YATES_Transcript3_2011 1703-DCR 2012-05-17 Hearing

BEFORE THE WEST VIRGINIA PUBLIC EMPLOYEES GRIEVANCE BOARD

J. HUDSON YATES

Grievant.

V. Docket No. 2011-1703-DOR

TAX DEPARTMENT

Respondent.

Transcript of Level III hearing in the above

styled case held on May 17, 2012, at the Grievance Board’s

offices in Elkins, West Virginia.

BEFORE: RONALD REECE

Administrative Law Judge

APPEARANCES: J. Hudson Yates

Grievant, Pro Se

Charlie Fulton, Esquire

Counsel for the Respondent

Transcription Services Provided By:

Globespan Transcription

Globespan Transcription 2

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I N D E X

Grievant Witness: Direct Cross

Redr Recr

John Mudrinich 7 33 35

Janet Swinler 36 61

Connie James 64

Respondent Witness Direct Cross Redr Recr

Jeff Oakes 70 77

E X H I B I T S

EXHIBITS Marked Rec’d

G-1 16 35

G-2 28 35

G-3 48 49

Agency’s AX

Agency’s BX

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BE IT REMEMBERED that the following 1

proceedings were had on May 17, 2012, to-wit: 2

THE COURT: Testing, testing, test, test, 3

test. Okay, we’re on the record appearing before the 4

West Virginia Public Employee’s Grievance Board in a 5

matter styled Yates versus the Tax Department. The 6

docket number is 2011-1703-DOR. Today’s date is May 7

17, 2012. This is the second day of hearing in Mr. 8

Yates case. We’re situated in Elkins, West Virginia, 9

at the senior cent this morning. Mr. Yates appears in 10

person and also by his representative Ms. Janet 11

Swinler. And the Respondent tax, West Virginia Tax 12

Department appears this morning by hits acting Deputy 13

Commissioner, I believe is the title, and also by its 14

counsel, Ms. Fulton. Mr. Yates, when we were last hear 15

you had indicated that you wanted to reserve your right 16

to give opening before you presented your case in chief 17

so so ahead sir. 18

MS. FULTON: Okay. Michael Coutz (Unin). 19

Mr. Coutz did not bother to (unin). I have no secret 20

files. The file is in the computer. It was Mr. Coutz 21

(unin) attached and notes everything to the tax payers 22

account in GenTax so everyone regardless of location or 23

department would have access to all the information 24



available. It was Mr. Coutz who participated in (unin) 1

North Central Regional Office. The transcript and 2

revocation, at a revocation hearing was not made 3

available until months after Michal Coutz issued the 4

letter of reprimand based upon what he heard. Instead 5

of admitting a mistake and taking corrective actions 6

(Unin) everyone into believing that the charges are 7

true through manipulation and semantics. The Tax 8

Commission then chose to circle the (unin) around 9

Michael Coutz. This behavior is an embarrassment to 10

the State of West Virginia and undermines our (unin) 11

state and government. The facts are simple, I had 12

person to (unin). I had no paper filed. 99 percent of 13

the Tax Department employees have access to this 14

taxpayer file in GenTax. The transcript of the 15

revocation hearing shows I did not say what Michael 16

Coutz accused me of. The transcript was made available 17

a month after Michael Coutz issued the reprimand. It 18

is obvious Michael Coutz did not bother to check the 19

facts before making false accusations. Michael Coutz 20

assigned my name to three different documents. Michael 21

Coutz has often signed Janet Swinler’s name to the same 22

type of documents. (Unin) for an entire year, 23

continuing an (unin) amount of lost productivity times 24



and can be better spent collecting delinquent tax. 1

(Unin) issue should have been dismissed at Level I. At 2

worst it could have been settled at Level II mediation 3

but Jeff Oakes, acting (unin) deputy tax commissioner 4

refused to speak with me to negotiate settlement. As 5

for the grievance claim, original claim of unfair 6

treatment, one need not look any further than the 7

circumstances of this grievance. This grievance was 8

charged (unin) three serious infractions and has been 9

proven false but yet the semantic tango and gas 10

lighting continues. Ms. Fulton, Senior Assistant 11

Attorney General, whom is the attorney for the tax 12

commissioner was allowed to call of her witnesses. The 13

grievant requested and was denied the subpoena for Kim 14

Silvester, Jeff Oakes, Michael Coutz, and Kimela 15

Elmore. The Grievant did not get to ask all of the 16

questions at the first half that he wanted to. (Unin) 17

Ms. Fulton did not bring up the topics that the 18

Grievant wished to distress, address, therefore the 19

Grievant was unable to ask questions on cross 20

examination that he wanted to. The Grievant had denied 21

due process. Mr. Coutz did not follow the published 22

Division of Personnel disciplinary procedure. 23

THE COURT: Okay, thank you, Mr. Yates. 24



What’s, what’s next, Mr. Yates? 1

MR. YATES: call Jamie Mudrinich, start with 2

that. 3

THE COURT: It’s Jamie, how do you spell the 4

last name, would you help me out? 5

MR. YATES: M-U-N-D-R-I-N-I-C-H 6

THE COURT: M-U-N-G-R what? 7

MR. YATES: M-U-N-D-R-I-N-I-C-H. 8

MS. FULTON: M-U-D 9

MR. YATES: Yes, I’m sorry, yes there is a D. 10

THE COURT: Can you give it to me one more 11

time please? 12

MS. FULTON: M-U-D 13

THE COURT: M, M? 14

MS. FULTON: M as in Margaret, U-D-R-I-N-I-C-15

H. 16

THE COURT: Jamie Mudrinich, is that it? 17

Okay, let’s go off the record for a minute. 18

OFF THE RECORD: 19

THE COURT: Okay, we’re back on the record 20

and Mr. Mudrinich has joined us to testify in this 21

grievance called on behalf of Mr. Yates, the Grievant. 22

Jan, before you testify I’ll need to swear you in. You 23

can remain seated but please raise your right hand. 24



(Witness Sworn) 1

Alright, Mr. Yates, go right ahead sir. 2

DIRECT TESTIMONY 3

Q. You are the supervising attorney for the 4

litigation unit in the Tax Department, correct? 5

A. That’s correct. 6

Q. Okay. And safe to say that you and I are the 7

only two present that were actually at that revocation 8

hearing, is that correct? 9

A. Correct. 10

Q. But neither of us were there for the complete 11

hearing? 12

A. I was not there for the complete hearing. 13

Q. Okay, and I had left to go to the Revenue 14

Center as well? 15

A. I recall that, yes. 16

Q. Right, do you recall us passing each other in 17

the parking lot (unin)? 18

A. I do not recall. 19

Q. You do not, okay. But you do know that there 20

was a period of time that you were there and I was not? 21

A. Correct. 22

Q. Okay. Who called you there? 23

A. Danielle Boyd. 24



Q. Did she call you, text you, how did she get 1

in touch with you? 2

A. Phone, phone call. 3

Q. A phone call. She actually called you? 4

A. That’s my recollection (unin) phone call. 5

Q. Okay. Have you read the transcript of that 6

hearing? 7

A. Yes. 8

Q. You have? Okay, let me go ahead… 9

MR. YATES: This is already on record, isn’t 10

it? 11

THE COURT: It’s been made… 12

MR. YATES: …evidence, as the transcript of 13

that particular hearing? 14

THE COURT: It’s been made part of the file, 15

correct. 16

MR. YATES: Do you have a copy, Ms. Fulton? 17

(Unin). 18

MS. FULTON: Yes. 19

MR. YATES: Okay. 20

Q. There obviously is some contention as to what 21

was said, who said it, and what (unin). Okay, I’m 22

sorry, I gave you the wrong one. 23

A. Yeah. 24



Q. I’m completely sorry, that is something else. 1

I apologize. Here it is. I apologize for that. There 2

is, however, one correction on page 21, and this is, 3

was testified to at the first level grievance hearing 4

by Karen (unin) that there is a correction on page 21, 5

line number 4. That is attributed to Jan Mudrinich 6

that says should have brought them with you. That 7

should be Judge Piper that said that. 8

A. Okay. 9

Q. Okay. And she, she clarified that at the 10

level I grievance but this is the, as it was sent to me 11

so it was not marked. I just wanted to make that clear 12

that it was not Jan that said that. Okay? I was 13

accused of testifying to three signed payment 14

agreements that had been defaulted on. Reading that, 15

did I say three signed payment agreements? 16

A. I’d have to read it again… 17

Q. Okay. 18

A. In its entirety. I don’t recall you saying 19

the word signed payment agreement. 20

Q. Okay. You were not present at that, at this 21

point but if you would turn to page 18, lines 21 and 22

22, would you please read that aloud? 23

A. Miss, it says Ms. Boyd? Ms. Boyd, we have 24



three signed payment agreements (Unin) that have been 1

defaulted on. 2

Q. Okay, thank you. As I have read that, that 3

is the first time the words three signed payment 4

agreements were mentioned. Shortly after that I had 5

left and you had arrived. You know, whether we saw 6

each other, passing each other in the parking lot, but 7

about that time is when I left and you had arrived. 8

There’s actually on the next pay… 9

MS. FULTON: Objection. If the Grievant is 10

going to testify I would request that he be put under 11

oath. 12

THE COURT: Yeah, that’s, that’s a good idea 13

Ms. Fulton, thank. I meant to do that earlier. 14

MR. YATES: Your Honor, (Unin) intending to 15

testify. 16

THE COURT: Well that’s alright, it’s… 17

MR. YATES: I’m just clarifying. 18

THE COURT: Well, let me go ahead and swear 19

you in anyway because if you, you know, I, normally pro 20

se grievants I would normally swear them in at the 21

beginning of their case in chief because while you 22

might not intend to you might, you know, switch over 23

from asking questions to proffering evidence. So, if 24



you’ll raise your right hand? 1

(Grievant Sworn) 2

That’s, thank you Ms. Fulton. Let’s just do 3

it that way, Mr. Yates, ear on the side of caution, 4

okay? 5

MR. YATES: Okay. 6

THE COURT: We’re good to go, go right ahead 7

sir. 8

Q. On the next page, could you read lines 1, 2, 9

and 3 on page 19? 10

A. One, 2, and 3? 11

Q. Yes. 12

A. Line 1, Ms. Body, do we? Line 2, Jan 13

Mudrinich, yes. They’re in the system. Line 3, Ms. 14

Boyd, we have them in the system. 15

Q. Okay. And then down through there you’ve, 16

