BEFORE THE WEST VIRGINIA PUBLIC EMPLOYEES GRIEVANCE BOARD

J. HUDSON YATES Grievant. V. TAX DEPARTMENT Respondent. Docket No. 2011-1703-DOR

Transcript of Level III hearing in the above styled case held on May 17, 2012, at the Grievance Boards offices in Elkins, West Virginia.

BEFORE: APPEARANCES:

RONALD REECE Administrative Law Judge J. Hudson Yates Grievant, Pro Se Charlie Fulton, Esquire Counsel for the Respondent Transcription Services Provided By: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXHIBITS G-1 G-2 G-3 Grievant Witness: John Mudrinich Janet Swinler Connie James Respondent Witness Jeff Oakes

I N D E X

Direct 7 36 64 Direct 70

Cross 33 61

Redr 35

Recr

Cross 77

Redr

Recr

E X H I B I T S Marked 16 28 48 Recd 35 35 49

Transcriptionists Certificates. . . . . . . . . .pg 79

Agencys AX

Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 test.

BE IT REMEMBERED that the following proceedings were had on May 17, 2012, to-wit: THE COURT: Testing, testing, test, test,

Okay, were on the record appearing before the

West Virginia Public Employees Grievance Board in a matter styled Yates versus the Tax Department. docket number is 2011-1703-DOR. 17, 2012. Yates case. The

Todays date is May

This is the second day of hearing in Mr. Were situated in Elkins, West Virginia, Mr. Yates appears in

at the senior cent this morning.

person and also by his representative Ms. Janet Swinler. And the Respondent tax, West Virginia Tax

Department appears this morning by hits acting Deputy Commissioner, I believe is the title, and also by its counsel, Ms. Fulton. Mr. Yates, when we were last hear

you had indicated that you wanted to reserve your right to give opening before you presented your case in chief so so ahead sir. MS. FULTON: Okay. Michael Coutz (Unin). I have no secret It was Mr. Coutz

Mr. Coutz did not bother to (unin). files. The file is in the computer.

(unin) attached and notes everything to the tax payers account in GenTax so everyone regardless of location or department would have access to all the information 3 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

available.

It was Mr. Coutz who participated in (unin) The transcript and

North Central Regional Office.

revocation, at a revocation hearing was not made available until months after Michal Coutz issued the letter of reprimand based upon what he heard. Instead

of admitting a mistake and taking corrective actions (Unin) everyone into believing that the charges are true through manipulation and semantics. The Tax

Commission then chose to circle the (unin) around Michael Coutz. This behavior is an embarrassment to

the State of West Virginia and undermines our (unin) state and government. person to (unin). The facts are simple, I had 99 percent of

I had no paper filed.

the Tax Department employees have access to this taxpayer file in GenTax. The transcript of the

revocation hearing shows I did not say what Michael Coutz accused me of. The transcript was made available It

a month after Michael Coutz issued the reprimand.

is obvious Michael Coutz did not bother to check the facts before making false accusations. Michael Coutz Michael

assigned my name to three different documents.

Coutz has often signed Janet Swinlers name to the same type of documents. (Unin) for an entire year,

continuing an (unin) amount of lost productivity times 4 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

and can be better spent collecting delinquent tax. (Unin) issue should have been dismissed at Level I. At

worst it could have been settled at Level II mediation but Jeff Oakes, acting (unin) deputy tax commissioner refused to speak with me to negotiate settlement. for the grievance claim, original claim of unfair treatment, one need not look any further than the circumstances of this grievance. This grievance was As

charged (unin) three serious infractions and has been proven false but yet the semantic tango and gas lighting continues. Ms. Fulton, Senior Assistant

Attorney General, whom is the attorney for the tax commissioner was allowed to call of her witnesses. The

grievant requested and was denied the subpoena for Kim Silvester, Jeff Oakes, Michael Coutz, and Kimela Elmore. The Grievant did not get to ask all of the (Unin)

questions at the first half that he wanted to. Ms. Fulton did not bring up the topics that the

Grievant wished to distress, address, therefore the Grievant was unable to ask questions on cross examination that he wanted to. due process. The Grievant had denied

Mr. Coutz did not follow the published

Division of Personnel disciplinary procedure. THE COURT: Okay, thank you, Mr. Yates. 5 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Whats, whats next, Mr. Yates? MR. YATES: that. THE COURT: Its Jamie, how do you spell the call Jamie Mudrinich, start with

last name, would you help me out? MR. YATES: THE COURT: MR. YATES: MS. FULTON: MR. YATES: THE COURT: time please? MS. FULTON: THE COURT: MS. FULTON: H. THE COURT: Jamie Mudrinich, is that it? M-U-D M, M? M as in Margaret, U-D-R-I-N-I-CM-U-N-D-R-I-N-I-C-H M-U-N-G-R what? M-U-N-D-R-I-N-I-C-H. M-U-D Yes, Im sorry, yes there is a D. Can you give it to me one more

Okay, lets go off the record for a minute. OFF THE RECORD: THE COURT: Okay, were back on the record

and Mr. Mudrinich has joined us to testify in this grievance called on behalf of Mr. Yates, the Grievant. Jan, before you testify Ill need to swear you in. can remain seated but please raise your right hand. 6 Transcription Services provided by: Globespan Transcription You

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q.

(Witness Sworn) Alright, Mr. Yates, go right ahead sir. DIRECT TESTIMONY You are the supervising attorney for the

litigation unit in the Tax Department, correct? A. Q. Thats correct. Okay. And safe to say that you and I are the

only two present that were actually at that revocation hearing, is that correct? A. Q. hearing? A. Q. I was not there for the complete hearing. Okay, and I had left to go to the Revenue Correct. But neither of us were there for the complete

Center as well? A. Q. I recall that, yes. Right, do you recall us passing each other in

the parking lot (unin)? A. Q. I do not recall. You do not, okay. But you do know that there

was a period of time that you were there and I was not? A. Q. A. Correct. Okay. Who called you there?

Danielle Boyd. 7 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 it?

Q.

Did she call you, text you, how did she get

in touch with you? A. Q. A. Q. hearing? A. Q. Yes. You have? MR. YATES: Okay, let me go ahead This is already on record, isnt Phone, phone call. A phone call. She actually called you?

Thats my recollection (unin) phone call. Okay. Have you read the transcript of that

THE COURT: MR. YATES:

Its been made evidence, as the transcript of

that particular hearing? THE COURT: correct. MR. YATES: (Unin). MS. FULTON: MR. YATES: Q. Yes. Okay. Do you have a copy, Ms. Fulton? Its been made part of the file,

There obviously is some contention as to what Okay, Im

was said, who said it, and what (unin). sorry, I gave you the wrong one. A. Yeah.

8 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q.

Im completely sorry, that is something else. Here it is. I apologize for that. There

I apologize.

is, however, one correction on page 21, and this is, was testified to at the first level grievance hearing by Karen (unin) that there is a correction on page 21, line number 4. That is attributed to Jan Mudrinich That

that says should have brought them with you. should be Judge Piper that said that. A. Q. Okay. Okay.

And she, she clarified that at the

level I grievance but this is the, as it was sent to me so it was not marked. I just wanted to make that clear Okay? I was

that it was not Jan that said that.

accused of testifying to three signed payment agreements that had been defaulted on. Reading that,

did I say three signed payment agreements? A. Q. A. Id have to read it again Okay. In its entirety. I dont recall you saying

the word signed payment agreement. Q. Okay. You were not present at that, at this

point but if you would turn to page 18, lines 21 and 22, would you please read that aloud? A. Miss, it says Ms. Boyd? Ms. Boyd, we have 9 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

three signed payment agreements (Unin) that have been defaulted on. Q. Okay, thank you. As I have read that, that

is the first time the words three signed payment agreements were mentioned. left and you had arrived. Shortly after that I had You know, whether we saw

each other, passing each other in the parking lot, but about that time is when I left and you had arrived. Theres actually on the next pay MS. FULTON: Objection. If the Grievant is

going to testify I would request that he be put under oath. THE COURT: Ms. Fulton, thank. Yeah, thats, thats a good idea

I meant to do that earlier. Your Honor, (Unin) intending to

MR. YATES: testify. THE COURT: MR. YATES: THE COURT:

Well thats alright, its Im just clarifying. Well, let me go ahead and swear

you in anyway because if you, you know, I, normally pro se grievants I would normally swear them in at the beginning of their case in chief because while you might not intend to you might, you know, switch over from asking questions to proffering evidence. So, if 10 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

youll raise your right hand? (Grievant Sworn) Thats, thank you Ms. Fulton. Lets just do

it that way, Mr. Yates, ear on the side of caution, okay? MR. YATES: THE COURT: sir. Q. On the next page, could you read lines 1, 2, Okay. Were good to go, go right ahead

and 3 on page 19? A. Q. A. One, 2, and 3? Yes. Line 1, Ms. Body, do we? Line 2, Jan Line 3, Ms.

