1 Tammy Y. O'Neill 1 2 3 4 5 6 7 8 9 10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA COURTNEY HAVEMAN AND AMANDA SPILLANE, PETITIONERS : : : : VS : No. 765 MD 2018 : BUREAU OF PROFESSIONAL AND : OCCUPATIONAL AFFAIRS, STATE : BOARD OF COSMETOLOGY OF THE : COMMONWEALTH OF PENNSYLVANIA,: RESPONDENT : VIDEO DEPOSITION OF: TAKEN BY: BEFORE: 11 12 DATE: PLACE: 13 14 15 16 17 18 19 20 TAMMY Y. O'NEILL PETITIONERS NATIVA P. WOOD, RDR NOTARY PUBLIC BRYCE CONNOR, VIDEOGRAPHER NOVEMBER 18, 2019; 10:50 A.M. COZEN O'CONNOR 17 NORTH SECOND STREET SUITE 1410 HARRISBURG, PENNSYLVANIA APPEARANCES: INSTITUTE FOR JUSTICE BY: ANDREW WARD, ESQUIRE KIRBY THOMAS WEST, ESQUIRE 901 NORTH GLEBE ROAD SUITE 900 ARLINGTON, VA 22203 (703) 682-9320 ahward@ij.org FOR - PETITIONERS 21 22 23 24 25 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF STATE BY: SHANA M. WALTER, ESQUIRE 2601 NORTH THIRD STREET HARRISBURG, PA 17106 (717)783-7200 shanwalter@pa.gov FOR - RESPONDENT Golkow Litigation Services Page 1 Tammy Y. O'Neill 1 Q -- Miss O'Neill. My name is Andrew Ward. 2 I am an attorney with the Institute for Justice, and 3 this is my colleague, Kirby West. 4 plaintiffs in this case, which challenges the 5 constitutionality of the good moral character 6 requirement for limited cosmetology licenses. 7 8 We represent the Please speak loudly and clearly for the reporter and the video. 9 Would you just say and spell your name. 10 A Tammy O'Neill, T-a-m-m-y O-N-e-i-l-l. 11 Q And what is your title? 12 A Chair of the State Board of Cosmetology. 13 Q Have you ever been deposed before? 14 A No. 15 Q I dislike this question, but I have to 16 ask. 17 medicine, or medical condition, or anything like that, 18 that might impair your ability to testify today? Are you under the influence of any drug, or 19 A No. 20 Q And do you understand that although we are 21 sitting here in this law firm, you are under oath. 22 This is under penalty of perjury. 23 you were testifying in a courtroom? 24 A Yes. 25 Q Okay. It's the same as if So the way this goes is that I ask Golkow Litigation Services Page 4 Tammy Y. O'Neill 1 button to repair the internal bleeding. 2 MS. WALTER: Can we just clarify for the 3 record. 4 suicide. 5 attempted to commit suicide. You stated that the applicant committed She, in fact, did not commit suicide, she 6 MR. WARD: 7 to commit suicide. 8 BY MR. WARD: 9 Q That's correct, she attempted Did you know that in hearings to get 10 licenses for cosmetology -- to practice cosmetology, 11 that applicants discuss material like this? 12 13 14 15 A Yes and no. I mean, some go into it in detail, some do not. Q Do you normally review these proposed orders and adjudications? 16 A 17 the meeting, yes. 18 Q Do you review them? 19 A Yes. 20 Q Do you read all of them? 21 A Yes. 22 Q So you would have seen this when this came 23 before the Board? 24 A 25 time, yes. As a Board for the agenda on the docs for If I would have been on the Board at this This was before my time. Golkow Litigation Services Page 26 Tammy Y. O'Neill 1 2 Q What do you think this hearing was like for the applicant? 3 MS. WALTER: Objection. She can't put her 4 shoes in the -- put herself in the shoes of an 5 individual at a hearing. 6 BY MR. WARD: 7 Q You can answer my question. 8 A Difficult. 9 Q Do you think she was upset? 10 MS. WALTER: Objection. The witness 11 cannot opine about someone else's feelings. 12 BY MR. WARD: 13 Q You can still answer. 14 A I mean, yes and no. 15 Q Why do you say -- what do you mean by yes A Sometimes people will tell you what they 16 17 and no? 18 want you to think they feel, or whatnot, to get what 19 they want. 20 and whatnot. 21 on paper to get to actuality of a decision. 22 23 24 25 Q Sometimes it's, you know, true feelings So it's a lot of reading through what is Could you tell me some more about that? MS. WALTER: Objection. Can you rephrase your question. MR. WARD: Golkow Litigation Services I'm, I'm -Page 27 Tammy Y. O'Neill 1 MS. WALTER: I apologize. Can you 2 rephrase the question? 3 information about the deliberative process that occurs 4 when a Board member is reviewing an adjudication, I'm 5 going to direct her not to answer because it's 6 privileged. 7 question so it doesn't appear to be seeking that 8 information, you can move forward. 9 BY MR. WARD: 10 11 Q If your question is asking any So if you would like to rephrase your Were you suggesting that applicants are dishonest in these hearings? 12 A Sometimes, yes. 13 Q Why do you think that? 14 A So they can obtain what they're searching 15 for, looking for, trying to acquire. 16 Q 17 Do you think they falsify their histories? MS. WALTER: Objection. The thought 18 process of a Board member when, making, a decision is 19 privileged information. 20 21 22 MR. WARD: Are you directing her not to answer? MS. WALTER: To the extent that you're 23 seeking matters that are concerned with the 24 deliberative process, yes. 25 MR. WARD: Golkow Litigation Services So I'm not asking her about any Page 28 Tammy Y. O'Neill 1 Q And you weren't on the Board at that time? 2 A Correct. 3 Q Did you have to go through any sort of 4 criminal history check to get licensed as an 5 instructor? 6 A Yes. 7 Q Did you end up going into a hearing? 