you actually are speaking with the judge about you 17

never brought a signed, you know a signed copy, a 18

signed certified copy to the revocation hearing before 19

because it was never asked, is that correct? 20

A. To the best of my recollection, that’s 21

correct. 22

Q. Okay. 23

A. That’s what we were talking about. 24



Q. Okay. And I believe I returned somewhere on 1

page 20, around line 1, line 2, when I had come back 2

from the revenue center. And then as we (unin), and is 3

it correction on line 21, where it’s attributed to you 4

but it was actually Judge Piper. Who was Judge Piper 5

talking to at that point? Was he talking to Ms. Boyd? 6

A. I don’t recall if he was talking to anybody 7

directly. He was probably talking to everybody in the 8

room. 9

Q. Okay and then if you would look at line 8, 10

where Judge Piper asked me if I, if I was able to get a 11

hold of the payment plan agreements and my response was 12

on line 10, can you please read that? 13

A. No I did not. 14

Q. And line 11 please? 15

A. It’s me saying no. 16

Q. Okay, thank you. Because in fact, there were 17

no signed payment agreements, were there? 18


Q. That is correct. As a supervisor attorney, 20

you are responsible for how many other (unin) 21

attorneys, at that time? 22

A. At that time I believe it would have been 23

three. 24



Q. Okay. Was Danielle Boyd one of them? 1

A. Yes. 2

Q. She was. Is she still employed with the Tax 3

Department? 4

A. No, she is not. 5

Q. She is not? Do you recall when she might 6

have left, approximate timeframe? 7

A. She left in the middle of December of 2011. 8

A. Middle of December of 2011, okay. As a 9

supervisor if you were going to issue the same letter 10

of reprimand that I was given, (unin) testifying the 11

three signed payment plans, without actually having the 12

(unin) that it was said, would you have still done 13

that? Would you have issued a reprimand? 14

A. I don’t understand the question. 15

Q. If you believe, but if this transcript wasn’t 16

made available until a month after the actual hearing. 17

Okay, but the written reprimand was written two weeks, 18

or within a week after the hearing. And you’re going 19

to accuse somebody of testifying under oath as to 20

something, would you do that before you had a 21

transcript to make sure it was accurate or would you 22

wait to make sure? 23

A. I, if I was confident with occurred I’d 24



probably do it, you know, immediately. 1

Q. Okay and what if you found out later that you 2

were incorrect? 3

A. I would apologize. 4

Q. Okay. Excuse me, I’m dry, too much talking. 5

Okay. Say you did issue that letter and you found out 6

later that you were incorrect, you would apologize, 7

would you leave the letter stand or would you withdraw 8

it? 9

A. It would depend on all the circumstances. 10

I’d look at a personnel manual seeing how to 11

appropriate handle the situation. 12

Q. Personnel manual, what personnel manual… 13

A. I use that term generically with the rules of 14

the Department of Personnel. 15

Q. The rules of the Department of Personnel? Is 16

there such publications or… 17

A. (unin). 18

Q. …booklet or something like a handbook (unin)? 19

A. There is various items on their website for 20

supervisors to use in discipline matters, with 21

insubordinates, just those types of documents. Just 22

what they’re called, I don’t, I don’t (unin). 23

Q. Okay. Did Mr. Coutz know that? Would he 24



have been familiar with such documents? 1

A. I have no idea. 2

Q. No idea. 3

MR. YATES: What I have here, I believe, is 4

what Mr. Mudrinich is speaking of, it’s called the 5

Supervisor’s Guide to Progressive Action, to 6

Progressive, Corrective and Disciplinary Action. Okay, 7

which we’ve (unin) before. We don’t have any copies of 8

this evidence do we? Because I don’t see any, if we do 9

there’s no need to resubmit but if don’t… 10

MS. FULTON: I don’t’ have a copy of it at 11

all so (unin). 12

MR. YATES: Do you, Mr. Reece? 13

THE COURT: I don’t believe so, Mr. Yates. 14

MR. YATES: Okay. 15

THE COURT: But it’s up to you. I can take 16

administrative notice or if you have copies or I make a 17

part of the file. 18

MR. YATES: Yeah, I have copies to provide. 19

THE COURT: If that, if you want to make an 20

exhibit then give it to me and I’ll mark it. 21

MR. YATES: Okay. 22

THE COURT: And I’ll ask Ms. Fulton if she 23

has any objection to its admission but give, let her 24



have a copy. 1

MR. YATES: Mr. Mudrinich. Yes, let me have 2

this one. (unin). 3

THE COURT: Okay, I’ll mark this as… 4

MR. YATES: I believe those are doubled 5

sided. I’m not sure. They may or may not be. Yours 6

isn’t? Okay. 7

THE COURT: (unin), I copied… 8

MR. YATES: (Unin). Some of them, may be. 9

Okay. 10

THE COURT: Well, the copy you gave me, Mr. 11

Yates, I’m going to mark as Grievant’s Exhibit number 1 12

of day 2. 13

(Grievant’s Exhibit number 1 marked for identification) 14

Q. Would you please turn to page 4, and it’s 15

labeled section B, progressive corrective and 16

disciplinary action. That chart that appears in the 17

middle of the page, is that what you are referring to? 18

A. Yes. 19

Q. As the different levels of what you would 20

follow? 21

A. Yes. 22

Q. Okay and you believe that is a policy of the 23

Department of Personnel? 24



A. Yes. 1

Q. You do, okay. Like, it, it was somebody’s 2

first offense, what would you do in that (unin). 3

A. It depends on what the offense was. 4

Q. Let’s say it’s the same offense that we’re, 5

we’re discussing here. 6

A. Which is? 7

Q. Testifying under oath as to three signed 8

payment plans, when it didn’t exist. Actually, let me 9

back that up. Saying plans but accusing the person of 10

saying that they were signed, which they were not, and 11

the person did not say that. 12

A. Well, it’s my opinion that you do not have a 13

payment plan unless it is signed. 14

Q. Okay. 15

A. So the semantic of signed, unsigned would be 16

irrelevant in my discussion. You either have a payment 17

plan or you don’t. The only way to have a payment plan 18

is to have an item signed. 19

Q. Okay. That’s not always the case. They 20

can’t always (unin) in the GenTax so what would you 21

suggest at that point? 22

A. I don’t understand the question. 23

Q. GenTax has an upper limit of 180 months. 24



A. Okay. 1

Q. Okay, let’s say it, the agreed upon payment 2

is, would put them, say 360 months. What, what would 3

you do at that point if GenTax cannot handle that 4

request? 5

A. Well, if it was a, I would get a signature on 6

a payment plan for 360 months if that was the, what the 7

agreement was going to be. 8

Q. Okay. Is there any way, if we just want to 9

add that (unin) manually, is there any way to give an 10

(unin) schedule that (unin) like GenTax was? 11

A. I have no idea. 12

Q. Okay. Because my concern with that is, 13

that’s fine and you’re getting them to sign an 14

agreement. Their balance due is say $100,000.00 and 15

you’ve agreed them to make a $1,000.00 payment, okay? 16

Which, you know, GenTax will forecast it into the 17

future for 180 months, with, you know, what interest 18

will accrue, what penalty will accrue, and provide an 19

(unin) schedule that says the first payment, this and 20

this much is going to go to this, this much is going to 21

go to this. When we get the, when that payment would 22

be agreed to, you really don’t know how many months 23

that’s going to go. There’s no way to really forecast 24



that so you, so you might say, just, you know 1

$100,000.00 divided by 1,000 payments. $1,000.00 2

payment, that’s 100 payments. But it would actually be 3

more than that because of the (unin). You’re signing 4

(unin), you’re making it a legal document. We can’t 5

expect the person to pay more than that. I mean if we 6

say they’re going to pay this much and this is the 7

balance do, which GenTax was forecasting the future, we 8

can’t do that. And I… 9

A. Are you talking about, the agreement would be 10

if it’s $100,000.00 debt, payments of 1,000 a month 11

until paid in full? Is that what we’re… 12

Q. It usually doesn’t say that. The agreement 13

shows, you know you owe $100,000.00, you have payments, 14

if gives the allusion that after they’ve made the 100 15

payments they’re done, that’s not true. Okay, if it is 16

signed and it says $100,000.00, let’s do it for today. 17

Taxpayer owes $100,000.00 today and you’ve agreed to 18

$1,000.00 a month. The payment plans says it’s 19

$100,000.00. 20

A. Hum? 21

Q. For x number of months. And that’s 22

approximate, that’s not set because we’re not sure. 23

Can we increase the amount later at the end saying well 24



interest and penalty accrued, you owe more money? 1

A. Well it depends on all the terms and 2

conditions of the payment. 3

Q. Okay. Following the payment plan policy, 4

according to the policy a revenue agent can only 5

countersign a payment plan of 12 months or less. If in 6

that, let’s say it is put in GenTax and its 13 months, 7

the supervisor is supposed to countersign that. Why 8

would somebody be accused of doing something they can’t 9

create? 10

A. I don’t know. 11

Q. Again, be it it’s against policy to create 12

such, such a (Unin). 13

THE COURT: I’m going to go off the record, 14

Mr. Yates, you let me know when you’re ready. 15

RECORD PAUSED: 16

THE COURT: Okay, Mr. Yates, we’re back on 17

the record, please ask your question. 18

Q. If we do a manual payment agreement and we 19

say we’re going to tack on extra interest and 20

penalties, would he have to sign that in addition to 21

the original agreement? Like, let’s say we get in, to 22

the end of it, he’s made is 100 payments of $1,000.00. 23

According to your GenTax (unin) calculate (unin). Do 24



we have, you know, he filed the obligation originally, 1

you know can we (unin) him to make the rest of it? 2

A. It depends upon the terms of the signed 3

agreement. 4

Q. I mean what if it wasn’t in the terms and 5

there’s no set schedule. The taxpayer is (Unin). You 6

know, they really don’t know their true amount of debt 7