Mudrinich, yes.

Theyre in the system.

Boyd, we have them in the system. Q. Okay. And then down through there youve,

you actually are speaking with the judge about you never brought a signed, you know a signed copy, a signed certified copy to the revocation hearing before because it was never asked, is that correct? A. correct. Q. A. Okay. Thats what we were talking about. 11 Transcription Services provided by: Globespan Transcription To the best of my recollection, thats

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q.

Okay.

And I believe I returned somewhere on

page 20, around line 1, line 2, when I had come back from the revenue center. And then as we (unin), and is

it correction on line 21, where its attributed to you but it was actually Judge Piper. talking to at that point? A. directly. room. Q. Okay and then if you would look at line 8, Who was Judge Piper

Was he talking to Ms. Boyd?

I dont recall if he was talking to anybody He was probably talking to everybody in the

where Judge Piper asked me if I, if I was able to get a hold of the payment plan agreements and my response was on line 10, can you please read that? A. Q. A. Q. No I did not. And line 11 please? Its me saying no. Okay, thank you. Because in fact, there were

no signed payment agreements, were there? A. Q. Thats correct. That is correct. As a supervisor attorney,

you are responsible for how many other (unin) attorneys, at that time? A. three. 12 Transcription Services provided by: Globespan Transcription At that time I believe it would have been

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q. A. Q.

Okay. Yes.

Was Danielle Boyd one of them?

She was.

Is she still employed with the Tax

Department? A. Q. No, she is not. She is not? Do you recall when she might

have left, approximate timeframe? A. A. She left in the middle of December of 2011. Middle of December of 2011, okay. As a

supervisor if you were going to issue the same letter of reprimand that I was given, (unin) testifying the three signed payment plans, without actually having the (unin) that it was said, would you have still done that? Would you have issued a reprimand? A. Q. I dont understand the question. If you believe, but if this transcript wasnt

made available until a month after the actual hearing. Okay, but the written reprimand was written two weeks, or within a week after the hearing. And youre going

to accuse somebody of testifying under oath as to something, would you do that before you had a transcript to make sure it was accurate or would you wait to make sure? A. I, if I was confident with occurred Id 13 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

probably do it, you know, immediately. Q. Okay and what if you found out later that you

were incorrect? A. Q. Okay. I would apologize. Okay. Excuse me, Im dry, too much talking.

Say you did issue that letter and you found out

later that you were incorrect, you would apologize, would you leave the letter stand or would you withdraw it? A. It would depend on all the circumstances.

Id look at a personnel manual seeing how to appropriate handle the situation. Q. A. Personnel manual, what personnel manual I use that term generically with the rules of

the Department of Personnel. Q. The rules of the Department of Personnel? Is

there such publications or A. Q. A. (unin). booklet or something like a handbook (unin)? There is various items on their website for

supervisors to use in discipline matters, with insubordinates, just those types of documents. what theyre called, I dont, I dont (unin). Q. Okay. Did Mr. Coutz know that? Would he 14 Transcription Services provided by: Globespan Transcription Just

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

have been familiar with such documents? A. Q. I have no idea. No idea. MR. YATES: What I have here, I believe, is

what Mr. Mudrinich is speaking of, its called the Supervisors Guide to Progressive Action, to Progressive, Corrective and Disciplinary Action. which weve (unin) before. this evidence do we? Okay,

We dont have any copies of

Because I dont see any, if we do

theres no need to resubmit but if dont MS. FULTON: all so (unin). MR. YATES: THE COURT: MR. YATES: THE COURT: Do you, Mr. Reece? I dont believe so, Mr. Yates. Okay. But its up to you. I can take I dont have a copy of it at

administrative notice or if you have copies or I make a part of the file. MR. YATES: THE COURT: Yeah, I have copies to provide. If that, if you want to make an

exhibit then give it to me and Ill mark it. MR. YATES: THE COURT: Okay. And Ill ask Ms. Fulton if she

has any objection to its admission but give, let her 15 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

have a copy. MR. YATES: this one. (unin). THE COURT: MR. YATES: sided. isnt? Im not sure. Okay. THE COURT: MR. YATES: Okay. THE COURT: Well, the copy you gave me, Mr. (unin), I copied (Unin). Some of them, may be. Okay, Ill mark this as I believe those are doubled They may or may not be. Yours Mr. Mudrinich. Yes, let me have

Yates, Im going to mark as Grievants Exhibit number 1 of day 2. (Grievants Exhibit number 1 marked for identification) Q. Would you please turn to page 4, and its

labeled section B, progressive corrective and disciplinary action. That chart that appears in the

middle of the page, is that what you are referring to? A. Q. follow? A. Q. Yes. Okay and you believe that is a policy of the Yes. As the different levels of what you would

Department of Personnel? 16 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

A. Q.

Yes. You do, okay. Like, it, it was somebodys

first offense, what would you do in that (unin). A. Q. It depends on what the offense was. Lets say its the same offense that were,

were discussing here. A. Q. Which is? Testifying under oath as to three signed Actually, let me

payment plans, when it didnt exist. back that up.

Saying plans but accusing the person of

saying that they were signed, which they were not, and the person did not say that. A. Well, its my opinion that you do not have a

payment plan unless it is signed. Q. A. Okay. So the semantic of signed, unsigned would be You either have a payment

irrelevant in my discussion. plan or you dont.

The only way to have a payment plan

is to have an item signed. Q. Okay. Thats not always the case. They

cant always (unin) in the GenTax so what would you suggest at that point? A. Q. I dont understand the question. GenTax has an upper limit of 180 months. 17 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

A. Q.

Okay. Okay, lets say it, the agreed upon payment What, what would

is, would put them, say 360 months.

you do at that point if GenTax cannot handle that request? A. Well, if it was a, I would get a signature on

a payment plan for 360 months if that was the, what the agreement was going to be. Q. Okay. Is there any way, if we just want to

add that (unin) manually, is there any way to give an (unin) schedule that (unin) like GenTax was? A. Q. I have no idea. Okay. Because my concern with that is,

thats fine and youre getting them to sign an agreement. Their balance due is say $100,000.00 and

youve agreed them to make a $1,000.00 payment, okay? Which, you know, GenTax will forecast it into the future for 180 months, with, you know, what interest will accrue, what penalty will accrue, and provide an (unin) schedule that says the first payment, this and this much is going to go to this, this much is going to go to this. When we get the, when that payment would

be agreed to, you really dont know how many months thats going to go. Theres no way to really forecast 18 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

that so you, so you might say, just, you know $100,000.00 divided by 1,000 payments. payment, thats 100 payments. $1,000.00

But it would actually be Youre signing We cant

more than that because of the (unin).

(unin), youre making it a legal document. expect the person to pay more than that.