8 A No. 9 Q Were you provisionally denied for that 11 A No. 12 Q But you submitted a background check 10 13 reason? maybe, or criminal records? 14 A Yes. 15 Q Going back a little bit, do you think that 16 the Board members judge character well? 17 A From what they have in front of them, yes. 18 Q Why do you think that? 19 A Because they take their personal opinions 20 21 out of it. Q 22 What opinions do they use then? MS. WALTER: Objection. I'm going to 23 direct her not to answer. 24 seeking is subject to deliberative process and it's 25 privileged. Golkow Litigation Services The information you're Page 51 Tammy Y. O'Neill 1 BY MR. WARD: 2 Q Do you think anything about Board members 3 makes them particularly well-situated to judge 4 character? 5 A 6 say most of them. 7 A lot of them have, you know, dealt with situations in 8 their life. 9 10 11 12 Yes. Most of them -- well, I shouldn't All of them are from the industry. Q What do you mean by, "situations in their A Not many have had easy rods themselves to lives?" get to where they are. 13 MS. WALTER: I'm going to object to any 14 additional questions regarding the personal lives of 15 the Board members, because it's irrelevant. 16 To the extent that any or all of them are 17 licensees of the Board of Cosmetology, of course 18 that's relevant, but anything additional that's 19 outside of the scope of their function as Board 20 members is irrelevant. 21 BY MR. WARD: 22 23 Q There are Board members that aren't in the industry; is that correct? 24 A Yes. 25 Q Do you think those Board members who don't Golkow Litigation Services Page 52 Tammy Y. O'Neill 1 have industry experience are well-situated to judge 2 character? 3 A Yes. 4 Q Why is that? 5 MS. WALTER: Again, I'm going to object to 6 relevance. 7 statutorily -- judge an individual's good moral 8 character is statutorily authorized. The Board's ability to judge character is 9 Miss O'Neill can answer as the chairperson 10 of the Board to what the Board's function is as far as 11 judging character. 12 BY MR. WARD: 13 Q The question was, why do you think the 14 nonprofessional members of the Board are good judges 15 of character? 16 A It gives a well-rounded Board to make 17 decisions and therefore determine the appropriate 18 outcome for a final decision. 19 Q So it's not that they have particular 20 ability, it's just that there's a diversity of views 21 on the Board; is that fair? 22 A Yes. 23 Q And for the professional members, it's 24 their -- excuse me, I'm sorry. 25 professional members, it's their familiarity with the Golkow Litigation Services And for the Page 53 Tammy Y. O'Neill 1 Q The question was, being in a difficult 2 industry makes you a good judge of character, and all 3 the trades are difficult industries to succeed in, 4 does that mean anyone who's in a trade becomes a good 5 judge of character? 6 A Yes and no. As a Board member, you have 7 to go through certain steps and criteria to become a 8 Board member. 9 a Board member and a representative of the Board to 10 make decisions based on the rules and laws that are 11 set forth. 12 Q You take an oath to present yourself as So if you've been a member of a trade and 13 then you swear an oath to do a good and fair job, that 14 will make you a good judge of character? 15 MS. WALTER: Are you meaning -- when you 16 say you, are you meaning anybody or Tammy O'Neill as 17 chairperson of the Board? 18 MR. WARD: 19 MS. WALTER: Both. Okay. She can answer the 20 question as chair, and her opinion about any other 21 trade or industry is irrelevant. 22 23 24 25 THE WITNESS: I would say yes. BY MR. WARD: Q And that was yes, someone who has been in a trade and then takes an oath to be a fair Golkow Litigation Services Page 56 Tammy Y. O'Neill 1 adjudicator, becomes a good judge of character, yes? 2 A Yes. 3 Q And you also are a good judge of 4 character? 5 A Yes. 6 Q Do you think the other Board members are 7 good judges of character? 8 A Yes. 9 Q Why do you think that? 10 A For the same reasons they were appointed 11 12 13 to the Board. Q Do you know if they have any special training in any fields? 14 A I do not. 15 Q So -- well, I can ask about you. 16 17 18 19 20 Do you have any particular training in ethics? A For the job that I do, yes. I have taken many courses on management, leadership, ethics. Q Have you taken any courses on whether people who commit crimes are or are not good people? 21 A No. 22 Q Ever study psychology? 23 A No. 24 Q Religion? 25 A Yes. Golkow Litigation Services Page 57 Tammy Y. O'Neill 1 Q How so? 2 A Through years back with church. 3 Q Sociology? 4 A No. 5 Q Do you know if any of the other Board 6 members have studied sociology? 7 A I do not. 8 Q Psychology? 9 A I do not. 10 Q Criminology? 11 A I do not. 12 Q Philosophy? 13 A I do not. 14 Q When the Board issues a final decision, do 15 16 Board members write those or does somebody else? A The adjudications and final orders are 17 written at that point in time as to what the Board's 18 final decision has been and is submitted. 19 Q Yeah, but who drafts those things? 20 A Our words are taken down and then our 21 22 23 Board attorney. Q Okay. You said you were familiar with the good character requirement; is that correct? 