that they have other than what it is at that point in 8

time. If you’re going to borrow a car, borrow a house, 9

you’re given a, you know an organization schedule in, 10

in, you know, (unin) so each person knows exactly how 11

much they’re going to pay. I’m not, I’m not making 12

sense am I? 13

A. No, other than, I mean, it depends on the 14

terms of your agreement. If you’re talking about the 15

fact of interest and things such as that are accruing, 16

which is what (unin) paying a debt over time, it’s 17

going to be more than the original amount. Or 18

interstate interest rate, subject to change every six 19

months. So you can never be certain on anything beyond 20

something (unin) within the January to July period. 21

Q. But you couldn’t do a payment plan in general 22

because we, we instigate a payment plan now, based upon 23

what it is, GenTax forecast it into the future as to 24



what’s been paid, taxpayer (unin), say the interest 1

rate changes or doubles, you can’t, how, you couldn’t 2

hold the taxpayer to that, could we? 3

A. It depends on the terms and conditions of the 4

payment plan. If it says a statutory interest, 5

applicable interest, yes you could. 6

Q. Okay. Even if the taxpayer was given (unin) 7

organization that says today you owe this making it 8

over the, you know x number of months you’re going to 9

owe this amount at the end so therefore you will pay 10

150,000. And say you get to the end of that and he 11

still owes another 10 but he’s (unin) his agreement. 12

What, what then? I mean the actual agreement said 13

you’re going to pay this much, this many months, and he 14

does, period. And he’s fulfilled that agreement but he 15

has, say the interest changes and it goes up. 16

A. Likely owe the additional money or he, even 17

(Unin) he thought he had a solid agreement where he was 18

only obligated that (unin) month, he could go to court, 19

I guess. Challenge that he owes the additional 10,000. 20

MS. FULTON: I’m going to object to this line 21

of questioning. We’re getting pretty far afield of 22

anything that is relevant to what happened at the 23

hearing and these hypotheticals (unin). 24



MR. YATES: (Unin) relevant due the fact 1

I’m accused of saying something. 2

THE COURT: Well, I think what she’s saying 3

is, well her object is that all these hypotheticals on 4

GenTax, and you know, payment plans, how is it relevant 5

to, I’ve taken there was a representation made in front 6

of an administrative law judge that there were signed, 7

or unsigned payment plans and they didn’t exist. You 8

know, that’s her objection. I’m going to sustain the 9

objection. Please try to ask this witness questions 10

that are relevant to--You know, we’re here about a 11

written reprimand, correct, that you received. But you 12

were exonerated on one of those at level, at Level I. 13

The main thrust of what I saw in the level I decision 14

was, as you indicate the charge of false swearing or 15

perjury under oath. I’m just summarizing the level I 16

decision. 17

MR. YATES: Can I go off the record again, 18

for a moment? 19

THE COURT: Let’s go off the record. 20

RECORD PAUSED 21

THE COURT: Okay, we’re back on the record 22

after a brief recess. Go right ahead Mr. Yates. 23

Q. You’re saying that the only payment agreement 24



is the (unin) payment agreement? 1

A. That is correct. 2

Q. That is correct, okay. In this (unin) 3

agreement sheet (unin) the Division’s payment plan 4

policy (unin). You should have a copy of all that. 5

MR. YATES: Okay, I’ll go ahead and give you 6

my copy. I know I have extras somewhere but, I think 7

everybody has a copy of it. 8

Q. The part that is starred, could you please 9

read that? 10

A. The following guidelines are to be used in 11

all cases and uniformly by all offices and units of the 12

Division relative to payment agreement. 13

Q. Okay. Does that say that there’s wiggle room 14

to their guidelines, this is what you should do but is 15

not always what you can do? 16

A. I don’t know the answer to that. 17

Q. Don’t know the answer to that. Did you help 18

write that policy or did legal have any input on the 19

policy? 20

A. I have reviewed the policy various times over 21

the years, there’s been a policy around for a long 22

time. I don’t know if it originated (unin). 23

Q. Okay. Okay, I’m, I’m done with payment 24



plans. Let’s go on to offers and compromise, of which 1

you’re familiar with, you signed them on behalf of the 2

legal department to make sure all I’s are dotted T’s 3

are crossed, correct? 4

A. Correct. 5

Q. Has it always been the only person that 6

really has to sign it is the tax commissioner, he has 7

to final approval on it or is anybody’s signature 8

important? 9

A. The Tax Commissioner, if the Tax Commissioner 10

signs something he trumps the need of anybody else 11

besides, as far as I’m concerned all the authority is 12

delegated down from him or her. 13

Q. Okay. Would you sign something you didn’t 14

agree with? Let’s say there’s an offer and compromise 15

and you didn’t’ agree with it, would you sign it? 16

A. I can’t answer that. 17

MS. FULTON: Objection to relevance. 18

MR. YATES: The relevance is, my name has 19

been signed to the document and I’m asking if, if he 20

didn’t agree to something (unin). 21

A. (Unin) attorney and I represent my client. 22

So whether or not I agree with something is generally 23

irrelevant in the line of work that I do. 24



Q. (unin). 1

THE COURT: (Unin). Let me address the 2

objection. The witness pretty well took care of the 3

objection. I’m still having a little bit of trouble 4

understanding why we’re talking about offer and 5

compromise. It wasn’t part of your reprimand was it? 6

MR. YATES: It was not part of the reprimand 7

but it is in the same timeline as would go to the 8

harassment defense. 9

THE COURT: Okay, well… 10

MR. YATES: Of the original claim. 11

THE COURT: Okay I, yeah I do recall that at 12

Level, at the last Level III hearing. Go ahead and ask 13

your questions Mr. yates. 14

MR. YATES: Okay. 15

Q. How long have you been an attorney? 16

A. Since 1985. 17

Q. 1985. What is the legal definition of a 18

signature? 19

A. The legal definition? 20

Q. Yes. 21

A. I don’t know that off hand. 22

Q. I have some information here from Black Law 23

Dictionary. (Unin). If you would turn to the, (unin), 24



correct? 1


Q. Okay, if you would turn to the, I believe 3

(unin) page (unin) at the bottom where it says (unin) 4

signature. Could you please read that? 5

A. Unauthorized signature, a signature made 6

without actual implied or apparent authority. It 7

includes forgery, UTC section 1-201D41. 8

Q. Okay, and right above that where it says 9

signature, would you read the first part please? 10

A. A person’s name or mark written by that 11

person or at that’s person’s direction. 12

Q. Okay. It doesn’t say anything about it being 13

printed in long hand or anything like that’, it’s the 14

person’s mark, correct? 15

A. Correct. Correct. 16

Q. Mr. Coutz has assigned my name to three of 17

those (unin) offers. Did he consult with you or anyone 18

else in the legal department of whether or not he is 19

allowed to do that, he has the authority to apply 20

somebody else’s name… 21

A. No. 22

Q …to a document? 23

A. Mr. Coutz never consulted with me on such 24



(unin). 1

Q. Okay. If he had, what would you say? 2

A. I’ll need you to give me the question a 3

little bit more specific. I listened to your previous 4

question about whether he consulted with me, now I’ll 5

need… 6

Q. Okay, I understand. I’m trying to think of a 7

way to word it, the way I would like to word it. If he 8

had consulted with you and told you that he was going 9

to affix an agent’s name to a document where it is 10

implied that that is a signature line where everybody 11

(unin) the signature line, what would your response be? 12

A. I would need to see the document. 13

Q. Okay. 14

MR. YATES: It might have already been 15

entered into the record, as what the documents are. 16

I’ll give you another one. I believe we all submitted 17

this into the record (unin) Swinler (unin). Do y’all 18

have a copy of that? 19

THE COURT: I believe so. In the meantime, 20

Mr. Yates, you want this definition marked as an 21

exhibit? 22

MR. YATES: Yes, absolutely, please. 23

THE COURT: I’ll mark this as Grievant’s 24



number 2. I’m going to mark it on the page at 1,150 1

because the front is black, no pun intended, as 2

Grievant’s number 2 at day 2. 3

(Grievant’s Exhibit number 2 marked for 4

identification) 5

Go ahead Mr. Yates. 6

Q. Okay, in the section, do you see where Janet 7

Swinler’s name is affixed, correct? 8

A. Yes, mm-hmm. 9

Q. (Unin) above that that reads recommendations, 10

would you please read that? 11

A. Recommendations. 12

MS. FULTON: (unin). 13

MR. YATES: I’m sorry. Do you want an extra 14

copy? 15

MS. FULTON: No, I’ve got it. 16

MR. YATES: You’ve got it? 17

A. Recommendation, we recommend acceptance of 18

this offer. We have examined the offer and compromise 19

and the financial statement and we believe them to be 20

complete and correct. The taxpayer has filed all tax 21

returns, the offer correctly states the tax liability, 22

we are of the opinion that the state cannot collect 23

from the taxpayer’s assets or income in the amount 24



greater than the offer in the foreseeable future based 1

on the compromise analysis on page 2 of this 2

memorandum. 3

Q. Okay, and from reading that, does it not give 4

the implication that Janet agreed to that and she 5

recommended this offer? 6

A. That certainly appears to be a signature line 7

(unin). 8

Q. So a general, generally in, on, in principle 9

the average person that would be reading this that has 10

no idea who Ms. Swinler is, would interpret that as a 11

signature? 12

A. That’s how I would interpret that. 13

Q. (unin)? 14

A. (Unin). 15

MS. FULTON: I’m sorry, can I have a copy of 16

that? It turns out I don’t’ have a copy. 17

MR. YATES: Sure, absolutely. (Unin). Okay. 18