I mean if we

say theyre going to pay this much and this is the balance do, which GenTax was forecasting the future, we cant do that. A. And I

Are you talking about, the agreement would be

if its $100,000.00 debt, payments of 1,000 a month until paid in full? Q. Is that what were The agreement

It usually doesnt say that.

shows, you know you owe $100,000.00, you have payments, if gives the allusion that after theyve made the 100 payments theyre done, thats not true. Okay, if it is

signed and it says $100,000.00, lets do it for today. Taxpayer owes $100,000.00 today and youve agreed to $1,000.00 a month. $100,000.00. A. Q. Hum? For x number of months. And thats The payment plans says its

approximate, thats not set because were not sure. Can we increase the amount later at the end saying well 19 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

interest and penalty accrued, you owe more money? A. Well it depends on all the terms and

conditions of the payment. Q. Okay. Following the payment plan policy,

according to the policy a revenue agent can only countersign a payment plan of 12 months or less. If in

that, lets say it is put in GenTax and its 13 months, the supervisor is supposed to countersign that. Why

would somebody be accused of doing something they cant create? A. Q. I dont know. Again, be it its against policy to create

such, such a (Unin). THE COURT: Im going to go off the record,

Mr. Yates, you let me know when youre ready. RECORD PAUSED: THE COURT: Okay, Mr. Yates, were back on

the record, please ask your question. Q. If we do a manual payment agreement and we

say were going to tack on extra interest and penalties, would he have to sign that in addition to the original agreement? Like, lets say we get in, to

the end of it, hes made is 100 payments of $1,000.00. According to your GenTax (unin) calculate (unin). Do 20 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

we have, you know, he filed the obligation originally, you know can we (unin) him to make the rest of it? A. agreement. Q. I mean what if it wasnt in the terms and The taxpayer is (Unin). You It depends upon the terms of the signed

theres no set schedule.

know, they really dont know their true amount of debt that they have other than what it is at that point in time. If youre going to borrow a car, borrow a house,

youre given a, you know an organization schedule in, in, you know, (unin) so each person knows exactly how much theyre going to pay. sense am I? A. No, other than, I mean, it depends on the If youre talking about the Im not, Im not making

terms of your agreement.

fact of interest and things such as that are accruing, which is what (unin) paying a debt over time, its going to be more than the original amount. Or

interstate interest rate, subject to change every six months. So you can never be certain on anything beyond

something (unin) within the January to July period. Q. But you couldnt do a payment plan in general

because we, we instigate a payment plan now, based upon what it is, GenTax forecast it into the future as to 21 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

whats been paid, taxpayer (unin), say the interest rate changes or doubles, you cant, how, you couldnt hold the taxpayer to that, could we? A. It depends on the terms and conditions of the If it says a statutory interest,

payment plan.

applicable interest, yes you could. Q. Okay. Even if the taxpayer was given (unin)

organization that says today you owe this making it over the, you know x number of months youre going to owe this amount at the end so therefore you will pay 150,000. And say you get to the end of that and he

still owes another 10 but hes (unin) his agreement. What, what then? I mean the actual agreement said

youre going to pay this much, this many months, and he does, period. And hes fulfilled that agreement but he

has, say the interest changes and it goes up. A. Likely owe the additional money or he, even

(Unin) he thought he had a solid agreement where he was only obligated that (unin) month, he could go to court, I guess. Challenge that he owes the additional 10,000. MS. FULTON: of questioning. Im going to object to this line

Were getting pretty far afield of

anything that is relevant to what happened at the hearing and these hypotheticals (unin). 22 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

MR. YATES:

(Unin) relevant due the fact

Im accused of saying something. THE COURT: Well, I think what shes saying

is, well her object is that all these hypotheticals on GenTax, and you know, payment plans, how is it relevant to, Ive taken there was a representation made in front of an administrative law judge that there were signed, or unsigned payment plans and they didnt exist. know, thats her objection. objection. You

Im going to sustain the

Please try to ask this witness questions

that are relevant to--You know, were here about a written reprimand, correct, that you received. But you

were exonerated on one of those at level, at Level I. The main thrust of what I saw in the level I decision was, as you indicate the charge of false swearing or perjury under oath. decision. MR. YATES: for a moment? THE COURT: RECORD PAUSED THE COURT: after a brief recess. Q. Okay, were back on the record Go right ahead Mr. Yates. Lets go off the record. Can I go off the record again, Im just summarizing the level I

Youre saying that the only payment agreement 23 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

is the (unin) payment agreement? A. Q. That is correct. That is correct, okay. In this (unin)

agreement sheet (unin) the Divisions payment plan policy (unin). You should have a copy of all that. Okay, Ill go ahead and give you

MR. YATES: my copy.

I know I have extras somewhere but, I think

everybody has a copy of it. Q. read that? A. The following guidelines are to be used in The part that is starred, could you please

all cases and uniformly by all offices and units of the Division relative to payment agreement. Q. Okay. Does that say that theres wiggle room

to their guidelines, this is what you should do but is not always what you can do? A. Q. I dont know the answer to that. Dont know the answer to that. Did you help

write that policy or did legal have any input on the policy? A. I have reviewed the policy various times over

the years, theres been a policy around for a long time. I dont know if it originated (unin). Q. Okay. Okay, Im, Im done with payment 24 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

plans.

Lets go on to offers and compromise, of which

youre familiar with, you signed them on behalf of the legal department to make sure all Is are dotted Ts are crossed, correct? A. Q. Correct. Has it always been the only person that

really has to sign it is the tax commissioner, he has to final approval on it or is anybodys signature important? A. The Tax Commissioner, if the Tax Commissioner

signs something he trumps the need of anybody else besides, as far as Im concerned all the authority is delegated down from him or her. Q. Okay. Would you sign something you didnt

agree with?

Lets say theres an offer and compromise

and you didnt agree with it, would you sign it? A. I cant answer that. MS. FULTON: MR. YATES: Objection to relevance. The relevance is, my name has

been signed to the document and Im asking if, if he didnt agree to something (unin). A. (Unin) attorney and I represent my client.

So whether or not I agree with something is generally irrelevant in the line of work that I do. 25 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q.

(unin). THE COURT: (Unin). Let me address the

objection. objection.

The witness pretty well took care of the Im still having a little bit of trouble

understanding why were talking about offer and compromise. It wasnt part of your reprimand was it? It was not part of the reprimand

MR. YATES:

but it is in the same timeline as would go to the harassment defense. THE COURT: MR. YATES: THE COURT: Okay, well Of the original claim. Okay I, yeah I do recall that at Go ahead and ask

Level, at the last Level III hearing. your questions Mr. yates. MR. YATES: Q. A. Q. signature? A. Q. A. Q. The legal definition? Yes. I dont know that off hand. Okay.

How long have you been an attorney? Since 1985. 1985. What is the legal definition of a

I have some information here from Black Law (Unin). If you would turn to the, (unin), 26 Transcription Services provided by: Globespan Transcription

Dictionary.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

correct? A. Q. Thats correct. Okay, if you would turn to the, I believe

(unin) page (unin) at the bottom where it says (unin) signature. A. Could you please read that? Unauthorized signature, a signature made It

without actual implied or apparent authority. includes forgery, UTC section 1-201D41. Q.

Okay, and right above that where it says

signature, would you read the first part please? A. A persons name or mark written by that

person or at thats persons direction. Q. Okay. It doesnt say anything about it being

printed in long hand or anything like that, its the persons mark, correct? A. Q. Correct. Correct.

Mr. Coutz has assigned my name to three of Did he consult with you or anyone

those (unin) offers.

else in the legal department of whether or not he is allowed to do that, he has the authority to apply somebody elses name A. Q A. No. to a document? Mr. Coutz never consulted with me on such 27 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

(unin). Q. A. Okay. If he had, what would you say?

Ill need you to give me the question a I listened to your previous

little bit more specific.

question about whether he consulted with me, now Ill need Q. Okay, I understand. Im trying to think of a If he

way to word it, the way I would like to word it.

had consulted with you and told you that he was going to affix an agents name to a document where it is implied that that is a signature line where everybody (unin) the signature line, what would your response be? A. Q. I would need to see the document. Okay. MR. YATES: It might have already been

entered into the record, as what the documents are. Ill give you another one. I believe we all submitted Do yall

this into the record (unin) Swinler (unin). have a copy of that? THE COURT: I believe so.

In the meantime,

Mr. Yates, you want this definition marked as an exhibit? MR. YATES: THE COURT: Yes, absolutely, please. Ill mark this as Grievants 28 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

number 2.

Im going to mark it on the page at 1,150

because the front is black, no pun intended, as Grievants number 2 at day 2. (Grievants Exhibit number 2 marked for identification) Go ahead Mr. Yates. Q. Okay, in the section, do you see where Janet

Swinlers name is affixed, correct? A. Q. Yes, mm-hmm. (Unin) above that that reads recommendations,

would you please read that? A. Recommendations. MS. FULTON: MR. YATES: copy? MS. FULTON: MR. YATES: A. No, Ive got it. Youve got it? (unin). Im sorry. Do you want an extra

Recommendation, we recommend acceptance of We have examined the offer and compromise

this offer.

and the financial statement and we believe them to be complete and correct. The taxpayer has filed all tax

returns, the offer correctly states the tax liability, we are of the opinion that the state cannot collect from the taxpayers assets or income in the amount 29 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

greater than the offer

in the foreseeable future based

on the compromise analysis on page 2 of this memorandum. Q. Okay, and from reading that, does it not give

the implication that Janet agreed to that and she recommended this offer? A. (unin). Q. So a general, generally in, on, in principle That certainly appears to be a signature line

the average person that would be reading this that has no idea who Ms. Swinler is, would interpret that as a signature? A. Q. A. Thats how I would interpret that. (unin)? (Unin). MS. FULTON: that? Im sorry, can I have a copy of

It turns out I dont have a copy. MR. YATES: Q. Sure, absolutely. (Unin). Okay.