24 A Yes. 25 Q What do you know about it? Golkow Litigation Services Page 58 Tammy Y. O'Neill 1 A As far as good character, it's somebody 2 who has --you know, they're in good standing, do no 3 wrong, wants to do what's right. 4 has a different opinion of what it could mean, what it 5 does mean. 6 Q I mean, everybody What did you mean by that last part, that 7 everybody has a different opinion about what it could 8 mean? 9 A Well, depending on you -- it could be your 10 religion, it could be your race, a lot of different 11 things as to what it would mean to you. 12 are written down and stated as in black and white, but 13 as I read it, you read it, anybody else could read it, 14 we all interpret things as we want to see them. 15 16 Q Why do you think someone's race would affect that person's decision -- 17 18 19 20 Many things MS. WALTER: Objection, relevance. BY MR. WARD: Q -- how that person decides what good character is? 21 MS. WALTER: Again, I'm going to object to 22 relevance. 23 have brought relates solely to the good moral 24 requirement section of 511. 25 a Board decision are privileged. The facial challenge that the petitioners Golkow Litigation Services Any opinions that go into So I'm going to Page 59 Tammy Y. O'Neill 1 direct her not to answer any, to the extent that it 2 would require a response that would involve the 3 deliberative process. 4 not to answer. 5 I'm going to direct the witness Are you going to repeat your question and 6 clarify whether you're asking her as an individual or 7 asking her as chairperson of the Board? 8 BY MR. WARD: 9 Q Do you remember the question? 10 A No, I don't. 11 Q The question was why does someone 12 assessing character, why would the assessor's race 13 make a difference in that? 14 MS. WALTER: Can you please clarify? When 15 you say someone, who is someone? 16 Board or someone, Joe Smith walking down the street? 17 She's here as chairman -- chairperson of the Board, 18 and she can answer in that capacity. 19 you're asking? 20 BY MR. WARD: 21 Q Someone being the Is that what When you said race might be a factor in 22 how one person decides what good character is, what 23 did you mean by that, and who were you talking about? 24 25 A Just anyone in general, not specifically the Board members or myself. Golkow Litigation Services Just anybody that would Page 60 Tammy Y. O'Neill 1 She is an employee of the Commonwealth of 2 Pennsylvania, and she's here as an officer and as an 3 employee of the Commonwealth of Pennsylvania, not as a 4 private citizen. 5 So yes, she can opine -- she can discuss 6 matters that are relevant to her position as the Board 7 -- as the Board chair. 8 irrelevant. 9 10 MR. WARD: Anything else is completely To be clear, is she speaking for the Board today? 11 MS. WALTER: You have -- except those 12 opinions where she has qualified that it is her 13 personal opinion, she is here as the chairperson of 14 the Board. 15 says. 16 the chairperson of the Board. 17 and continues to be irrelevant. 18 the last two hours that her personal opinion's 19 irrelevant. 20 subpoena her as an individual. 21 That's what your notice of deposition She's a Commonwealth employee. She is here as Her personal opinion is I have objected for If you want her personal opinion, you can You're asking her questions in a dual 22 role. 23 as chairperson of the Board, is this the way A, B, and 24 C occurs, and then you are asking her her personal 25 opinion, which is why I continue to object that she is At -- in one vein, you're asking her questions Golkow Litigation Services Page 63 Tammy Y. O'Neill 1 here -- that her role is as the Board chair and not 2 her personal opinion. 3 for. 4 5 That's what the objections are MR. WARD: Is she speaking on behalf of the Board? 6 MS. WALTER: Did you write the notice of 7 deposition? 8 O'Neill as chairperson of the State Board of 9 Cosmetology, and for the past two hours I've been Your notice of deposition was Tammy Y. 10 objecting that she is not here to give her personal 11 opinion; that she is here as chairperson of the Board. 12 That's why you're asking her questions as the Board 13 chair, what the Board's opinions are, because she's 14 here as the Board chair. 15 Is that right? So let's continue down the path of why 16 she's here, which is as Board chair, and she can 17 provide testimony about the function of the Board. 18 BY MR. WARD: 19 Q To be precise, there's a good moral 20 character requirement in section 510 for full 21 cosmetologists, and there's another one in section 511 22 for limited cosmetologists; is that correct? 23 A Yes. 24 Q Is there any way that someone could have 25 good character under one section, but not have good Golkow Litigation Services Page 64 Tammy Y. O'Neill 1 character under the other? 2 3 A And you're speaking of the programs from the difference between? 4 Q I'm asking if there's any reason why -- if 5 someone could have good character for purposes of one 6 law, but not good character for purposes of the other? 7 A No. 8 9 MR. WARD: second? 10 11 Can we go off the record for a THE VIDEOGRAPHER: record. The time on the camera is 12:46 p.m. 12 (Recess.) 