Q. Is there any indication that that is not 19

Janet Swinler’s signature, if you were not familiar 20

with her? 21

A. No. There’s no indication to the contrary. 22

Q. Is that a forgery? 23

A. I don’t know Janet’s signature (unin). 24



Q. But if you didn’t know it and this was 1

presented in front of you, you’re, you’re saying that 2

you would interpret that as her signature? 3

A. Yep. 4

Q. Okay, now if it is not her signature, would 5

it not be a forgery? Would it not, (Unin) falsifying a 6

record? 7

THE COURT: Well that’s a different kettle of 8

fish all together Mr. Yates. You have to know the 9

elements of forgery and I don’t know whether this 10

witness knows the elements of forgery, I don’t right 11

off the top of my had but there are clearly defined and 12

codified elements and- 13

MR. YATES: Okay. I have here some more 14

information regarding signatures and such that has, 15

there’s also a Black Law Dictionary (unin), it’s from 16

the online version. I’d like to have that entered in 17

please. 18

THE COURT: Do you have a copy for Ms. 19

Fulton? 20

MR. YATES: Yes, Sir. 21

Q. Okay, let’s just go ahead and start with the 22

very first page where it says definition of signature, 23

would you please read that? 24



A. Ecclesiastical law, the name of a sort of, a 1

script without seal containing the (unin), the 2

signature of the Pope or his delegate and the grant of 3

a pardon who’s contract the act of writing’s one name 4

on deed, no contract, or other instrument, either to 5

identify or to authenticate it or to give it validity 6

as one’s own act. The name so written is also called a 7

signature. 8

Q. Okay, is that pretty much very similar to the 9

definition you read earlier? 10

A. It’s a lot more words. 11

MS. FULTON: Objection the, the, what some 12

definition in ecclesiastical law is completely 13

irrelevant. 14

MR. YATES: How is it irrelevant? 15

MS. FULTON: We’re not in (unin). 16

MR. YATES: A signature is still a signature. 17

THE COURT: Well, you’re trying my patience 18

Mr. Yates. I understand, we talked about this on day 19

one that these documents, the offers and compromise, 20

your name or another agent’s name was affixed to it or 21

signed to it. I mean I know that already. Whether 22

it’s forgery or not, I don’t really care. And I don’t 23

see it as forgery. And you know you need to focus on, 24



what’s your point. I don’t understand what the 1

relevance is of this exercise and what it is meant to 2

be defined as a signature. What’s the point? Get to 3

the point. I mean I think they would stipulate that 4

these offers and compromise were in fact signed by 5

Coutz and sent to the main office in Charleston for 6

approval. 7

MS. FULTON: We would, and that they were 8

approved by either the assistant state tax (unin). 9

THE COURT: I’m going to give this back to 10

you, Mr. Yates, I’m not marking it as an exhibit. 11

MR. YATES: Okay, I’ll just have one more 12

question. 13

THE COURT: And that’s an agreed upon fact, 14

Mr. Yates, that’s what I’m saying. I’m sorry that I’m, 15

my patience are thin today but Ms. Fulton indicated 16

that she stipulates to that. It’s not in dispute, 17

okay? You, you won that point. You need to move it 18

towards whatever you’re, you know your charge is and 19

you said harassment, okay? 20

MR. YATES: Okay. Okay, I’m done with the 21

witness. (Unin). 22

THE COURT: Ms. Fulton, did you have any 23

questions for this witness this morning? 24



MS. FULTON: Yes. 1

THE COURT: Mr. Mudrinich. 2

CROSS EXAMINATION 3

Q. Were you the person who decided, made the 4

decision to drop the revocation proceedings, the 5

business license revocation proceedings against the 6

taxpayer in this matter? 7

A. Yes. 8

Q. Why did you decide to drop the proceedings? 9

A. Because I believed that there was a, I won’t 10

say a lying under oath because I, I won’t go that far, 11

but there was some representation that there was a 12

payment, (unin) payment plan and it turns out there 13

were not. 14

Q. And why did the fact that this testimony was 15

made cause you to drop the proceeding? 16

A. Credibility issues in front of the 17

Administrative Tribunal. 18

Q. Mr. Yates earlier showed you the progressive 19

disciplinary (unin) section of the supervisor’s guide. 20

Do you, considering the facts and circumstances of this 21

case and what happened at the revocation hearing, did 22

you consider the, would you consider the reprimand that 23

was issued under these circumstances to be appropriate 24



or not? 1

A. Appropriate. 2

Q. And why is that? 3

A. There was a representation made under oath 4

that there were payment plans. There were not payment 5

plans. To me that’s a, that’s serious because it’s 6

under oath at a hearing. 7

MS. FULTON: I have no further questions. 8

THE COURT: Okay, Mr. Yates, any more 9

question for this witness? 10

MR. YATES: I need a moment please. 11

THE COURT: Okay, let’s go off the record. 12

MR. YATES: Yes. 13

THE COURT: Let me do some housekeeping while 14

you’re--you moved the admission of Grievant’s Exhibit 1 15

and 2. Is there any objection to their admission Ms. 16

Fulton? 17

MS. FULTON: I have no, that was the law 18

dictionary and… 19

THE COURT: I’m going to, and the supervisor 20

(unin). 21

MS. FULTON: No I don’t (Unin). 22

THE COURT: Okay, you’re, you’re exhibits are 23

admitted without objection. 24



(Grievant’s Exhibits 1 and 2 admitted 1

into evidence) 2

THE COURT: Go ahead, Mr. Yates if you have 3

any questions. 4

MR. YATES: I just have one question. 5

REDIRECT EXAMINATION 6

Q. If there were no signed payment plans, why 7

did Mr. Coutz or Mr. Oakes, three years consecutively 8

have forged letters (unin) the (unin)? 9

A. I do not know. I’m not Mr. Coutz or Mr. 10

Oakes. 11

THE COURT: Any more questions sir? 12

MR. YATES: No. 13

THE COURT: Okay. Alright, Thank you Mr. 14

Mudrinich. 15

MR. MUDRINICH: Thank you. 16

THE COURT: As far as I’m concerned, unless 17

you carpooled. 18

MR. MUDRINICH: I carpooled but. 19

THE COURT: Yeah. Thank you sir. 20

MR. MUDRINICH: You’re welcome. 21

THE COURT: Nice to meet you. What’s next, 22

Mr. Yates? 23

MR. YATES: Ms. Swinler please. 24



THE COURT: Okay, Ms. Swinler, you can 1

testify right here from your chair. You don’t have to, 2

well unless you want to move down a little bit just for 3

the sake of comfort, however you feel more comfortable 4

is fine with me. And… 5

MS. SWINLER: (Unin). 6

THE COURT: Yeah, that would be a little 7

awkward, wouldn’t it. Alright, Ms. Swinler, you have 8

been called as a witness on behalf of Mr. Yates to 9

testify but before you do so would you please raise 10

your right hand. I’ll swear you in. 11

(Witness sworn) 12

THE COURT: Thank you. Go right ahead, Mr. 13

Yates. 14

MR. YATES: Okay. 15

DIRECT TESTIMONY 16

Q. About the payment plans, you have been a 17

revenue agent since… 18

A. 1998. 19

Q. 1998, was there, previous to GenTax how were 20

payment plants handled? 21

A. Mostly in, at North Central Regional Office, 22

that’s the only place I can talk about, we did payment 23

plans when we could. We, our objective was to collect 24



as much delinquent tax as we could. Sometimes we did 1

it on payment plans, sometimes we did it on, just the 2

taxpayer would send that payment. We would enter them, 3

there was a monthly report that we gave out and the 4

monthly report would have all of the taxpayer 5

information and then there was a little box over at the 6

side and we had to click whether it was, the payment 7

was in full or if it was a payment plan and we would 8

put a PP. 9

Q. Okay. How did you keep track of that 10

information? 11

A. A lot of my information was kept on records, 12

handwritten records. 13

Q. Handwritten records. 14

A. Where we would write it. We would have a log 15

on the front of the, of the case file and we would put 16

down what day we talked to the taxpayer, or, now this, 17

we had to keep these to a certain minimum. We could 18

put the, put a comment in (unin) but there wasn’t a 19

whole lot of room there so we took a lot of manual 20

handwritten notes. 21

Q. Handwritten notes? 22

A. Yes. 23

Q. Did, if the payment crossed your desk you’d 24



log it into a program called Accounts Maintenance, 1

correct? 2

A. Yes. 3

Q. And then you would mark… 4

A. Not at first. Not in 1998. I’m, at first, 5

as I said, we did them by hand. And then a woman by 6

the name of Kim Houston created software where we could 7

then do it on the computer. 8

Q. Okay. At that time were all the payment 9

plans signed? 10

A. No. 11

Q. No. They would just send in a thousand 12

dollars a month, you would mark it as a payment plan 13

because they were making a payment, whether… 14

A. We, that’s what we did. We marked it as a 15

payment because consistently, if they month, after 16

month, after month sent in a payment plan, I accepted 17

it, I put it in the computer, I diminished their 18

liability by that, that amount of debt. I didn’t know 19

what else to call it. It looked like a payment plan 20

and it’s what we did. 21

Q. Okay and when Kim Houston created the program 22

Accounts Maintenance, what then? 23

A. It was the same thing. We’d put it in as a 24



payment plan. I, there was, when she, when she did the 1

software, and incidentally in GenTax and even when it 2

was over to, we now do it online. There is no place 3

there for a partial payment. It, when we’re talking 4

about payments we’re talking about payment plans. 5

That’s how they go into the brand new software that we 6

use for, to, that replaced the old Accounts 7

Maintenance. 8

Q. When did it replace the old system? 9

A. Oh gee, I don’t know for sure. 10

Q. Fairly recently… 11

A. Wait a minute, are you talking about the most 12

recent one? 13

Q. Yeah, the one that’s web based, the new one. 14

A. Oh, the web based, a month (unin). 15

Q. (Unin). 16

A. Well, I don’t’ know. 17

MS. FULTON: Objection. I have no, this is 18

not relevant, what the history was. We’re talking 19

about a policy that was in effect at the time that this 20