Is there any indication that that is not

Janet Swinlers signature, if you were not familiar with her? A. Q. A. No. Theres no indication to the contrary.

Is that a forgery? I dont know Janets signature (unin). 30 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q.

But if you didnt know it and this was

presented in front of you, youre, youre saying that you would interpret that as her signature? A. Q. Yep. Okay, now if it is not her signature, would Would it not, (Unin) falsifying a

it not be a forgery? record? THE COURT:

Well thats a different kettle of You have to know the

fish all together Mr. Yates.

elements of forgery and I dont know whether this witness knows the elements of forgery, I dont right off the top of my had but there are clearly defined and codified elements andMR. YATES: Okay. I have here some more

information regarding signatures and such that has, theres also a Black Law Dictionary (unin), its from the online version. please. THE COURT: Fulton? MR. YATES: Q. Yes, Sir. Do you have a copy for Ms. Id like to have that entered in

Okay, lets just go ahead and start with the

very first page where it says definition of signature, would you please read that? 31 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

A.

Ecclesiastical law, the name of a sort of, a

script without seal containing the (unin), the signature of the Pope or his delegate and the grant of a pardon whos contract the act of writings one name on deed, no contract, or other instrument, either to identify or to authenticate it or to give it validity as ones own act. signature. Q. Okay, is that pretty much very similar to the The name so written is also called a

definition you read earlier? A. Its a lot more words. MS. FULTON: Objection the, the, what some

definition in ecclesiastical law is completely irrelevant. MR. YATES: MS. FULTON: MR. YATES: THE COURT: Mr. Yates. How is it irrelevant? Were not in (unin). A signature is still a signature. Well, youre trying my patience

I understand, we talked about this on day

one that these documents, the offers and compromise, your name or another agents name was affixed to it or signed to it. I mean I know that already. Whether And I dont

its forgery or not, I dont really care. see it as forgery.

And you know you need to focus on, 32

Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

whats your point.

I dont understand what the

relevance is of this exercise and what it is meant to be defined as a signature. the point. Whats the point? Get to

I mean I think they would stipulate that

these offers and compromise were in fact signed by Coutz and sent to the main office in Charleston for approval. MS. FULTON: We would, and that they were

approved by either the assistant state tax (unin). THE COURT: Im going to give this back to

you, Mr. Yates, Im not marking it as an exhibit. MR. YATES: question. THE COURT: And thats an agreed upon fact, Im sorry that Im, Okay, Ill just have one more

Mr. Yates, thats what Im saying.

my patience are thin today but Ms. Fulton indicated that she stipulates to that. okay? Its not in dispute, You need to move it

You, you won that point.

towards whatever youre, you know your charge is and you said harassment, okay? MR. YATES: witness. (Unin). THE COURT: Ms. Fulton, did you have any Okay. Okay, Im done with the

questions for this witness this morning? 33 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q.

MS. FULTON: THE COURT:

Yes. Mr. Mudrinich.

CROSS EXAMINATION Were you the person who decided, made the

decision to drop the revocation proceedings, the business license revocation proceedings against the taxpayer in this matter? A. Q. A. Yes. Why did you decide to drop the proceedings? Because I believed that there was a, I wont

say a lying under oath because I, I wont go that far, but there was some representation that there was a payment, (unin) payment plan and it turns out there were not. Q. And why did the fact that this testimony was

made cause you to drop the proceeding? A. Credibility issues in front of the

Administrative Tribunal. Q. Mr. Yates earlier showed you the progressive

disciplinary (unin) section of the supervisors guide. Do you, considering the facts and circumstances of this case and what happened at the revocation hearing, did you consider the, would you consider the reprimand that was issued under these circumstances to be appropriate 34 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

or not? A. Q. A. Appropriate. And why is that? There was a representation made under oath There were not payment

that there were payment plans. plans.

To me thats a, thats serious because its

under oath at a hearing. MS. FULTON: THE COURT: I have no further questions. Okay, Mr. Yates, any more

question for this witness? MR. YATES: THE COURT: MR. YATES: THE COURT: I need a moment please. Okay, lets go off the record. Yes. Let me do some housekeeping while

youre--you moved the admission of Grievants Exhibit 1 and 2. Fulton? MS. FULTON: dictionary and THE COURT: (unin). MS. FULTON: THE COURT: No I dont (Unin). Okay, youre, youre exhibits are Im going to, and the supervisor I have no, that was the law Is there any objection to their admission Ms.

admitted without objection. 35 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Mr. Yates? Mudrinich. Q.

(Grievants Exhibits 1 and 2 admitted into evidence) THE COURT: any questions. MR. YATES: I just have one question. Go ahead, Mr. Yates if you have

REDIRECT EXAMINATION If there were no signed payment plans, why

did Mr. Coutz or Mr. Oakes, three years consecutively have forged letters (unin) the (unin)? A. Oakes. THE COURT: MR. YATES: THE COURT: Any more questions sir? No. Okay. Alright, Thank you Mr. I do not know. Im not Mr. Coutz or Mr.

MR. MUDRINICH: THE COURT: you carpooled. MR. MUDRINICH: THE COURT:

Thank you.

As far as Im concerned, unless

I carpooled but. Thank you sir.

Yeah.

MR. MUDRINICH: THE COURT:

Youre welcome. Whats next,

Nice to meet you.

MR. YATES:

Ms. Swinler please. 36

Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. Yates.

THE COURT:

Okay, Ms. Swinler, you can You dont have to,

testify right here from your chair.

well unless you want to move down a little bit just for the sake of comfort, however you feel more comfortable is fine with me. And (Unin). Yeah, that would be a little Alright, Ms. Swinler, you have

MS. SWINLER: THE COURT: awkward, wouldnt it.

been called as a witness on behalf of Mr. Yates to testify but before you do so would you please raise your right hand. Ill swear you in. (Witness sworn) THE COURT: Thank you. Go right ahead, Mr.

MR. YATES:

Okay. DIRECT TESTIMONY

About the payment plans, you have been a

revenue agent since A. Q. 1998. 1998, was there, previous to GenTax how were

payment plants handled? A. Mostly in, at North Central Regional Office,

thats the only place I can talk about, we did payment plans when we could. We, our objective was to collect 37 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

as much delinquent tax as we could.

Sometimes we did

it on payment plans, sometimes we did it on, just the taxpayer would send that payment. We would enter them,

there was a monthly report that we gave out and the monthly report would have all of the taxpayer information and then there was a little box over at the side and we had to click whether it was, the payment was in full or if it was a payment plan and we would put a PP. Q. Okay. How did you keep track of that

information? A. A lot of my information was kept on records,

handwritten records. Q. A. Handwritten records. Where we would write it. We would have a log

on the front of the, of the case file and we would put down what day we talked to the taxpayer, or, now this, we had to keep these to a certain minimum. We could

put the, put a comment in (unin) but there wasnt a whole lot of room there so we took a lot of manual handwritten notes. Q. A. Q. Handwritten notes? Yes. Did, if the payment crossed your desk youd 38 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

log it into a program called Accounts Maintenance, correct? A. Q. A. Yes. And then you would mark Not at first. Not in 1998. Im, at first,

as I said, we did them by hand.

And then a woman by

the name of Kim Houston created software where we could then do it on the computer. Q. Okay. At that time were all the payment

plans signed? A. Q. No. No. They would just send in a thousand

dollars a month, you would mark it as a payment plan because they were making a payment, whether A. We, thats what we did. We marked it as a

payment because consistently, if they month, after month, after month sent in a payment plan, I accepted it, I put it in the computer, I diminished their liability by that, that amount of debt. what else to call it. and its what we did. Q. Okay and when Kim Houston created the program I didnt know

It looked like a payment plan

Accounts Maintenance, what then? A. It was the same thing. Wed put it in as a 39 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

payment plan.