13 THE VIDEOGRAPHER: 14 record at 12:52 p.m. 15 BY MR. WARD: 16 17 We're now going off the Q We are now back on the You said earlier you're familiar with CHRIA; is that correct? 18 A Somewhat, yes. 19 Q What do you know about it? 20 MS. WATER: Objection, relevance, and that 21 will be a continuing objection to any questions 22 relating to CHRIA. 23 BY MR. WARD: CHRIA is not part of the Petition. 24 Q What do you know about it? 25 A I'm not sure how to explain it. Golkow Litigation Services Can we go Page 65 Tammy Y. O'Neill 1 2 back to that? Q 3 You know, yes, sure. 4 5 6 On a quick side topic, are you familiar with an Administrative Code section 7.98? A I honestly -- off the top of my head, I don't know them all. 7 MR. WARD: 8 I am marking -- or asking the court 9 10 I can show it to you. reporter to mark, as Exhibit 5 a printout from Westlaw of 49 PA Code ยง 7.98, Violation of related laws. 11 (Petitioner's Exhibit 5 was produced and 12 marked for identification.) 13 BY MR. WARD: 14 Q Does this ring a bell at all? 15 A Yes. 16 Q What do you know about this regulation? 17 MS. WALTER: I'm going to object, and it 18 will be a continuing objection to any questions 19 relating to 49 PA Code 7.98. 20 to relevance. 21 Petition filed by petitioners. 22 BY MR. WARD: The objection is related This section is not included in the 23 Q What do you know about this regulation? 24 A It is part of the laws that we review and 25 utilize for decision making. Golkow Litigation Services Page 66 Tammy Y. O'Neill 1 BY MR. WARD: 2 Q Does this look to you like it's a printout 3 from the Pennsylvania Department of Corrections? 4 can look at the front page. 5 MS. WALTER: I know, and I could have 6 typed that front page, as could you have. 7 some foundation for the document? 8 MR. WARD: 9 MS. WALTER: 10 I understand your objection. Where it came from? When it I'm going to object to any attempt to have Miss Tammy or Miss O'Neill authenticate the document. 13 14 Is there was printed? 11 12 You MR. WARD: Okay. BY MR. WARD: 15 Q Could you flip over to page 25, please. 16 This says SCI Muncy Education Programs. 17 SCI Muncy as a level 4, close security, adult female 18 facility. 19 cosmetology as one of the full-time vocational 20 programs and certifications offered? It described At the bottom down there, does it list 21 A Yes. 22 Q But you do not know that there were 23 vocational programs for cosmetology being taught in 24 prisons? 25 A To my knowledge, no. Golkow Litigation Services I was aware that Page 71 Tammy Y. O'Neill 1 they were there, but I did not know it was an actual 2 program. 3 4 Q Do you know -- and you might not. Do you know whether the board has authorized these programs? 5 A I cannot answer that. 6 Q What about good character is relevant to 7 8 9 the practice of cosmetology? A Serving the public. It's a major part of their job, is dealing with the public, serving the 10 public, communicating with the public, as well as 11 their overall success. 12 13 Q There are other jobs that are primarily public facing though, right? 14 A Yes. 15 Q Other licensed businesses -- start that 16 one over. 17 licensed, many of those also face the public, right? Other businesses where the employees are 18 A Yes. 19 Q In fact, many businesses where no one is 20 licensed are public facing; is that correct? 21 A Yes. 22 Q You know, grocery store baggers -- 23 24 25 MS. WALTER: Objection, relevance. BY MR. WARD: Q -- handle money and face the public; is Golkow Litigation Services Page 72 Tammy Y. O'Neill 1 2 3 4 that right? A Grocery store baggers, probably not. Cashiers, yes. Q That's a good point. But both of those 5 positions, grocery store cashiers and grocery store 6 baggers, face the public? 7 A Yes. 8 Q Do you think it is important that they 9 have good character? 10 11 12 13 MS. WALTER: Objection, relevance. BY MR. WARD: Q Do you think it's important that grocery store baggers have good character? 14 A Yes. 15 Q Do you think it's important that grocery 16 store cashiers have good character? 17 A Yes. 18 Q Is there any job where it wouldn't be 19 important to have good character? 20 A No. 21 Q So good character is important in 22 23 24 25 cosmetology because it's a public facing business? A Yes. You deal with a multitude of people from infants to elderly. Q Would good character be unimportant in a Golkow Litigation Services Page 73 Tammy Y. O'Neill 1 business that only dealt with one age group of people? 2 A No. 3 Q It would be important there too? 4 A Yes. 5 Q Do you think that the nature of 6 cosmetology makes salon patrons vulnerable to any 7 particular kinds of crime? 8 9 MS. WALTER: Objection to the relevance of the nature of cosmetology to this inquiry. The 10 Petition relates solely to the limited license 11 categories of aesthetics, natural hair braiders, and 12 nail technicians. 13 BY MR. WARD: 14 15 Q If your answer is different for any of those categories, I'd like to know about it. 16 A Can you repeat the question? 17 Q Let me give you an example. I think that 18 being in charge of someone's books, being in charge of 19 finances, would present unique opportunities to 20 embezzle. 21 embezzle, and I think pharmacists probably have more 22 opportunity, because of the nature of their job, to 23 deal drugs. 