hearing took place, not the history of everything 21

(unin). 22

MR. YATES: It will be relevant, I believe, 23

in a moment. 24



THE COURT: Okay, I’ll overrule the 1

objection. 2

MR. YATES: Okay. 3

THE COURT: Go ahead and demonstrate to us 4

the relevancy. 5

Q. Okay, what I have here is actually a print 6

out from the Account’s Maintenance system that was in 7

effect when the taxpayer in question’s revocation 8

hearing, you know, during his tenure. (Unin). 9

THE COURT: Thank you (unin). 10

MR. YATES: I can (unin). 11

Q. If you would look at the very top left hand 12

corner that’s highlighted in pink. 13

A. Mm-hmm. 14

Q. Would you please read that? 15

A. Payment plan information. 16

Q. And then right below it, it says? 17

A. It says formal and you can say no or yes. 18

Q. And hat one is marked? 19

A. Yes. 20

Q. And it’s marked as informal? 21

A. Informal, I’m sorry. 22

Q. And what does that mean? 23

A. That means to me that there’s no paper 24



anyplace that, that this taxpayer signed that says that 1

he was going to pay, make these payments. 2

Q. Okay. Going down to the lines on the right 3

hand side of that, the ones that are highlighted in 4

pink, what do those say? 5

A. Payment plan, payment plan, payment plan. On 6

the next page, payment plan, payment plan, payment 7

plan, payment plan (unin). 8

Q. Okay, and what is in yellow? 9

A. Delinquent current. 10

Q. What’s delinquent current mean? 11

A. That means that they are delinquent on that 12

particular account but they’re paying, they’re paying 13

their currents along with it. At that time, the 14

biggest rule we had was that you could not have a 15

payment plan unless you were current. You could not 16

pay old taxes with current money. 17

Q. Okay and then the ones in green, what do 18

those say? Next page I believe. 19

A. Bad check. 20

Q. They all say bad check? 21

A. Bad check, bad check, bad check, bad check. 22

Q. Okay. If a taxpayer is on formal, informal 23

payment agreements and they write a bad check what, 24



what happens? Or they don’t make their current 1

payments due on their current return? 2

A. What is supposed to happen, according to the 3

guidelines, is that what you, is that how you want me 4

to answer? 5

Q. Yes. 6

A. They’re supposed to be immediately removed 7

from the payment plan. 8

Q. But does that always happen? 9

A. No it doesn’t. The first thing we do is the 10

the, try to get them to make up that bad check very 11

quickly and we go see them, we do whatever we can. We 12

alert them immediately there is a bad check, we tell 13

them what, what’s in jeopardy, what can happen to them 14

if they don’t get it, and I personally usually give 15

them a timeframe. Most of mine go within 10 days. I 16

would rather say tomorrow but I’m supposed to give them 17

a little time to do this. 18

Q. Okay. The policy, there’s no argument there. 19

A payment plan is a signed payment plan. That’s not 20

always taught though, is it? 21

A. (unin). We’re talking about GenTax again. 22

When it came out it was not possible. Everybody within 23

the sound of our voice was working on it, including Mr. 24



Oakes was working as hard as they could to get that 1

settled, to get that taken care of. There was one time 2

I remember he even mentioned to me that possibly we 3

should have another computer sitting there so we could 4

use that computer to do payment plans so we weren’t 5

tying up a computer that we had to do our regular work 6

on and there (unin). They were a nightmare. It 7

wasn’t, we knew we had to have them, we knew we wanted 8

them signed. We did everything we possibly could, but 9

was it always possible, honest, Judge, I’d be lying 10

under oath if I said yes. It was not always possible. 11

And nobody ever said to me, Janet, there’s not a signed 12

payment plan so you can’t take that man’s money. Every 13

month, every month my report went in it said payment 14

plan, payment plan, payment plan, and anyone that 15

picked, opened up GenTax could tell whether or not that 16

was singed. As a matter of fact, if Mr. Coutz or Mr. 17

Oakes would call and ask me about a taxpayer and I 18

would say he’s made payments for the last two or three 19

months, both of them would say to me, is that payment 20

plan signed? 21

Q. And your answer would be? 22

A. The truth, whether it was or it wasn’t. But 23

nobody ever said to me, Janet stop taking that money. 24



We took it and we applied it and I don’t know, if it 1

looks like a payment, it acts like a payment plan, I 2

don’t know how you can say that the only payment plans 3

we have are signed. I don’t understand that legally. 4

There’s a legal place there that I don’t understand. 5

Q. In your experience did some of the taxpayers 6

that (unin) send you that thousand dollars a month, 7

every month, every month, every month… 8

A. (Unin). 9

Q …just don’t want to sign it? 10

A> For a lot of reasons. I get a lot of 11

reasons. They, they don’t, they don’t want to get to 12

be, if something happens to them they don’t, they don’t 13

want their children to have to pay it. Somehow or 14

another they’ve got the idea that it goes away. I 15

explained to it, it absolutely does not, there’s always 16

(unin). They have a plethora of reasons as to why they 17

don’t do this. And… 18

Q. But yet they still send in the money? 19

A. Oh absolutely. They send in the money and I 20

continue to accept it, I continue to apply it to their, 21

to their account. 22

Q. Okay. And if you would ask that taxpayer 23

they would say there were on a payment plan or not? 24



A. I believe if you read the transcript of the 1

revocation hearing, that taxpayer said, I’m on a 2

payment plan. He believed that he was. He ended, and 3

Judge Piper--And I agree with the fact that Judge Piper 4

said to him, wait a minute, we don’t need to talk about 5

this. 6

MS. FULTON: Objection, this is not relevant 7

for (unin). 8

THE COURT: No, I want to hear, I’m going to 9

overrule the objection. I want to hear it. Go ahead. 10

A. Okay, Judge, I agree with him, he became 11

alarmed when the taxpayer continued to say, I tried to 12

settle it. I tried to give them a lump sum. I wanted 13

to talk. I went to, I went to, speaking of, I don’t 14

know whether he called Hudson by name but he called the 15

supervisor, Kim, I went to her office, I tried to 16

settle it. I’m at a loss as to why someone didn’t say, 17

let’s stop right now and give this man an offer and 18

compromise. I’m at a loss as to why that didn’t 19

happen. The Judge became alarmed because here he is, 20

he’s going to revoke this man’s license. The man says 21

he was on a payment plan, we don’t have a payment plan. 22

The, the, the computer, if you look at the computer you 23

can see where the man was given $13,000.00. What was 24



that for? He was making up a payment plan. And each, 1

each of the three years that he was awarded the offer 2

and compromise, different people did that. 3

Q. A letter of good standing, correct? 4

A. Yes. He had to have, he had to make up the 5

payments to get a letter of good standing because he 6

wanted a liquor license. Now, that’s what he did. 7

Each year, we told him, you make up your thousand 8

dollars a month and we’ll give it to you. You give us 9

the unsigned, or the returns that we need, we’ll give 10

it to you. And we did. And somebody had to okay that 11

conditional letter of good standing. The supervisor 12

couldn’t do it and Hudson couldn’t do it and the other 13

revenue agent who, who, who affixed her name onto that 14

and did it, they could not find that. That had to go 15

through Division. It had to be either Michael Coutz or 16

Mr. Oakes, one of the two. Somebody, for three years 17

agreed, somebody in Division agreed that this man was 18

on a payment plan. 19

THE COURT: They they couldn’t, the Grievant 20

couldn’t produce the payment plan. That was what the 21

Judge’s concern was. Well, the Judge asked for the 22

payment plan, didn’t he? 23

A. If you read that very carefully… 24



THE COURT: I haven’t. That’s why I’m 1

asking. 2

A. Okay, if you read that very carefully, the 3

Judge gets alarmed because the, the taxpayer is 4

insistent that he’s on a payment plan. They’re saying 5

he’s not and he, and they swore, they swear in the text 6

here and he’s insistent that he was on a payment plan. 7

I mean he doesn’t know. But he kept saying, I want to 8

pay lump sum. I want to, I want someone to give me a 9

deal. I want to have, he kept saying interesting 10

instead of interest. He went on with that and if I 11

were the judge I would have been, I would have been 12

alarmed too. I would have immediately said, wait a 13

minute, we have to stop. One of the, one of the 14

things, of the revocation, the (unin) the things that 15

they handed out to us… 16

Q. (Unin). 17

A. …(unin) enough about a revocation hearing. 18

Number 2 says definitely that the supervisor, and when 19

Hudson or anybody, when a revenue agent puts forth a 20

name for a revocation hearing, then the supervisor and 21

someone in Division, that here again, we only have two 22

people in Division and that is Mr. Coutz and Mr. Oakes. 23

They have to look at that and they have to approve that 24



to go on to revocation. They have to look at the case. 1

They have to, if there was signed payment plans, first 2

it should have been stopped at that (unin). I don’t 3

understand that. Everybody that looks at the computer 4

knows whether a payment plan is signed or not. It’s, 5

we don’t, it’s not a secret. We don’t keep it a 6

secret. It says right on the left side of the computer 7

whether or not there’s a signed… 8

THE COURT: Okay. 9

A. …payment plan. 10

THE COURT: I understand. Thank you. I’m 11

going to mark, do you want this marked as your 12

Grievant’s Exhibit number 3 13

MR. YATES: Yes, absolutely. 14

(Grievant’s Exhibit number 3 marked for 15

identification) 16

THE COURT: Alright, did you have more 17

questions for Ms. Swinler? 18

MR. YATES: I do. 19

THE COURT: Do you have any objection, Ms. 20