I, there was, when she, when she did the

software, and incidentally in GenTax and even when it was over to, we now do it online. there for a partial payment. There is no place

It, when were talking

about payments were talking about payment plans. Thats how they go into the brand new software that we use for, to, that replaced the old Accounts Maintenance. Q. A. Q. A. When did it replace the old system? Oh gee, I dont know for sure. Fairly recently Wait a minute, are you talking about the most

recent one? Q. A. Q. A. Yeah, the one thats web based, the new one. Oh, the web based, a month (unin). (Unin). Well, I dont know. MS. FULTON: Objection. I have no, this is Were talking

not relevant, what the history was.

about a policy that was in effect at the time that this hearing took place, not the history of everything (unin). MR. YATES: in a moment. 40 Transcription Services provided by: Globespan Transcription It will be relevant, I believe,

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. objection.

THE COURT:

Okay, Ill overrule the

MR. YATES: THE COURT: the relevancy. Q.

Okay. Go ahead and demonstrate to us

Okay, what I have here is actually a print

out from the Accounts Maintenance system that was in effect when the taxpayer in questions revocation hearing, you know, during his tenure. THE COURT: MR. YATES: Thank you (unin). I can (unin). (Unin).

If you would look at the very top left hand

corner thats highlighted in pink. A. Q. A. Q. A. Q. A. Q. A. Q. A. Mm-hmm. Would you please read that? Payment plan information. And then right below it, it says? It says formal and you can say no or yes. And hat one is marked? Yes. And its marked as informal? Informal, Im sorry. And what does that mean? That means to me that theres no paper 41 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

anyplace that, that this taxpayer signed that says that he was going to pay, make these payments. Q. Okay. Going down to the lines on the right

hand side of that, the ones that are highlighted in pink, what do those say? A. Payment plan, payment plan, payment plan. On

the next page, payment plan, payment plan, payment plan, payment plan (unin). Q. A. Q. A. Okay, and what is in yellow? Delinquent current. Whats delinquent current mean? That means that they are delinquent on that

particular account but theyre paying, theyre paying their currents along with it. At that time, the

biggest rule we had was that you could not have a payment plan unless you were current. pay old taxes with current money. Q. those say? A. Q. A. Q. Okay and then the ones in green, what do Next page I believe. Bad check. They all say bad check? Bad check, bad check, bad check, bad check. Okay. If a taxpayer is on formal, informal You could not

payment agreements and they write a bad check what, 42 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

what happens?

Or they dont make their current

payments due on their current return? A. What is supposed to happen, according to the

guidelines, is that what you, is that how you want me to answer? Q. A. Yes. Theyre supposed to be immediately removed

from the payment plan. Q. A. But does that always happen? No it doesnt. The first thing we do is the

the, try to get them to make up that bad check very quickly and we go see them, we do whatever we can. We

alert them immediately there is a bad check, we tell them what, whats in jeopardy, what can happen to them if they dont get it, and I personally usually give them a timeframe. Most of mine go within 10 days. I

would rather say tomorrow but Im supposed to give them a little time to do this. Q. Okay. The policy, theres no argument there. Thats not

A payment plan is a signed payment plan. always taught though, is it? A. (unin).

Were talking about GenTax again. Everybody within

When it came out it was not possible.

the sound of our voice was working on it, including Mr. 43 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Oakes was working as hard as they could to get that settled, to get that taken care of. There was one time

I remember he even mentioned to me that possibly we should have another computer sitting there so we could use that computer to do payment plans so we werent tying up a computer that we had to do our regular work on and there (unin). They were a nightmare. It

wasnt, we knew we had to have them, we knew we wanted them signed. We did everything we possibly could, but

was it always possible, honest, Judge, Id be lying under oath if I said yes. It was not always possible.

And nobody ever said to me, Janet, theres not a signed payment plan so you cant take that mans money. Every

month, every month my report went in it said payment plan, payment plan, payment plan, and anyone that picked, opened up GenTax could tell whether or not that was singed. As a matter of fact, if Mr. Coutz or Mr.

Oakes would call and ask me about a taxpayer and I would say hes made payments for the last two or three months, both of them would say to me, is that payment plan signed? Q. A. And your answer would be? The truth, whether it was or it wasnt. But

nobody ever said to me, Janet stop taking that money. 44 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

We took it and we applied it and I dont know, if it looks like a payment, it acts like a payment plan, I dont know how you can say that the only payment plans we have are signed. I dont understand that legally.

Theres a legal place there that I dont understand. Q. In your experience did some of the taxpayers

that (unin) send you that thousand dollars a month, every month, every month, every month A. Q A> reasons. (Unin). just dont want to sign it? For a lot of reasons. I get a lot of

They, they dont, they dont want to get to

be, if something happens to them they dont, they dont want their children to have to pay it. Somehow or I

another theyve got the idea that it goes away.

explained to it, it absolutely does not, theres always (unin). They have a plethora of reasons as to why they And

dont do this. Q. A.

But yet they still send in the money? Oh absolutely. They send in the money and I

continue to accept it, I continue to apply it to their, to their account. Q. Okay. And if you would ask that taxpayer

they would say there were on a payment plan or not? 45 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

A.

I believe if you read the transcript of the

revocation hearing, that taxpayer said, Im on a payment plan. He believed that he was. He ended, and

Judge Piper--And I agree with the fact that Judge Piper said to him, wait a minute, we dont need to talk about this. MS. FULTON: for (unin). THE COURT: No, I want to hear, Im going to I want to hear it. Go ahead. Objection, this is not relevant

overrule the objection. A.

Okay, Judge, I agree with him, he became

alarmed when the taxpayer continued to say, I tried to settle it. to talk. I tried to give them a lump sum. I wanted

I went to, I went to, speaking of, I dont

know whether he called Hudson by name but he called the supervisor, Kim, I went to her office, I tried to settle it. Im at a loss as to why someone didnt say,

lets stop right now and give this man an offer and compromise. happen. Im at a loss as to why that didnt

The Judge became alarmed because here he is, The man says

hes going to revoke this mans license.

he was on a payment plan, we dont have a payment plan. The, the, the computer, if you look at the computer you can see where the man was given $13,000.00. What was 46 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

that for?

He was making up a payment plan.

And each,

each of the three years that he was awarded the offer and compromise, different people did that. Q. A. A letter of good standing, correct? Yes. He had to have, he had to make up the

payments to get a letter of good standing because he wanted a liquor license. Now, thats what he did.

Each year, we told him, you make up your thousand dollars a month and well give it to you. You give us

the unsigned, or the returns that we need, well give it to you. And we did. And somebody had to okay that The supervisor

conditional letter of good standing.

couldnt do it and Hudson couldnt do it and the other revenue agent who, who, who affixed her name onto that and did it, they could not find that. through Division. That had to go

It had to be either Michael Coutz or Somebody, for three years

Mr. Oakes, one of the two.

agreed, somebody in Division agreed that this man was on a payment plan. THE COURT: They they couldnt, the Grievant That was what the

couldnt produce the payment plan. Judges concern was.

Well, the Judge asked for the

payment plan, didnt he? A. If you read that very carefully 47 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 asking. A.

THE COURT:

I havent.

Thats why Im

Okay, if you read that very carefully, the

Judge gets alarmed because the, the taxpayer is insistent that hes on a payment plan. Theyre saying

hes not and he, and they swore, they swear in the text here and hes insistent that he was on a payment plan. I mean he doesnt know. pay lump sum. deal. But he kept saying, I want to

I want to, I want someone to give me a

I want to have, he kept saying interesting He went on with that and if I

instead of interest.

were the judge I would have been, I would have been alarmed too. I would have immediately said, wait a One of the, one of the

minute, we have to stop.

things, of the revocation, the (unin) the things that they handed out to us Q. A. (Unin). (unin) enough about a revocation hearing.

Number 2 says definitely that the supervisor, and when Hudson or anybody, when a revenue agent puts forth a name for a revocation hearing, then the supervisor and someone in Division, that here again, we only have two people in Division and that is Mr. Coutz and Mr. Oakes. They have to look at that and they have to approve that 48 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

to go on to revocation.

They have to look at the case.

They have to, if there was signed payment plans, first it should have been stopped at that (unin). understand that. I dont

Everybody that looks at the computer Its,

knows whether a payment plan is signed or not. we dont, its not a secret. secret. We dont keep it a

It says right on the left side of the computer

whether or not theres a signed THE COURT: A. Okay.

payment plan. THE COURT: I understand. Thank you. Im

going to mark, do you want this marked as your Grievants Exhibit number 3 MR. YATES: Yes, absolutely.

(Grievants Exhibit number 3 marked for identification) THE COURT: Alright, did you have more

questions for Ms. Swinler? MR. YATES: THE COURT: I do. Do you have any objection, Ms.