24 cosmetology that offers specific risks of certain 25 kinds of crime? I think accountants have a unique chance to Do you think that there's anything about Golkow Litigation Services Page 74 Tammy Y. O'Neill 1 A No. 2 Q Okay. 3 I wrote down some more questions about those 4 prison programs. 5 that? 6 A Pretty much, yes. 7 8 Have we exhausted your knowledge of MR. WARD: lunch break. I think I would like to take a 9 Sorry. Off the record, please. 10 THE VIDEOGRAPHER: We are now going off 11 the record. 12 will conclude file No. 2 in the deposition of Tammy 13 O'Neill. The time on the camera is 1:12 p.m. this 14 (Recess.) 15 THE VIDEOGRAPHER: We are now back on the 16 record. 17 Beginning file No. 3 in the deposition of Tammy 18 O'Neill. 19 BY MR. WARD: 20 21 The time on the camera is 1:48 p.m. Q Could you tell me, please, a little bit about the demographics of the cosmetology industry? 22 A Very open; everyone, anyone. 23 Q Is it correct that it tends to be mostly A No. 24 25 women? Golkow Litigation Services Page 75 Tammy Y. O'Neill 1 2 3 4 5 6 7 Q Do you think it's what percentage breakdown, sex breakdown, do you think it is? A In today, it's probably closer to maybe a 50-50, depending on how you look at it. Q Do you know whether most cosmetologists have gone to college? A Some have, some have not. I mean, I can't 8 answer that as an actual -- depending on what path 9 that they choose to take with their career. Some take 10 college courses so that they can become educators on a 11 vocational basis or along those lines, looking at long 12 term for their outcome, their benefits, their 13 well-being for retirement. 14 Q Do you think most colleges -- sorry. 15 Start that one over. 16 don't have a college degree? Do you think most cosmetologists 17 A I would say probably not. 18 Q What about income? 19 20 cosmetology tend to pay? A That's all based on the individual 21 themselves. 22 wish it to be. 23 24 25 How well does Q They can make their paycheck what they What do you think an average -- what do you think the average salary is for a cosmetologist? A There again, it would vary. Golkow Litigation Services I mean, basis Page 76 Tammy Y. O'Neill 1 coming out of school, just being new to the industry, 2 it could be, you know, minimal of 25,000 a year, but 3 depending on the path or the salon or -- I mean, it's 4 not even that they have to go into a salon, but the 5 area that they choose to go in, they could begin at 6 50,000 or so. 7 Q 8 Okay. 9 10 11 Do you think that the ethnic makeup represents the population at large? Do you think it tends to be skewed towards people of color? A No, no. There again, it's a wide range of 12 demographics. 13 location, but there again, it's very varied. 14 Q A lot will depend on your area, your Do you think it tends to have a 15 disproportionate share of people who do not speak 16 English as a first language? 17 MS. WALTER: 18 THE WITNESS: 19 Objection, relevance. No. BY MR. WARD: 20 Q Not even including nail technicians? 21 A I mean, that would be all based on an 22 employer's decision as to employment and offering them 23 employment. 24 25 Q One thing I was just curious about. Is there anything besides cutting hair that Golkow Litigation Services Page 77 Tammy Y. O'Neill 1 MR. WARD: 2 I'm going to show you another one for 3 Okay. Thanks. example. 4 This is 10. This is In the Matter of the 5 Application for A cosmetology License of Janice 6 Martinez, applicant; Order Adopting Hearing Examiner's 7 Proposed Adjudication and Final Order. 8 9 10 (Petitioner's Exhibit 10 was produced and marked for identification.) BY MR. WARD: 11 12 Q and tell me what she was convicted of? 13 14 15 16 17 Could you look at paragraph 4 on page 3 A felony. One count of murder, a first degree Term of incarceration for 15 to 30 years. Q And could you just read paragraph 5 on the same page? A "Applicant's conviction of June 25th, 18 2004, involved her use of blunt force trauma to the 19 head of her 10-month-son, Santos Martinez, on July 20 4th, 2003." 21 22 Q How old was she when that happened? It's the next paragraph? 23 A 28. 24 Q And could you just flip to the front and 25 say the result of her application? Golkow Litigation Services Page 87 Tammy Y. O'Neill 1 A Granted. 2 Q Did she get probation? 3 A Yes. 4 Q How long? 5 A Four years. 6 Q So that's the same as the applicant in the No less than four years. 7 prior exhibit, right, granted but probation for four 8 years? 9 A Correct. 10 Q Do you think it's odd -- strike that. 11 In one of these adjudications, someone who 12 was 19 at the oldest, around 19 at the oldest, slept 13 with two high schoolers, and in the other one someone 14 was 28 when she murdered her son. 15 right? Did I get that 16 A Um-hum. 17 Q What do you think, sitting here today, 18 19 about them having the same outcome in this process? A First, age is not a determining factor. 20 It's what is submitted to us to review and determine 21 the outcomes based on our -- what is proposed to us. 22 Q You agree, I assume -- let me know if 23 not -- that murdering a 10 month old is worse than a 24 statutory sex crime between teenagers, right? 