Fulton, to the admission of Grievant’s number 3? 21

MS. FULTON: No. 22

THE COURT: It’s admitted. 23

(Grievant’s Exhibit number 3 admitted 24



into evidence) 1

Q. You’ve been with Tax (unin) since 1998, 2

right? 3

A. Yes. 4

Q. At any time have you been giving an employee 5

handbook? 6

A. I’m sure I have. I, but I can’t produce it, 7

if that’s what you’re asking. 8

Q. Okay. 9

A. I can’t produce it but I’m sure I have, 10

probably when we were down in Charleston when we went 11

for indoctrination or whatever it was, we had our 12

pictures taken and everything. At that point, that’s 13

probably when I was given that handbook. 14

Q. Okay. Do you recall me ever receiving a 15

handbook? 16

THE COURT: She probably doesn’t know that. 17

MS. FULTON: Objection. 18

THE COURT: It calls for speculation. 19

MR. YATES: Okay. 20

THE COURT: She just, she, let the record 21

reflect she just raised her hand to answer that she 22

doesn’t know. Let’s move on to, ask, you know ask 23

relative questions Mr. Yates. 24



MR. YATES: Okay. 1

THE COURT: I mean what’s, what’s your point 2

with the employee handbook? 3

MR. YATES: I made a claim that Mr. Coutz is 4

treating me differently and this is, this reprimand is 5

a manifestation of that. 6

Q. Did, after Bill (unin) left and you became 7

the acting supervisor, how did Michael Coutz change 8

towards me? It was, there was always tension but it 9

became more intense, is that correct? 10

A. It changed to the point that when Mr. Coutz 11

was at North Central Regional Office and you were 12

there, I mostly had you come in my office and work with 13

me. Mostly, I had you to stay close to me so I could 14

keep you busy, so you wouldn’t fall under a critical 15

eye, overly critical eye. 16

Q. Okay. So there was a, so, wow. Did he ever 17

spend time with other agents, you know just talking, 18

(unin) whether it’s baseball, whatever? 19

A. You’re talking about the period after, the 20

15th of June, is that about when it was? 21

Q. Yes. 22

A. That’s when Mr. Coutz was sent to North 23

Central and he came every day. Yes he did. He spent 24



most of his time in, into the office of the other two 1

agents. 2

Q. But he never made no attempt to speak to me 3

other than maybe hello, good morning or very brief? 4

A. I wasn’t around all the time so I don’t know. 5

Q. Okay. 6

A. I can’t answer that. 7

Q. Do you recall a time that Mr. Coutz, Connie, 8

James, and I used to go to lunch together? 9

A. Yes (unin). 10

Q. And it was just nearly every day that I was 11

there, correct? 12

A. Yes. 13

Q. And you recall that it abruptly stopped but 14

they continued to go to lunch together? 15

A. My attention was called to that, yes. 16

Q. Yeah. Okay. What are some of the things 17

that you observed that he would do? Like, did he ever 18

say anything to you about me, ask questions, make fun 19

of things? You know, maybe the way I talk, some of the 20

words I’ve chosen, a shirt that I would wear? 21

A. Mr. Coutz used to laugh because people that, 22

people the Elkins (unin) would many times mistake your 23

voice to be that of a woman and he, he thought that was 24



very funny and he liked repeating that, that, that you, 1

he got many calls about people mistaking you for a 2

woman. 3

Q. And he found that humorous? 4

A. Very. 5

Q. Very. Did he ask, because he thought I was 6

funny. 7

A. (Unin). 8

THE COURT: I’m sorry, I couldn’t hear you. 9

A. Let me answer, yes he did. He came in to my, 10

to my desk and he said to me, (unin) in there and, and 11

we’re about the dressing and everything because there 12

was, there was the jokes about Roger never ironing his 13

clothes and he looked awfully sloppy and then he 14

mentioned you and he said, Janet do you think he’s 15

funny? 16

THE COURT: You’ll have to let the record 17

reflect that you’re moving your hand back and forth and 18

shaking it. 19

A. Yes. Do you think he’s funny? 20

THE COURT: Because that won’t be picked up 21

on the recording so, how does that describe why you are 22

gesturing? 23

A. I don’t remember my exact words but there 24



were, they were something, they went something like 1

that. That’s none of my business. I don’t care. That 2

makes no difference to the way he does his job. It 3

means nothing to me. Hudson is a good employee. And 4

he said, no I’m just asking, do you think it--and I 5

said, the only way I could ever know is if I was there. 6

And if I’m there, what does that make me. I didn’t, I, 7

(unin). 8

Q. The, several of events that I’ve talked 9

about, about the different treatment and suck like 10

that. Did you ever bring that to the attention of 11

anybody? 12

A. Are you talking about the different treatment 13

of you? 14

Q. Right, the way he acted toward me, did you 15

bring that to anybody else’s attention? Did you… 16

A. Yes. Yes I did. After, after I moved, I 17

went to Morgan Town there was so many accusations, 18

there was so many, there was so much horrible things 19

being said and everything going on, I wrote a very long 20

letter to Jeff Oakes and I, in that letter I explained 21

to him what had happened at North Central. I explained 22

to him trying very hard and I told him in that letter, 23

I believe in at least three or four places you were 24



treated differently. Now I, I sent that letter to Mr. 1

Oakes, it’s his letter, it’s no longer mine. But I 2

did. I made it very plain to him that the treatment 3

was not equal. It’s very strange to me that all of 4

this comes up about a revocation hearing when one of 5

the other agents up there really did the egregious 6

thing about a revocation hearing and I had to step in 7

and stop the whole thing and he was never reprimanded, 8

never said anything, never anything, beyond me. 9

Q. Did you receive any response to that letter 10

that you had sent to Jeff? 11

A. No, I didn’t invite a response. I, it was 12

just, I just said this, I don’t know, I think I said 13

something goofy like I’m tired of living on the dark 14

side, I want to go on and, you know, I don’t want to 15

live… 16

Q. Okay. 17

A. …back in that, anymore. 18

Q. When Mr. Coutz signed your name to that offer 19

and compromise, what was your reaction? 20

A. Well, I became furious and I, I immediately 21

sent out an email and I wanted to know, you know, 22

because he knew. I didn’t. When I saw it, of course I 23

already knew about you, but when I saw my name on it I 24



thought, okay here we go, not my name. I won’t stand 1

for that. So I sent Mr. Coutz an email and I asked 2

him, I said something like, if you know, will you 3

please tell me who put my name on, on this particular 4

offering compromise. And true to form, Mr. Coutz does 5

not put anything in writing. He called me and he said, 6

I did. And I said to him, you knew I was available for 7

signature, why did you do that? There was no reason 8

for this. And he said yes he did know that I was 9

available. And I, I don’t remember, and he said Janet 10

please don’t, but please don’t be angry and I said how 11

can I trust someone who puts my signature on something 12

when they know I’m available to do it myself. How can 13

I trust you? And he said something and I said I got a 14

taxpayer coming in, I’m in an office by myself, I said 15

I’ve got to go. So I thought about it and I so I, when 16

I, when I sent the email I to him I copied Mr. Oakes, I 17

copied Mark Morton who is, I think he’s the deputy 18

attorney for the taxpayer or some deputy or counsel for 19

the, for the Craig Griffith who is the Tax 20

Commissioner. And I copied Jan Mudrinich, I copied 21

Wagoner, I think that’s it. I think I sent it to four 22

people, I’m not sure. 23

Q. (unin) you look through there, I think your 24



information is in there too (unin). 1

A. Oh, okay. 2

Q. (unin). 3

A. Alrighty, I (unin) that’s who, those are the 4

ones I believe I sent it to. And I asked them if Mr. 5

Coutz had the legal right to put my signature on a 6

piece of paper. I wanted to know. I think I said to, 7

I don’t know whatever I said, (Unin), I don’t recall 8

exactly. And then I started thinking about it. Mr. 9

Coutz told me that that really wasn’t a signature 10

because he printed it. He said that really wasn’t 11

signature line because it didn’t say signature down 12

there. He told me it didn’t make any difference 13

whether he did or not, that the only true, the only 14

signature that was needed was that of the Tax 15

Commissioner or his representative. I then started 16

doing a little more digging, I had been heard that and 17

I believe I actually testified to that, that I had been 18

told over and over again. That was in the first 19

hearing, that I had, that I had been told that it 20

didn’t make any difference. But, and I started looking 21

into it and I realized that everything, every other 22

signature on this falls, all of this stuff here is done 23

by a tax, what do they call us, tax… 24



Q. Tax (unin) employee, I believe. 1

A. Tax Division employee. They do all of it. 2

I, I understood that I knew more about this taxpayer 3

and his, his financials, I knew about it more than 4

anybody else so it’s only makes, it only makes sense 5

that every other signature after that is using my work. 6

When they read this, they read what I’ve done. Now, 7

there is always the possibility that I, I’m asked to do 8

an offer and compromise, a taxpayer ask me to do one, 9

I’m going to do it. But if I don’t believe that 10

taxpayer deserves it, I don’t’ sign it. And probably, 11

on the page over there, right here, I’m going to write 12

them a, a note as to why I do not believe they, they 13

deserve it. If they go ahead and sign it, it’s no 14

problem with me, I don’t have to. I don’t have to. 15

I’m saying no. This taxpayer does not disserve this. 16

He has too much money or I will give, as I said I will 17

give my reasons over here as to why, and I was 18

outraged. So I sent a, I sent an email to Mr. Morton 19

and again Mr. Morton and Mr. Mudrinich and Mr. Wagoner 20

and why do I feel like I’m leaving somebody out. But 21