Fulton, to the admission of Grievants number 3? MS. FULTON: THE COURT: No. Its admitted.

(Grievants Exhibit number 3 admitted 49 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. right? A. Q. handbook? A. Yes.

into evidence) Youve been with Tax (unin) since 1998,

At any time have you been giving an employee

Im sure I have.

I, but I cant produce it,

if thats what youre asking. Q. A. Okay. I cant produce it but Im sure I have,

probably when we were down in Charleston when we went for indoctrination or whatever it was, we had our pictures taken and everything. At that point, thats

probably when I was given that handbook. Q. handbook? THE COURT: MS. FULTON: THE COURT: MR. YATES: THE COURT: She probably doesnt know that. Objection. It calls for speculation. Okay. She just, she, let the record Okay. Do you recall me ever receiving a

reflect she just raised her hand to answer that she doesnt know. Lets move on to, ask, you know ask

relative questions Mr. Yates. 50 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

MR. YATES: THE COURT:

Okay. I mean whats, whats your point

with the employee handbook? MR. YATES: I made a claim that Mr. Coutz is

treating me differently and this is, this reprimand is a manifestation of that. Q. Did, after Bill (unin) left and you became

the acting supervisor, how did Michael Coutz change towards me? It was, there was always tension but it

became more intense, is that correct? A. It changed to the point that when Mr. Coutz

was at North Central Regional Office and you were there, I mostly had you come in my office and work with me. Mostly, I had you to stay close to me so I could

keep you busy, so you wouldnt fall under a critical eye, overly critical eye. Q. Okay. So there was a, so, wow. Did he ever

spend time with other agents, you know just talking, (unin) whether its baseball, whatever? A. Youre talking about the period after, the

15th of June, is that about when it was? Q. A. Yes. Thats when Mr. Coutz was sent to North Yes he did. He spent 51 Transcription Services provided by: Globespan Transcription

Central and he came every day.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

most of his time in, into the office of the other two agents. Q. But he never made no attempt to speak to me

other than maybe hello, good morning or very brief? A. Q. A. Q. I wasnt around all the time so I dont know. Okay. I cant answer that. Do you recall a time that Mr. Coutz, Connie,

James, and I used to go to lunch together? A. Q. Yes (unin). And it was just nearly every day that I was

there, correct? A. Q. Yes. And you recall that it abruptly stopped but

they continued to go to lunch together? A. Q. My attention was called to that, yes. Yeah. Okay. What are some of the things Like, did he ever

that you observed that he would do?

say anything to you about me, ask questions, make fun of things? You know, maybe the way I talk, some of the

words Ive chosen, a shirt that I would wear? A. Mr. Coutz used to laugh because people that,

people the Elkins (unin) would many times mistake your voice to be that of a woman and he, he thought that was 52 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

very funny and he liked repeating that, that, that you, he got many calls about people mistaking you for a woman. Q. A. Q. funny. A. (Unin). THE COURT: A. Im sorry, I couldnt hear you. He came in to my, And he found that humorous? Very. Very. Did he ask, because he thought I was

Let me answer, yes he did.

to my desk and he said to me, (unin) in there and, and were about the dressing and everything because there was, there was the jokes about Roger never ironing his clothes and he looked awfully sloppy and then he mentioned you and he said, Janet do you think hes funny? THE COURT: Youll have to let the record

reflect that youre moving your hand back and forth and shaking it. A. Yes. Do you think hes funny? Because that wont be picked up

THE COURT:

on the recording so, how does that describe why you are gesturing? A. I dont remember my exact words but there 53 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

were, they were something, they went something like that. Thats none of my business. I dont care. It And That

makes no difference to the way he does his job. means nothing to me. Hudson is a good employee.

he said, no Im just asking, do you think it--and I said, the only way I could ever know is if I was there. And if Im there, what does that make me. (unin). Q. The, several of events that Ive talked I didnt, I,

about, about the different treatment and suck like that. Did you ever bring that to the attention of

anybody? A. of you? Q. Right, the way he acted toward me, did you Did you Are you talking about the different treatment

bring that to anybody elses attention? A. Yes. Yes I did.

After, after I moved, I

went to Morgan Town there was so many accusations, there was so many, there was so much horrible things being said and everything going on, I wrote a very long letter to Jeff Oakes and I, in that letter I explained to him what had happened at North Central. I explained

to him trying very hard and I told him in that letter, I believe in at least three or four places you were 54 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

treated differently.

Now I, I sent that letter to Mr. But I

Oakes, its his letter, its no longer mine. did.

I made it very plain to him that the treatment Its very strange to me that all of

was not equal.

this comes up about a revocation hearing when one of the other agents up there really did the egregious thing about a revocation hearing and I had to step in and stop the whole thing and he was never reprimanded, never said anything, never anything, beyond me. Q. Did you receive any response to that letter

that you had sent to Jeff? A. No, I didnt invite a response. I, it was

just, I just said this, I dont know, I think I said something goofy like Im tired of living on the dark side, I want to go on and, you know, I dont want to live Q. A. Q. Okay. back in that, anymore. When Mr. Coutz signed your name to that offer

and compromise, what was your reaction? A. Well, I became furious and I, I immediately

sent out an email and I wanted to know, you know, because he knew. I didnt. When I saw it, of course I

already knew about you, but when I saw my name on it I 55 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

thought, okay here we go, not my name. for that.

I wont stand

So I sent Mr. Coutz an email and I asked

him, I said something like, if you know, will you please tell me who put my name on, on this particular offering compromise. And true to form, Mr. Coutz does He called me and he said,

not put anything in writing. I did.

And I said to him, you knew I was available for There was no reason

signature, why did you do that? for this. available.

And he said yes he did know that I was And I, I dont remember, and he said Janet

please dont, but please dont be angry and I said how can I trust someone who puts my signature on something when they know Im available to do it myself. I trust you? How can

And he said something and I said I got a

taxpayer coming in, Im in an office by myself, I said Ive got to go. So I thought about it and I so I, when

I, when I sent the email I to him I copied Mr. Oakes, I copied Mark Morton who is, I think hes the deputy attorney for the taxpayer or some deputy or counsel for the, for the Craig Griffith who is the Tax Commissioner. And I copied Jan Mudrinich, I copied I think I sent it to four

Wagoner, I think thats it. people, Im not sure. Q.

(unin) you look through there, I think your 56 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

information is in there too (unin). A. Q. A. Oh, okay. (unin). Alrighty, I (unin) thats who, those are the And I asked them if Mr.

ones I believe I sent it to.

Coutz had the legal right to put my signature on a piece of paper. I wanted to know. I think I said to,

I dont know whatever I said, (Unin), I dont recall exactly. And then I started thinking about it. Mr.

Coutz told me that that really wasnt a signature because he printed it. He said that really wasnt

signature line because it didnt say signature down there. He told me it didnt make any difference

whether he did or not, that the only true, the only signature that was needed was that of the Tax Commissioner or his representative. I then started

doing a little more digging, I had been heard that and I believe I actually testified to that, that I had been told over and over again. That was in the first

hearing, that I had, that I had been told that it didnt make any difference. But, and I started looking

into it and I realized that everything, every other signature on this falls, all of this stuff here is done by a tax, what do they call us, tax 57 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q. A.

Tax (unin) employee, I believe. Tax Division employee. They do all of it.

I, I understood that I knew more about this taxpayer and his, his financials, I knew about it more than anybody else so its only makes, it only makes sense that every other signature after that is using my work. When they read this, they read what Ive done. Now,

there is always the possibility that I, Im asked to do an offer and compromise, a taxpayer ask me to do one, Im going to do it. But if I dont believe that And probably,

taxpayer deserves it, I dont sign it.

on the page over there, right here, Im going to write them a, a note as to why I do not believe they, they deserve it. If they go ahead and sign it, its no I dont have to.

problem with me, I dont have to. Im saying no.

This taxpayer does not disserve this.

He has too much money or I will give, as I said I will give my reasons over here as to why, and I was outraged. So I sent a, I sent an email to Mr. Morton

and again Mr. Morton and Mr. Mudrinich and Mr. Wagoner and why do I feel like Im leaving somebody out. But

anyway, I sent this all to them, (unin), when I wrote it, when I wrote the, I sent them a letter, Im sorry, not an email, and I sent a certified copy because I 58 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

want someone to tell me this answer. sign my signature I want to know it. THE COURT: A. No. THE COURT: A. Okay. (unin).

If someone can

Did you get an answer?

No one answered me.