25 A Um, that's a tough one to say yes or no Golkow Litigation Services Page 88 Tammy Y. O'Neill 1 to. 2 Q Why is that? 3 A Because they're both criminal crimes and 4 how you look at them, because of the age or anything 5 along those lines, should not be a determining factor 6 in our business. 7 working with the public so, you know, what one might 8 see as a huge fault could be different in somebody 9 else's eyes. There again, you are employed and There again, that's where we have to 10 look at all facts and documents that support our 11 decision or that will support our decision. 12 Q Do you think people who commit crimes at 13 28 are any less responsible than people who commit 14 crimes around 19, just based on age? 15 A There again, I can't answer that one. 16 Q So to sum up then, correct me if I'm 17 wrong, I think you said you can't say whether people 18 are more or less responsible for a crime based on age, 19 and you also can't say whether crimes are worse or 20 better based on the nature of the crime; is that 21 right? 22 A In some cases, yes. 23 MR. WARD: 24 Let's go to Petitioner's 11. 25 Okay, thank you. of the petitioners in this case. Golkow Litigation Services This is one Her name's Amanda Page 89 Tammy Y. O'Neill 1 Spillane, In the Matter of the Application for 2 Licensure as an Esthetician of Amanda A. Spillane, 3 Applicant. 4 (Petitioner's Exhibit 11 was produced and 5 marked for identification.) 6 BY MR. WARD: 7 Q Do you see in the middle of page 23, 8 there's a paragraph that starts, "Far from having 9 committed." 10 A Yeah. 11 Q It kind of looks like 22 twice, but it's 12 22, then 23. It looks like this. 13 A Yes. 14 Q You're okay? 15 (Indicating.) And do you see in the middle of that 16 paragraph it says, "Although applicant's ability to 17 maintain employment, complete esthetician training, 18 and refrain from committing additional crimes since 19 being released from prison is laudable, such 20 accomplishments do not serve to negate the record of 21 poor moral character applicant developed over the 22 course of several years so as to establish her current 23 good moral character?" 24 A Yes. 25 Q And if you flip to the front of this, what Golkow Litigation Services Page 90 Tammy Y. O'Neill 1 happened to her application? 2 A Says here it was denied. 3 Q Okay. 4 5 MR. WARD: next exhibit. 6 (Petitioner's 12 was produced and marked 7 for identification.) 8 BY MR. WARD: 9 I am going to move on to the Q So this is 12. This is In the Matter of 10 the Application for a Cosmetology License of Emille, I 11 think, Leshow. 12 Examiner's Proposed Adjudication and Final Order. 13 you see -- if you could flip, please, to page 28, and 14 you can see on the bottom paragraph that it talks 15 about how, "The applicant has made positive steps in 16 her rehabilitation, including re-enrolling in Empire 17 Beauty School in August, 2014, and graduating in 18 August, 2015." This is the Order Adopting the Hearing And 19 A Yes. 20 Q And it also talks about the applicant 21 being gainfully employed. 22 the next paragraph on page 29. 23 gainfully employed as a baker's assistant." This is the next -- top of "The applicant is 24 A Yes. 25 Q And if you flip to the front of this one, Sorry. Golkow Litigation Services Page 91 Tammy Y. O'Neill 1 this application was granted with six months 2 probation, right? 3 A Yes. 4 Q Or no less than six months? 5 A Yes. 6 Q Does that -- do those seem inconsistent? 7 A I mean, yes, but looking at the dates on 8 them, yes, but I would say looking at the dates 9 in-between them and just the Boards and different 10 things that have been implemented or changes or things 11 of that nature, could be reason for that. 12 know. 13 14 I don't I can't answer for those who made decisions. Q What things could have been implemented since then? 15 MS. WALTER: Objection to the extent that 16 it would call for any information that is privileged 17 as a result of being part of the deliberative process 18 or attorney-client privilege. 19 20 21 MR. WARD: We can come back to that. BY MR. WARD: Q Also on the top of page 29, on Exhibit 12, 22 that's the Leshow application, it sites, "Applicant 23 also attends church as she can." Do you see that? 24 A Yes. 25 Q And if you go back to Exhibit 11, if you Golkow Litigation Services Page 92 Tammy Y. O'Neill 1 flip -- I know it's hard to see. 2 flip to the top of page 24, starts off with, lacked 3 moral culpability for her actions because of her drug 4 use?" 5 I'm sorry. If you Do you see where I'm at? 6 A Yes. 7 Q It talks about -- it says, "Despite 8 applicant's assertion that she has found God and 9 therefore has been spiritually rehabilitated, 10 applicant produced no documentation or evidence of 11 particular conduct demonstrating her purported virtual 12 rehabilitation." 13 Did I get that right? 14 A Yes. 15 Q And the prior one cited going to church. 16 Does spirituality matter to good character? 17 MS. WALTER: Objection to the extent that 18 the question seeks anything that's part of the 19 deliberative process or attorney-client privilege. 20 That would be beyond the Board's decision that's 21 already in the final adjudication and order. 22 If you're asking what the Board considers 23 during executive session, that's not already stated in 24 the order, it's covered by privilege. 