anyway, I sent this all to them, (unin), when I wrote 22

it, when I wrote the, I sent them a letter, I’m sorry, 23

not an email, and I sent a certified copy because I 24



want someone to tell me this answer. If someone can 1

sign my signature I want to know it. 2

THE COURT: Did you get an answer? 3

A. No. 4

THE COURT: Okay. (unin). 5

A. No one answered me. And I said very simply, 6

I will go on until, if I have to speak to ever legal 7

division in the state of West Virginia, I will find 8

that answer. 9

THE COURT: Alright, do you have… 10

A. (Unin) did get an answer from Mr. Mudrinich 11

today. He said (unin). I’m sorry, Sir. 12

THE COURT: It’s alright. 13

A. Let me just qualify my answer. 14

THE COURT: I just… 15

A. Here I got the answer. 16

THE COURT: I was just cutting to the chase, 17

that’s all. Go ahead, Mr. Yates. 18

Q. On that same offer of compromise, when you 19

looked at it more in detail, did you see something that 20

struck you as odd? Like the times, the time, the 21

timeframe, the dates? 22

A. I have to be very honest with you, Mr., I 23

have to be very honest with you. I don’t believe this 24



is the original ones that I sent out. because there’s 1

nothing odd about this one. There’s nothing odd about 2

it. 3

Q. You don’t find it odd that Jeff singed it 4

March 9th and everybody else is on the 12

th? 5

A. I believe you will find that it (unin) the 6

12th. 7

Q. It is the 12th? I’m not seeing it. I’m not 8

sure. I’m a little confused. 9

A. (Unin). The 12th, the 12

th, the 12

th. You’re… 10

Q. I’m talking about the day. 11

A. Oh I’m sorry. 12

Q. It says March the 9th, ’12. 13

A. I’m sorry. I’m sorry. I was just looking at 14

the 12th. Yes, Mr. Oakes had already signed it before, 15

before the, before Jan had signed it and before Mike 16

Coutz has put Tonya’s name and put my name on it. Jeff 17

had already approved it so there was no need, there was 18

no need for my name to be on that if they are right 19

that it only takes Mr. Oakes or the Tax Commissioner 20

then, then he had no, there was no need to put my name 21

on it. None, there was no reason for it. And, and I 22

don’t, I never had that happen before. Never, never, 23

ever, ever. This is brand new. I think it’s willful. 24



I think it’s deceitful that he’s doing this. I, I, and 1

I don’t understand why. And I don’t understand why 2

it’s not stopped. 3

THE COURT: Any more questions, Mr. Yates? 4

MR. YATES: Yeah, actually. 5

Q. Again you’ve talked about payment plan 6

policies, policy states, does not, we’re not in 7

argument as to what the policy states. We, there’s 8

contention, (unin) payment plan versus unsigned payment 9

plan, what the policy says, what’s actually happening. 10

Are there any other policies that you can think of that 11

we have been given and told to follow that nobody seems 12

to be following? 13

A. Well… 14

MS. FULTON: Objection, irrelevant. 15

THE COURT: Yeah, that probably is not very 16

relevant. I’m sure the same can be said for most state 17

agencies. 18

MR. YATES: Okay. 19

THE COURT: Let’s try to ask relevant 20

questions, Mr. yates. 21

MR. YATES: Okay. I’m done. 22

THE COURT: Ms. Fulton, do you have any 23

questions for Ms. Swinler? 24



CROSS EXAMINATION 1

Q. Ms. Swinler, do you know anyone else, any 2

other Tax Department employee who has testified falsely 3

at a hearing and under oath? 4

A. I have no way of knowing that. 5

Q. SO you don’t know whether the stuff that Mr. 6

yates is accused of, whether there’s any other employee 7

that’s ever been disciplined for a similar action? 8

A. Not that I know, not that I recall. (Unin). 9

MS. FULTON: Nothing further. 10

THE COURT: Okay. Anything else Mr. Yates 11

for Ms. Swinler? 12

MR. YATES: Can we take a short bathroom 13

break? 14

THE COURT: Yeah, we’ll take a break. I, 15

okay, it’s good. We’ll go off the record. 16

RECORD PAUSED 17

Okay, we’re back on the record. Mr. Yates, 18

did you want to voice your objection to the, Ms. James 19

testifying telephonically? I seem to recall that you 20

agreed to it at the last hearing but go head and make 21

your record. 22

MR. YATES: I object to her testifying 23

telephonically. I agreed to it when the original 24



subpoena but when you reissued the subpoenas and I had 1

to resubmit them, that to me started everything over 2

and it did not specific that she is to testify via 3

telephone. That is my objection. 4

THE COURT: Okay. Well, I probably didn’t 5

reissue the subpoenas, that was probably my mistake 6

because I think we also talked about it being a 7

continuing obligation to appear. But we’re going to, 8

I’m going to take the testimony of Ms. James over the 9

phone and you’re objection is made part of the record, 10

okay, that’s preserved for the record. What do we need 11

to do to get Ms. James on the phone? 12

UNKNOWN: According to the Grievance Board we 13

need to call her so that they don’t have a long 14

distance charge then she will dial us back. 15

THE COURT: Okay. 16

UNKNOWN: (unin) to me and just ask for the 17

grievance board and they’ll (unin). 18

THE COURT: Connie, say something for me like 19

good morning or good afternoon. 20

Okay, we’re back on the record and Mr. Yates 21

is, has a continuing objection to Ms. James testifying 22

telephonically. We tried to use the conference room 23

phone here at the Randolph County Senior Center and the 24



volume on it was inadequate so Mr. Oakes was kind 1

enough to use his cell phone and the witness has called 2

back in and has joined us telephonically over a cell 3

phone. Ms. James, my name is Ron Reece, I’m the 4

administrative law judge assigned by the Grievance 5

Board to conduct this hearing and also to author a 6

decision in Mr. Yates grievance. You’ve been called to 7

testify but before you do so I’ll need to swear you in. 8

Please raise your right hand. 9

(Witness Sworn) 10

Alright, you’ve been sworn as a witness, Mr. 11

Yates, go right ahead. 12

DIRECT EXAMINATION 13

Q. Hi Connie, my first question for you is, how 14

long have you been with the Tax Department? 15

A. (unin) Tax Department, I started back in 16

2002. 17

Q. 2002, in what capacity? 18

A. Are you referring to what position? 19

Q. Yes. 20

A. (Unin). 21

Q. Okay and did you go from Tax Payer Service 22

Rep and transfer to Clarksburg as a Revenue agent or 23

did you, or, or did you leave the position? 24



A. (Unin). 1

Q. Excuse me? What did you say? I didn’t 2

understand. 3

A. I worked as a representative 2002 to 2003, 4

excuse me 2002 through 2005 and then I quit the state 5

for approximately two years and I started working with 6

the state as an agent back in 2007. 7

Q. Okay, what did you do in the in between 8

times? 9

A. I was a restaurant manager. 10

Q. Okay, when you left Taxpayer Services did you 11

quit, did you get fired, why did you leave? 12

MS. FULTON: Objection, relevance. 13

THE COURT: What’s the relevance, Mr. Yates? 14

MR. YATES: Pattern of history. 15

THE COURT: Alright, go, okay. I will 16

overrule the objection. Go ahead, Ms. James, answer 17

the question, would you please? 18

A. I (unin). 19

Q. Okay so you… 20

A. (Unin). 21

Q. So you resigned, there was no event or 22

instigation that triggered you to leave? No 23

altercation? 24



A. (unin). I left because I made much more 1

money. 2

Q. Okay, there was no issue with an IRS agent in 3

that claim? 4

A. No, I left because I wanted more money. 5

Q. Okay. When you left restaurant management to 6

come to the Tax Department, why did you leave there? 7

A. Because my mom was passing, she was dying and 8

I transferred back up to (Unin) to be closer to her. 9

Q. It had nothing to do with an altercation you 10

had with another restaurant employee? 11

MS. FULTON: Objection, leading and 12

irrelevant. 13

A. NO. 14

THE COURT: Well she answered that question 15

and she’s indicated no, Mr. Yates. Let’s… 16

MR. YATES: Okay. 17

THE COURT: …move on. 18

MR. YATES: Whatever.’ 19

THE COURT: She’s not on trial here. 20

Q. Okay. DO you recall that, when you first 21

started with, as a revenue agent in Clarksburg, were 22

quite friendly, we would have some private 23

conversations and such like that, correct? 24



A. I wouldn’t say private conversations, no. 1

Q. But we, we would talk about stuff more than 2

work, besides work, I mean? 3

A. We would talk about biking, jogging, things 4

of that nature, yes. 5

Q. Okay. And we went to lunch together quite 6

often didn’t we? 7

A. I wouldn’t say quite often, you were only in 8

this office a few times. 9

Q. But when I was there, we did go to lunch 10

together, correct? 11

A. We went to the lunchroom, yes. 12

Q. We went to the lunchroom only? 13

A. Not without other employees, no. 14

Q. Okay bear with us, we’re having a phone call-15

waiting issue. We’re (unin). Okay. 16

THE COURT: What, let me interrupt you, 17

excuse me. But you worked with Ms. James, could you 18

just lay a little bit of foundation for me because I’m 19

not that familiar with it. You worked with her for a 20

period of time? Can you just give me… 21

MR. YATES: Right. Right, were there about 22

the same period of time. I would come to Clarksburg 23

and you know we would talk and work together. 24



THE COURT: Can you give me the years, the 1

years, do you know? 2

Q. Ms. James, when, when did you become a 3

revenue agent? 4

A. I became an agent October of 2007. 5

THE COURT: So about, you know around October 6

’07 to, when did you leave, June of ’08? When did you 7

go to Morgan Town? 8

MS. SWINLER: ’09. ’09. 9

THE COURT: Okay, that’s close enough. 10

MR. YATES: ’08, ’09 ish. 11

THE COURT: That’s close enough. 12

MR. YATES: That neighborhood. 13

Q. When we would go to lunch, who else would 14

join us? 15

A. Whoever (unin) lunch room. 16

Q. We never went to any restaurants? 17

A. Not without others, no. 18

Q. Okay, when we would go to restaurants, what 19

others would join us? 20

A. From my recall, we’ve gone to lunch together 21

with others, that was two times and I would say, 22

everyone, everyone in the office if I can remember 23