And I said very simply,

I will go on until, if I have to speak to ever legal division in the state of West Virginia, I will find that answer. THE COURT: A. today. Alright, do you have

(Unin) did get an answer from Mr. Mudrinich He said (unin). THE COURT: Im sorry, Sir.

Its alright.

A.

Let me just qualify my answer. THE COURT: I just

A.

Here I got the answer. THE COURT: I was just cutting to the chase,

thats all. Q.

Go ahead, Mr. Yates.

On that same offer of compromise, when you

looked at it more in detail, did you see something that struck you as odd? Like the times, the time, the

timeframe, the dates? A. I have to be very honest with you, Mr., I I dont believe this 59 Transcription Services provided by: Globespan Transcription

have to be very honest with you.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

is the original ones that I sent out. because theres nothing odd about this one. it. Q. You dont find it odd that Jeff singed it Theres nothing odd about

March 9th and everybody else is on the 12th? A. 12th. Q. sure. It is the 12th? Im not seeing it. Im not I believe you will find that it (unin) the

Im a little confused. A. Q. A. Q. A. (Unin). The 12th, the 12th, the 12th. Youre

Im talking about the day. Oh Im sorry. It says March the 9th, 12. Im sorry. Im sorry. I was just looking at

the 12th.

Yes, Mr. Oakes had already signed it before,

before the, before Jan had signed it and before Mike Coutz has put Tonyas name and put my name on it. Jeff

had already approved it so there was no need, there was no need for my name to be on that if they are right that it only takes Mr. Oakes or the Tax Commissioner then, then he had no, there was no need to put my name on it. None, there was no reason for it. And, and I

dont, I never had that happen before. ever, ever. This is brand new.

Never, never,

I think its willful. 60

Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

I think its deceitful that hes doing this. I dont understand why. its not stopped. THE COURT: MR. YATES: Q.

I, I, and

And I dont understand why

Any more questions, Mr. Yates? Yeah, actually.

Again youve talked about payment plan

policies, policy states, does not, were not in argument as to what the policy states. We, theres

contention, (unin) payment plan versus unsigned payment plan, what the policy says, whats actually happening. Are there any other policies that you can think of that we have been given and told to follow that nobody seems to be following? A. Well MS. FULTON: THE COURT: relevant. agencies. MR. YATES: THE COURT: questions, Mr. yates. MR. YATES: THE COURT: Okay. Im done. Okay. Lets try to ask relevant Objection, irrelevant. Yeah, that probably is not very

Im sure the same can be said for most state

Ms. Fulton, do you have any

questions for Ms. Swinler? 61 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 break? Q.

CROSS EXAMINATION Ms. Swinler, do you know anyone else, any

other Tax Department employee who has testified falsely at a hearing and under oath? A. Q. I have no way of knowing that. SO you dont know whether the stuff that Mr.

yates is accused of, whether theres any other employee thats ever been disciplined for a similar action? A. Not that I know, not that I recall. MS. FULTON: THE COURT: for Ms. Swinler? MR. YATES: Can we take a short bathroom Nothing further. Okay. Anything else Mr. Yates (Unin).

THE COURT: okay, its good.

Yeah, well take a break.

I,

Well go off the record. RECORD PAUSED

Okay, were back on the record.

Mr. Yates,

did you want to voice your objection to the, Ms. James testifying telephonically? I seem to recall that you

agreed to it at the last hearing but go head and make your record. MR. YATES: telephonically. I object to her testifying

I agreed to it when the original 62

Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

subpoena but when you reissued the subpoenas and I had to resubmit them, that to me started everything over and it did not specific that she is to testify via telephone. That is my objection. THE COURT: Okay. Well, I probably didnt

reissue the subpoenas, that was probably my mistake because I think we also talked about it being a continuing obligation to appear. But were going to,

Im going to take the testimony of Ms. James over the phone and youre objection is made part of the record, okay, thats preserved for the record. to do to get Ms. James on the phone? UNKNOWN: According to the Grievance Board we a long What do we need

need to call her so that they dont have

distance charge then she will dial us back. THE COURT: UNKNOWN: Okay. (unin) to me and just ask for the

grievance board and theyll (unin). THE COURT: Connie, say something for me like

good morning or good afternoon. Okay, were back on the record and Mr. Yates is, has a continuing objection to Ms. James testifying telephonically. We tried to use the conference room

phone here at the Randolph County Senior Center and the 63 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

volume on it was inadequate so Mr. Oakes was kind enough to use his cell phone and the witness has called back in and has joined us telephonically over a cell phone. Ms. James, my name is Ron Reece, Im the

administrative law judge assigned by the Grievance Board to conduct this hearing and also to author a decision in Mr. Yates grievance. Youve been called to

testify but before you do so Ill need to swear you in. Please raise your right hand. (Witness Sworn) Alright, youve been sworn as a witness, Mr. Yates, go right ahead. DIRECT EXAMINATION Q. Hi Connie, my first question for you is, how

long have you been with the Tax Department? A. 2002. Q. A. Q. A. Q. 2002, in what capacity? Are you referring to what position? Yes. (Unin). Okay and did you go from Tax Payer Service (unin) Tax Department, I started back in

Rep and transfer to Clarksburg as a Revenue agent or did you, or, or did you leave the position? 64 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

A. Q.

(Unin). Excuse me? What did you say? I didnt

understand. A. I worked as a representative 2002 to 2003,

excuse me 2002 through 2005 and then I quit the state for approximately two years and I started working with the state as an agent back in 2007. Q. times? A. Q. I was a restaurant manager. Okay, when you left Taxpayer Services did you Okay, what did you do in the in between

quit, did you get fired, why did you leave? MS. FULTON: THE COURT: MR. YATES: THE COURT: Objection, relevance. Whats the relevance, Mr. Yates? Pattern of history. Alright, go, okay. I will

overrule the objection.

Go ahead, Ms. James, answer

the question, would you please? A. Q. A. Q. I (unin). Okay so you (Unin). So you resigned, there was no event or No

instigation that triggered you to leave? altercation?

65 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

A. money. Q.

(unin).

I left because I made much more

Okay, there was no issue with an IRS agent in

that claim? A. Q. No, I left because I wanted more money. Okay. When you left restaurant management to

come to the Tax Department, why did you leave there? A. Because my mom was passing, she was dying and

I transferred back up to (Unin) to be closer to her. Q. It had nothing to do with an altercation you

had with another restaurant employee? MS. FULTON: irrelevant. A. NO. THE COURT: Well she answered that question Lets Objection, leading and

and shes indicated no, Mr. Yates. MR. YATES: THE COURT: MR. YATES: THE COURT: Q. Okay. Okay. move on. Whatever.

Shes not on trial here.

DO you recall that, when you first

started with, as a revenue agent in Clarksburg, were quite friendly, we would have some private conversations and such like that, correct? 66 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

A. Q.

I wouldnt say private conversations, no. But we, we would talk about stuff more than

work, besides work, I mean? A. We would talk about biking, jogging, things

of that nature, yes. Q. Okay. And we went to lunch together quite

often didnt we? A. I wouldnt say quite often, you were only in

this office a few times. Q. But when I was there, we did go to lunch

together, correct? A. Q. A. Q. We went to the lunchroom, yes. We went to the lunchroom only? Not without other employees, no. Okay bear with us, were having a phone callWere (unin). Okay.

waiting issue.

THE COURT: excuse me.

What, let me interrupt you,

But you worked with Ms. James, could you

just lay a little bit of foundation for me because Im not that familiar with it. period of time? You worked with her for a

Can you just give me Right. Right, were there about

MR. YATES:

the same period of time.

I would come to Clarksburg

and you know we would talk and work together. 67 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. join us? A. Q. A. Q.

THE COURT: years, do you know? Q.

Can you give me the years, the

Ms. James, when, when did you become a

revenue agent? A. I became an agent October of 2007. THE COURT: So about, you know around October When did you

07 to, when did you leave, June of 08? go to Morgan Town? MS. SWINLER: THE COURT: MR. YATES: THE COURT: MR. YATES: 09. 09.

Okay, thats close enough. 08, 09 ish. Thats close enough. That neighborhood.

When we would go to lunch, who else would

Whoever (unin) lunch room. We never went to any restaurants? Not without others, no. Okay, when we would go to restaurants, what

others would join us? A. From my recall, weve gone to lunch together

with others, that was two times and I would say, everyone, everyone in the office if I can remember correctly. 68 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q.

Okay.