25 BY MR. WARD: Golkow Litigation Services Page 93 Tammy Y. O'Neill 1 Q But there are unlicensed shampooers in 2 Pennsylvania? 3 requires a license for, correct? That is not something that the Board 4 A To shampoo only? 5 Q Correct. 6 A Shampoo only, no. 7 8 9 10 They can shampoo only, but they can do nothing more than that. Q Do salons tend to have separate cashiers or do they have -- do the stylists go and also handle the money? Does it vary? 11 A It varies. 12 Q But sometimes there are just separate 13 14 cashiers or desk attendants? A There again, a majority of those that do 15 those positions are ones that are looking to get into 16 the industry and beauty school, or something along 17 those lines sometimes, or they might be a retired 18 cosmetologist. 19 20 Q If you could flip back to Exhibit 9. That's the Hollingshead order and adjudication. 21 Do you remember this one? This is someone 22 who had a sexual relationship that was statutorily 23 inappropriate with two high school girls? 24 A Um-hum. 25 Q If the Board had rejected this Golkow Litigation Services Page 97 Tammy Y. O'Neill 1 application, would that have made -- sorry, I'll start 2 over. 3 4 The point of this process is the protection of salon patrons, correct? 5 A Correct. 6 Q Okay. 7 8 9 10 11 Could you look down at paragraph 21 on page 5 and read what that says? A "Applicant has been employed at Eclipse Salon and Spa as a permanent makeup technician for approximately one year." Q So let's say this adjudication came out 12 differently and she couldn't get the cosmetology 13 license she wanted? 14 A Um-hum, yes. 15 Q She would be still working in a salon as a 16 17 18 19 makeup technician, right? A Possibly, yes. It's more of -- permanent makeup is more tattoo. Q Is there a way that had she not gotten 20 this license, when she was in the salon for a year and 21 presumably would keep working in the salon, is there a 22 way that denying this license would protect salon 23 customers? 24 A Denying it? 25 Q One of my clients, a woman named Courtney Golkow Litigation Services Not necessarily. Page 98 Tammy Y. O'Neill 1 Haveman, was denied an esthetician license. 2 you that she is working in a salon now washing hair, 3 working the cash register, do you think any decision 4 the Board might make if she applied for a license 5 again could protect consumers when she's already 6 working in a salon? 7 MS. WALTER: Objection. Calls for 8 speculation. 9 pending before the Board from Miss Spillane. There isn't a current application 10 11 If I told MR. WARD: I'm sorry, I hope I said correctly that that's Courtney Haveman. 12 MS. WALTER: Oh, I'm sorry. It is still 13 speculation because there is no application from 14 either petitioner pending before the Board. 15 BY MR. WARD: 16 Q So do you think if she keeps standing at 17 the hair washing station, but isn't allowed to move 18 over to a room to do, you know, eyebrows in one of the 19 chairs, will that make people safer? 20 A That would be totally -- you know, as an 21 employer, that would be for the employers on their 22 end. 23 rely heavily on those for their employees, for their 24 well-being, as well as their guests. 25 much. Some employers require background checks and Golkow Litigation Services Others, not so Page 99 Tammy Y. O'Neill 1 Act, or for gross incompetency or dishonest or 2 unethical practices," and it goes on. 3 about right? Did I get that 4 A Yes. 5 Q Do you know what proceedings under that 6 section are like? 7 A As a Board, we review all of the documents 8 presented to us that are submitted by the applicants. 9 We have our discussion, and the adjudication takes 10 place, and, you know, final decisions are rendered 11 from there. 12 Q If there were someone that the Board 13 thought should -- the Board thought shouldn't be 14 practicing cosmetology, would there ever be a time 15 when -- let me start that one over. 16 If someone had done something, committed 17 some sort of bad act or crime that was related to 18 cosmetology, could the Board prevent that person from 19 practicing under this section? 20 A Yes. 21 Q Okay. 22 23 What does the good moral character requirement add that this section doesn't cover? A There again, we take it -- as a Board, we 24 look at everything that we are presented, and the good 25 moral character, we review their crime, documents Golkow Litigation Services Page 102 Tammy Y. O'Neill 1 submitted, and their rehabilitation for discussion, 2 decision, adjudication and final orders to be 3 presented. 4 Q When you were just saying that, were you 5 talking about using the good moral character 6 requirement or using section 519? 7 A We utilize all of them. 8 Q What would be different if there were no 9 10 11 good moral character requirement, given your powers under section 519? A That, I couldn't answer at this time, 12 being that it is still there and we have to take it 13 into consideration. 14 15 Q But you don't know what difference it would make? 16 A At this time, no. 17 Q For now though, the Board enforces the 18 good moral character requirement, correct? 19 A We take it into consideration, yes. 20 Q And you're still doing that today? 