correctly. 24



Q. Okay. Do you recall that I stopped going to 1

lunch with you, correct? 2

A. No. 3

Q. You don’t recall that? 4

A. No, you don’t come to this office to go to 5

lunch with you. 6

Q. I mean during that time period up to about 7

late ’08, middle of ’09 when Mr. Coutz was still coming 8

to the North Central Regional Office every day. 9

A. And your question is, when did you stop going 10

to lunch with me or others? 11

Q. Yes, with you, with others. 12

A. I can’t tell you that, I have no idea. 13

Q. Did I or didn’t I, did I not? 14

A. I’m not sure (unin) answer is no. 15

Q. Okay. Did you continue to go to lunch with 16

Mike Coutz by yourself? 17

A. No, I’ve never gone to lunch with Mike Coutz 18

by myself. 19

Q. You, okay. So it’s completely coincidence 20

that you and him would leave at the lunch time by 21

yourselves together and return together by yourselves? 22

A. (Unin) the answer is no, that’s not so. 23

Q. One moment please. 24



THE COURT: Any more questions for Ms. 1

James? 2

MR. YATES: Yeah, give us a moment. 3

THE COURT: Well let’s, let’s move it 4

forward. 5

Q. You at no time went to lunch by yourself with 6

Mr. Coutz? 7

A. That is correct, 100 percent correct. 8

THE COURT: I think that’s been asked and 9

answered, Mr. Yates. 10

Q. Okay… 11

THE COURT: You can argue credibility when 12

you do your submissions, Mr. Yates, I just want to 13

remind you of that. 14

A. And also, I’d like to add, 90 percent of the 15

time (unin) 2008 to 2009, I didn’t even take lunch, I 16

worked through my lunch. 17

THE COURT: Okay, thank you Ms. James. Do 18

you have any more questions? 19

MR. YATES: NO, no, no more questions. 20

THE COURT: Alright, Ms. Fulton, do you have 21

any questions for Ms. James? 22

MS. FULTON: No I don’t. 23

THE COURT: Okay, thank you, Ms. James, have 24



a good day. 1

A. Okay, thank you and bye. 2

THE COURT: Okay, what’s next, Mr. Yates? 3

MR. YATES: Give, give me, let’s go ahead and 4

go off the record for a minute so I can consult with… 5

THE COURT: MS. Swinler? 6

MR. YATES: Yes please, please, please. 7

RECORD PAUSED 8

THE COURT: We’re back on the record. Okay, 9

we’re back on the record and while we were off the 10

record the parties agreed to a June 18th postmark date 11

for the submission of their proposed findings of fact 12

and conclusions of law. Mr. Yates, did you have any 13

other evidence you wanted to present this morning this 14

in this grievance? 15

MR. YATES: No. 16

THE COURT: Okay, the grievant rest its case 17

in chief. I think I heard while we were off the record 18

that Ms. Fulton indicated that she wanted to call Mr. 19

Oakes in rebuttal, is that correct? 20

MS. FULTON: Yes. 21

THE COURT: Okay. Well, Mr. Oakes, let me 22

swear you in again please. 23

(Witness sworn) 24



THE COURT: Alright, thank you. Go right 1

ahead Ms. Fulton. 2

DIRECT EXAMINATION 3

Q. I’m handing you what was previously admitted 4

as Joint Exhibit 1. It’s a copy of a proposed 5

settlement agreement with an attachment and I’m 6

referring you specifically to the Compliance Division 7

payment plan policy. Do you see that part where it’s 8

written an arrow? 9

A. Yes. 10

Q. That was read earlier, the following 11

guidelines that are used in all cases (unin). Well let 12

me back up. Do you know the origin of that policy? 13

A. Yes I do. 14

Q. What is it? 15

A. I wrote it. 16

Q. And that (unin) that was read into the record 17

earlier, what did you intend by that sentence? 18

A. That we would not deviate from this policy 19

and that it would be used uniformly by all, all 20

employees in my charge. 21

Q. Now, were you present to hear the testimony 22

that some payment plans could not be entered into 23

GenTax? 24



A. Yes. 1

Q. And you heard him say that if it were more 2

than 180 months, I believe, that it couldn’t be entered 3

(unin). 4


Q. In the situation where you need a payment 6

plan that is longer than the 180 months, what is, how, 7

how is that to be done? 8

A. We have a document, it’s, it’s actually I 9

believe a Word document, it’s a template. It contains 10

all of the relevant information and is comparable to 11

our GenTax payment plan in terms and conditions, for 12

instance and space to document all of the liability 13

covered by the (unin). 14

Q. And, and then how is that executed to you? 15

A. It would need to be produced manually by the 16

agent or by the agent’s supervisor. You fill in the 17

pertinent information, how much does somebody owe, you 18

know. Do they agree to the terms and conditions and 19

there are places for both a signature of the debtor and 20

then a signature of a department representative. 21

Q. And then where is this, where is this stored? 22

A. You can still scan it into our integrated tax 23

system and attach it to the case. And then still 24



indicate on the, in the collection, in the collection 1

page that there is a payment plan. 2

Q. And in such a plan do the terms and 3

conditions specifically provide for a specific amount 4

(Unin). 5

Q. Yeah, (unin). We don’t have the ability to 6

advertise those manual plans. Obviously, but the 7

taxpayer stipulates and agrees that interest will 8

continue to accrue on the unpaid balance as well as any 9

principle or (unin). So they know ahead of time that 10

the balance is still going to accrue additional, 11

additional (unin) while they’re making their payments. 12

Q. I am now handing you what’s been entered as 13

Grievant’s Exhibit 3, the document that says account 14

information at the top Can you identify what that 15

document is? 16

A. Yeah, it’s an old, I believe, (unin) access 17

program that was developed sometime before my tenure 18

as, as division director of the compliance division, 19

that served to document receipts of money that revenue 20

agents collected from, from debtors. 21

Q. And is this from, is this form still in use? 22

A. I believe that it’s been recently overhauled 23

and moved to a different location. I imagine that it 24



looks somewhat different but I haven’t seen it. 1

Q. And… 2

THE COURT: Ms. Swinley? 3

Q. …with respect to the… 4

THE COURT: Ms. Swiney, excuse me Ms. Fulton, 5

please don’t interrupt. 6

MR. YATES: I wasn’t saying anything. 7

THE COURT: No, Ms. Swiney. 8

MR. YATES: Oh. 9

THE COURT: I think, maybe I’m not hearing. 10

I’m sorry if I, but don’t interrupt because it’s not a 11

conference, it’s a hearing, okay? 12

Q. Referring you to the section that says 13

payment plant information, it has a place, defaulted 14

(unin), and informal and it’s marked yes? 15

A. Correct. 16

Q. Are there any, can this form properly be used 17

to indicate an informal agreement? 18

A. NO it cannot. 19

Q. Why is that? 20

A. Because it was superceded by my policy that 21

all payment plans be signed and in writing. 22

Q. We’ve had some testimony today and previously 23

about (unin) printing some people’s names onto forms 24



for offers and compromise, have you taken any action 1

regarding that? 2

A. Yes, I’ve addressed that issue in writing 3

with Mr. Coutz and he’s been instructed never to do 4

that again. 5

Q. And can you tell us why you did that? 6

A. Because it’s not necessary for him to print a 7

person’s name on that form other than his own and it’s 8

confusing for people, it can be construed as a 9

signature and it, he just doesn’t need to do it. 10

Q. And is it correct to say that if a, if 11

(unin). Do you know why the taxpayer in the revocation 12

hearing this proceeding arose from, might have been 13

given letters of good standing in order to, (unin) 14

letters of good standing from the Tax Department? 15

A. Yeah, (Unin). ABC has an annual (unin) 16

process and ABC requires that a taxpayer or that a, 17

that a permit applicant be in good standing with the 18

Tex Department before they’ll issue (unin). Now, if 19

we’ve got a permit applicant on a payment agreement and 20

have promised to pay, you know as, as made under their 21

signature, then we will authorize the alcohol beverage 22

folks to go ahead and issue that permit. It is a 23

requirement though that they be on a payment plan and 24



be current on that plan, be compliant with all the 1

terms and condition (Unin). 2

Q. And do you know why this taxpayer may have 3

gotten one when he didn’t have a (Unin) plan? 4

A. Well it’s, I’m sorry, yeah it’s the, it’s the 5

process as dictated by me is that either myself or 6

Michael Coutz, the assistant director, now acting 7

director, would need to approve the issuance of that 8

good standing certificate in those cases where there is 9

a payment plan. And so we have to, so usually what 10

happens is the agent will request that we issue that 11

because they’ve got them on a payment plan. And, you 12

know, unless I get that representation, we’ll go ahead 13

and allow it because I trust all my agents to be 14

credible until proven otherwise. 15

MS. FULTON: I don’t have (Unin). 16

THE COURT: Okay, Mr. Yates, do you have any 17

questions for Mr. Oakes? 18

MR. YATES: (Unin). 19

CROSS EXAMINATION 20

Q. You mentioned that you told Mr. Coutz not to 21

apply our names or anybody’s else’s name but his own to 22

the documents? 23




Q. Okay, did you give him any, a disciplinary 1

letter or did you just, you know, tell him don’t’ do it 2

again? 3

A. I did it in writing. 4

Q. You did give it in writing? 5

A. Yes. 6

Q. It is in his personnel file? 7

A. No it is not. 8

MR. YATES: Nothing further. 9

THE COURT: Alright. Anything else, Ms. 10

Fulton, or Mr. Oakes? 11

MS. FULTON: NO. 12

THE COURT: Alright, anything else Mr. Yates 13

for the record before we close the record on your 14

grievance? 15

MR. YATES: No. 16

THE COURT: Like I said, you can make your 17

argument, you know, in your proposals as well, okay? 18

Anything else, Ms. Fulton? 19

MS. FULTON: I think that’s it. 20

THE COURT: Alright, thank you. 21

(END OF RECORDING) 22

YATES_Transcript3_2011 1703-DCR 2012-05-17 Hearing

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Transcript of YATES_Transcript3_2011 1703-DCR 2012-05-17 Hearing