Do you recall that I stopped going to

lunch with you, correct? A. Q. A. No. You dont recall that? No, you dont come to this office to go to

lunch with you. Q. I mean during that time period up to about

late 08, middle of 09 when Mr. Coutz was still coming to the North Central Regional Office every day. A. to lunch Q. A. Q. A. Q. And your question is, when did you stop going with me or others? Yes, with you, with others. I cant tell you that, I have no idea. Did I or didnt I, did I not? Im not sure (unin) answer is no. Okay. Did you continue to go to lunch with

Mike Coutz by yourself? A. by myself. Q. You, okay. So its completely coincidence No, Ive never gone to lunch with Mike Coutz

that you and him would leave at the lunch time by yourselves together and return together by yourselves? A. Q. (Unin) the answer is no, thats not so. One moment please. 69 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 forward. Q. Mr. Coutz? A. James?

THE COURT:

Any more questions for Ms.

MR. YATES: THE COURT:

Yeah, give us a moment. Well lets, lets move it

You at no time went to lunch by yourself with

That is correct, 100 percent correct. THE COURT: I think thats been asked and

answered, Mr. Yates. Q. Okay THE COURT: You can argue credibility when

you do your submissions, Mr. Yates, I just want to remind you of that. A. And also, Id like to add, 90 percent of the

time (unin) 2008 to 2009, I didnt even take lunch, I worked through my lunch. THE COURT: Okay, thank you Ms. James. Do

you have any more questions? MR. YATES: THE COURT: NO, no, no more questions. Alright, Ms. Fulton, do you have

any questions for Ms. James? MS. FULTON: THE COURT: No I dont. Okay, thank you, Ms. James, have 70 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

a good day. A. Okay, thank you and bye. THE COURT: MR. YATES: Okay, whats next, Mr. Yates? Give, give me, lets go ahead and

go off the record for a minute so I can consult with THE COURT: MR. YATES: MS. Swinler? Yes please, please, please. RECORD PAUSED THE COURT: Were back on the record. Okay,

were back on the record and while we were off the record the parties agreed to a June 18th postmark date for the submission of their proposed findings of fact and conclusions of law. Mr. Yates, did you have any

other evidence you wanted to present this morning this in this grievance? MR. YATES: THE COURT: in chief. No. Okay, the grievant rest its case

I think I heard while we were off the record

that Ms. Fulton indicated that she wanted to call Mr. Oakes in rebuttal, is that correct? MS. FULTON: THE COURT: Yes. Okay. Well, Mr. Oakes, let me

swear you in again please. (Witness sworn) 71 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

THE COURT: ahead Ms. Fulton. DIRECT EXAMINATION Q.

Alright, thank you.

Go right

Im handing you what was previously admitted Its a copy of a proposed

as Joint Exhibit 1.

settlement agreement with an attachment and Im referring you specifically to the Compliance Division payment plan policy. written an arrow? A. Q. Yes. That was read earlier, the following Well let Do you see that part where its

guidelines that are used in all cases (unin). me back up. A. Q. A. Q.

Do you know the origin of that policy?

Yes I do. What is it? I wrote it. And that (unin) that was read into the record

earlier, what did you intend by that sentence? A. That we would not deviate from this policy

and that it would be used uniformly by all, all employees in my charge. Q. Now, were you present to hear the testimony

that some payment plans could not be entered into GenTax? 72 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

A. Q.

Yes. And you heard him say that if it were more

than 180 months, I believe, that it couldnt be entered (unin). A. Q. Thats correct. In the situation where you need a payment

plan that is longer than the 180 months, what is, how, how is that to be done? A. We have a document, its, its actually I It contains

believe a Word document, its a template.

all of the relevant information and is comparable to our GenTax payment plan in terms and conditions, for instance and space to document all of the liability covered by the (unin). Q. A. And, and then how is that executed to you? It would need to be produced manually by the You fill in the

agent or by the agents supervisor.

pertinent information, how much does somebody owe, you know. Do they agree to the terms and conditions and

there are places for both a signature of the debtor and then a signature of a department representative. Q. A. And then where is this, where is this stored? You can still scan it into our integrated tax And then still 73 Transcription Services provided by: Globespan Transcription

system and attach it to the case.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

indicate on the, in the collection, in the collection page that there is a payment plan. Q. And in such a plan do the terms and

conditions specifically provide for a specific amount (Unin). Q. Yeah, (unin). We dont have the ability to Obviously, but the

advertise those manual plans.

taxpayer stipulates and agrees that interest will continue to accrue on the unpaid balance as well as any principle or (unin). So they know ahead of time that

the balance is still going to accrue additional, additional (unin) while theyre making their payments. Q. I am now handing you whats been entered as

Grievants Exhibit 3, the document that says account information at the top document is? A. Yeah, its an old, I believe, (unin) access Can you identify what that

program that was developed sometime before my tenure as, as division director of the compliance division, that served to document receipts of money that revenue agents collected from, from debtors. Q. A. And is this from, is this form still in use? I believe that its been recently overhauled I imagine that it 74 Transcription Services provided by: Globespan Transcription

and moved to a different location.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

looks somewhat different but I havent seen it. Q. And THE COURT: Q. Ms. Swinley?

with respect to the THE COURT: Ms. Swiney, excuse me Ms. Fulton,

please dont interrupt. MR. YATES: THE COURT: MR. YATES: THE COURT: I wasnt saying anything. No, Ms. Swiney. Oh. I think, maybe Im not hearing.

Im sorry if I, but dont interrupt because its not a conference, its a hearing, okay? Q. Referring you to the section that says

payment plant information, it has a place, defaulted (unin), and informal and its marked yes? A. Q. Correct. Are there any, can this form properly be used

to indicate an informal agreement? A. Q. A. NO it cannot. Why is that? Because it was superceded by my policy that

all payment plans be signed and in writing. Q. Weve had some testimony today and previously

about (unin) printing some peoples names onto forms 75 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

for offers and compromise, have you taken any action regarding that? A. Yes, Ive addressed that issue in writing

with Mr. Coutz and hes been instructed never to do that again. Q. A. And can you tell us why you did that? Because its not necessary for him to print a

persons name on that form other than his own and its confusing for people, it can be construed as a signature and it, he just doesnt need to do it. Q. (unin). And is it correct to say that if a, if Do you know why the taxpayer in the revocation

hearing this proceeding arose from, might have been given letters of good standing in order to, (unin) letters of good standing from the Tax Department? A. Yeah, (Unin). ABC has an annual (unin)

process and ABC requires that a taxpayer or that a, that a permit applicant be in good standing with the Tex Department before theyll issue (unin). Now, if

weve got a permit applicant on a payment agreement and have promised to pay, you know as, as made under their signature, then we will authorize the alcohol beverage folks to go ahead and issue that permit. It is a

requirement though that they be on a payment plan and 76 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

be current on that plan, be compliant with all the terms and condition (Unin). Q. And do you know why this taxpayer may have

gotten one when he didnt have a (Unin) plan? A. Well its, Im sorry, yeah its the, its the

process as dictated by me is that either myself or Michael Coutz, the assistant director, now acting director, would need to approve the issuance of that good standing certificate in those cases where there is a payment plan. And so we have to, so usually what

happens is the agent will request that we issue that because theyve got them on a payment plan. And, you

know, unless I get that representation, well go ahead and allow it because I trust all my agents to be credible until proven otherwise. MS. FULTON: THE COURT: I dont have (Unin). Okay, Mr. Yates, do you have any

questions for Mr. Oakes? MR. YATES: (Unin).

CROSS EXAMINATION Q. You mentioned that you told Mr. Coutz not to

apply our names or anybodys elses name but his own to the documents? A. Thats correct. 77 Transcription Services provided by: Globespan Transcription

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

Q.

Okay, did you give him any, a disciplinary

letter or did you just, you know, tell him dont do it again? A. Q. A. Q. A. I did it in writing. You did give it in writing? Yes. It is in his personnel file? No it is not. MR. YATES: THE COURT: Fulton, or Mr. Oakes? MS. FULTON: THE COURT: NO. Alright, anything else Mr. Yates Nothing further. Alright. Anything else, Ms.

for the record before we close the record on your grievance? MR. YATES: THE COURT: No. Like I said, you can make your

argument, you know, in your proposals as well, okay? Anything else, Ms. Fulton? MS. FULTON: THE COURT: I think thats it. Alright, thank you.

(END OF RECORDING)

78 Transcription Services provided by: Globespan Transcription