21 A Yes. 22 Q Has the way the Board enforced that 23 24 25 requirement changed over time? A That, I can't answer, due to my limited time on the Board. I can't answer for those that were Golkow Litigation Services Page 103 Tammy Y. O'Neill 1 previously on the Board. 2 Q Because you don't know? 3 A Correct. 4 MR. WARD: 5 We're almost done. (Petitioner's Exhibit 13 was produced and 6 marked for identification.) 7 BY MR. WARD: 8 9 10 Q The court reporter is marking Exhibit 13. This is the Board's answer to petitioner's first set of interrogatories. Does that seem right to you? 11 A Yeah. 12 Q Have you ever seen this before? 13 A No. 14 Q If you -- they're not numbered, but if you 15 look to the response to interrogatory No. 1, which is 16 on the second physical page, and flip to the back of 17 that, so the page that looks like this. (Indicating.) 18 A Yes. 19 Q Do you see where it says, "The Board acts 20 in accordance with the guidance provided by the 21 Commonwealth Court relative to the rule of criminal 22 convictions in licensing cases?" 23 A Yes. 24 Q And then it lists three cases, Abruzzese, 25 Bentley, Fulton. Golkow Litigation Services Page 104 Tammy Y. O'Neill 1 A 2 Yes. MR. WARD: 3 know how to spell them. 4 BY MR. WARD: 5 Q They're in there if you need to Other than discussions you had relating to 6 deciding on particular applications, and other than 7 interactions you've had with counsel, have you ever 8 heard of those cases? 9 10 11 12 13 14 A Honestly, I couldn't say yes or no at this Q You don't know whether you've heard of point. those cases? A Yeah, I might have. I would have to see the dates and read through them. 15 Q Sure. 16 A So 2018, I possibly would have. They're from 2018 and '17? 2017, no. 17 And that's for barbers examiners' so no, I would not 18 have seen them. 19 Q I'm not asking you anything your lawyer 20 has told you about them or anything anyone discussed 21 in discussion for a particular application, but other 22 than that, do you know what they're about? 23 A No, I wouldn't, without reading them. 24 Q And do you know if the Board has any 25 public documentation saying that it acts in accordance Golkow Litigation Services Page 105 Tammy Y. O'Neill 1 with the guidance provided by the Court, the 2 Commonwealth Court, in those cases? 3 A I'm sorry, say that again. 4 Q The statement here is that the Board acts 5 in accordance with the guidance provided by the 6 Commonwealth Court relative to the role of criminal 7 convictions in licensing cases. 8 three cases. 9 writing where the Board conveys that message to 10 Then it lists these Do you know if there's anything in applicants? 11 A That, I honestly cannot answer. 12 Q Because you don't know? 13 A Yeah. 14 MR. WARD: I'm going to take a break, go 15 off the record, and I think we can wrap this up in a 16 couple of minutes. 17 18 THE VIDEOGRAPHER: the record. The time on the camera is 2:52 p.m. 19 (Recess.) 20 21 We are now going off THE VIDEOGRAPHER: We are now back on the record at 2:55 p.m. 22 MR. WARD: 23 time. 24 questions left. 25 BY MR. WARD: Thank you very much for your We are almost done. Golkow Litigation Services I have a handful of Page 106 Tammy Y. O'Neill 1 Q Have you ever talked to anyone about this 2 litigation, besides the lawyers providing you legal 3 advice? 4 A This litigation? 5 Q Um-hum? 6 A No. 7 Q Do you know if anyone on the Board has 8 talked to anyone about the litigation, other than 9 other people who work for the government, or lawyers? 10 A Not that I'm aware of. 11 Q Do you know if any of the Board members 12 have ever been convicted of a crime? 13 A I do not know. 14 Q Have you ever been convicted of a crime? 15 A Do speeding tickets count? 16 Q Anything else? 17 A No. 18 MR. WARD: 19 THE WITNESS: 20 MS. WALTER: 21 THE VIDEOGRAPHER: Yes. That's all I've got. Thank you. All finished. We are now going off 22 the record. 23 will conclude file No. 3 and the deposition of Tammy 24 O'Neill for today. 25 The time on the camera is 2:56 p.m. This (The deposition concluded at 2:56 p.m.) Golkow Litigation Services Page 107 Tammy Y. O'Neill Page 108 COMMONWEALTH OF COUNTY OF CUMBERLAND I, Nativa P. Wood, a Registered Diplomats Reporter and Notary Public in and for the Commonwealth of and County of Cumberland, do hereby certify that the foregoing deposition was taken before me at the time and place herein before set forth, and that is the testimony of TAMMY Y. I further certify that said witness was by me duly sworn to testify the whole and complete truth in said cause; that the testimony then given was reported under my direction and supervision; and that the foregoing is a full, true and correct transcript of my original shorthand notes. I further certify that I am not counsel for or related to any of the parties to the foregoing cause, or employed by them or their attorneys, and am not interested in the subject matter or outcome thereof. Dated at Mechanicsburg, this 19th day of November, 2019. 92? . W?s, . my in; e9 (Lexie; Nativa P. Wood, Notary Public Registered Diplomats Reporter (The foregoing certification of this transcript does not apply to any reproduction of the same by any means unless under the direct control and/or supervision of the certifying reporter.) My commission expires: June 23, 2023 Golkow Litigation Services 877.370.DEPS