ALC-Claims Review
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to order, and members, just a little housekeeping here. i
want to tell the members in the audience unless there are questions from the members
that they want something to discuss everybody's had their day in court with a claims commission so unless members have questions or want to ask someone a question we're not going to have anyone come up to the table except for uh miss ervey so uh but if but if a member has a question and wants one side or the other to come up and testify uh we will clearly do that for the for the membership But if not, the process is everyone's had their day in court or their day at the Claims Commission to say what they had to say.
And if there's something that you want to do, and I don't know if you guys all have this orange sheet, but the motions that we have are very clear and defined what we can do, and it's a little bit different than
a lot of committees. But anyway, with that, we're
Speaker 9
7:22
going to start with item B-1. Ms. Shuba? Okay. This is Fidelity Information Services versus the Arkansas Department of Finance and Administration. This is a reissuance of warrant dated November 2016, payable to Fidelity Information
Services in the amount of $19,308 from the Arkansas Department of Finance and Administration. On August 22, 2019, the Claims Commission unanimously allowed the claim for the full amount of $19,308. Are there any questions
Speaker 10
7:45
from the committee? Item B1. Do I have a motion to affirm the
ruling of the Claims Commission? I have a motion and a second to affirm the ruling of the Claims Commission. All those in favor say aye. Opposed say no. Motion carries. Item C1.
Speaker 9
8:12
This is Hoda Hagris versus the University of Arkansas for Medical Sciences. This claim was filed by Hoda Hagris against the University of Arkansas for Medical Sciences for salary due in the amount of $22,753.07. UAMS filed an answer admitting liability in full. The Claims Commission unanimously allowed the claim for the full amount and referred the award to the General Assembly for review pursuant to Arkansas Code Annotated Section 19-10-215-B.
Mr. Herbie, do you have anything you'd like to add to that? No, sir. Are there any questions from the committee? Seeing no questions, do I have a motion to affirm the ruling of the Claims Commission? I have a motion and a second to affirm the ruling of the Claims Commission on item C-1. All those in favor say aye. Opposed say
no. Motion carries. item d1 has been removed from the agenda today moving on to item e item e1 mr james lancaster
Speaker 9
9:21
sought forty four thousand seven hundred and fifty dollars in damages initially against the office of professional conduct and judge kathleen compton later claimant also made multiple claims of wrongdoing against mr stark ligan the executive director of the office of professional conduct claimant's deceased brother was involved in litigation prior to his death claimant had an agreement with his brother that claimant would receive 15 percent of the proceeds from a successful lawsuit in reimbursement of expenses he incurred for the care of his brother claimant's brother died prior to the distribution of funds through the
lawsuit and the funds were distributed through probate claimant did not receive any funds through probate first claimant contested the probate decision at the circuit level claimant did not receive a favorable decision At the appellate level, the Supreme Court dismissed claimant's motion to vacate the lower court judgment and also subsequently denied his motions for reconsideration. Second, claimant submitted a complaint against his brother's attorneys to the Office of Professional Conduct. Claimant alleged that the Office of Professional Conduct and Mr. Starkligan handled the complaint improperly.
The Claims Commission denied and dismissed the claim as to all respondents. The Claims Commission denied any purported claims against Judge Compton. The Commission found that it lacked jurisdiction because she is not an agency, department or institution of the state of Arkansas. The Commission denied claims against Mr. Ligon because it found that it had no authority to fire or disbar any person. The Commission also found that Mr. Ligon is absolutely immune from suit pursuant to Section 3D of the procedures of the Arkansas Supreme Court regulating professional conduct of attorneys at law.
Finally, the Commission also denied claims against the Office of Professional Conduct. conduct. With regard to claimant's request to obtain review of the OPC committee decision, the Commission held that it had no authority to order such relief. Furthermore, the Commission also found that claimant failed to state a claim upon which relief could be granted pursuant to the Arkansas Rules of Civil Procedure Rule 12 . Finally, the Commission also denied claimant's motion for reconsideration. Claimant appeals the
decision. members you've heard item e1 lancaster versus the office of professional conduct do i have any
questions senator ross you recognize for
Senator Terry Rice
Unverified
11:40
questioning on this one i read over it last night
and i understand ruling whether you agree with or not that there was absolute absolute immunity is a ruling what would be the option my understanding is this was the judge ruled this brother's funds
what was the term into what court yes sir if I understand your question
Speaker 26
12:11
correctly Mr. Lancaster asked for a ruling from the probate court and did not receive a favorable ruling. The funds were put in probate. Yes, sir. And I think Mr. Lancaster
Senator Terry Rice
Unverified
12:24
had contested that that was the contest as to whether that was legal to do. I know that he objected to the way
Speaker 31
12:36
the probate proceeding went and that that was the subject
Speaker 33
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of his appeal. That is not abnormal for that to be
Speaker 26
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done? That may be the case. I do not have any experience with probate court proceedings myself, but I understand that that is probably not unusual. Okay, thank you.
Ms. Hurray, so the funds went to probate, probate paid out, debts, or do you have any idea what happened with those funds?
Speaker 26
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The specific pleadings involved with the probate court proceeding, the Claims Commission was not provided with an entire copy of those, but because the ruling by the Claims Commission was based on jurisdiction and failure to state a claim, we never got to the substantive part of his claim and also based upon the immunity of Mr. Ligon. Are there
Speaker 39
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any other questions from the committee? Is there anything else you'd like to add? No, sir.
Seeing no further questions from the committee, do I have a motion? I have a motion to affirm the ruling of the Claims Commission for Senator Bloods. So do I have a second? I have a second for Senator Irvin. All those in
Speaker 9
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favor say aye. Opposed say no. Motion carries. Item E-2. This is Tandura Jean Hadley versus the University of Arkansas for Medical Sciences. Ms. Tandura Jean Hadley initially sought unspecified damages against UAMS for injuries
she sustained when the patient tower elevator doors allegedly closed on her claimant later clarified that she went to the hospital and that respondent paid the bill claimant sought damages for her pain anguish and suffering in the amount of ten to fifteen thousand dollars uams denied liability a hearing was held and the commission subsequently issued an order denying and dismissing the claim the commission held that it did not have any evidence to determine that uams was negligent in the maintenance of the elevators. Claimant Appeals.
Sir, anything the Claims Commission would like to add?
That was well summarized, sir. Any questions from the committee? Seeing no questions, do I have a motion? I have a motion to affirm the ruling of the Claims Commission. Do I have a second? I have a second. All those in
Speaker 9
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favor say aye. Opposed say no. Motion carries. Item E3. Item E3 is Doris Benicki Moore versus the Arkansas Public Employees Retirement System.
Ms. Doris Moore initially sought $45,530 from the Arkansas Public Employee Retirement System for retroactive payment of disability benefits, but later amended that figure to $15,000. dollars. Claimant left state employment in January 2014 and alleged that she was not aware that an option existed for disability retirement. Claimant alleged that APERS never provided any paperwork or brochures to advise her regarding that option. She learned of disability retirement in September 2018, applied, and was approved. She then sought retroactive
payment of disability benefits for the period between January 2014 and September 2018, but was denied. APERS denied the claim, arguing that disability annuity is only effective on the first day following the approval of the claim. In the Claims Commission case, APERS moved to dismiss, arguing that the Claims Commission did not have
Speaker 10
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jurisdiction over claims against APERS arising under the Arkansas Public Employees Retirement Systems Act. The Claims Commission agreed and dismissed the claim. Claimant appeals.
Speaker 26
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Anything the Claims Commission would like to add? Yes, sir. The only thing that we would add is that claimant's claim was based upon her
Speaker 50
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entitlement to disability benefits, which is clearly within the APERS Act, which is outside the jurisdiction of the Claims Commission. Any questions
from the committee? Seeing no questions from the committee, do I have a motion?
Speaker 54
16:54
I have a motion to affirm rooting in the Claims Commission.
Got a motion and a second. All those in favor say aye. Aye. Opposed say no. Motion carries. Item E-4. Item
Speaker 9
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E-4 is James Suber, Jr. versus the state of Arkansas. Mr. James Suber, Jr. sought $10,000 in damages from the state of Arkansas assessor in land management regarding a special warranty deed giving two other individuals ownership of land in which claimant claims an ownership interest. The State of Arkansas moved to dismiss the claim
stating that there is no entity known as the State of Arkansas Assessor in Land Management. Respondent argued that it was not a party to the deed and that any claim for fraudulent or mistaken conveyance would hence not lie against it. Claimant did not file a response to the motion to dismiss. The Claims Commission agreed with respondents' arguments and entered an order dismissing the case, noting that claimant may pursue remedies through a court of general jurisdiction if he believed that he was the rightful owner of the parcel. The Commission also denied a motion for reconsideration. Claimant appeals.
Is there anything the Commission would like to
add? No, sir. Are there any questions from the
Committee? Seeing no questions from the Committee, do I have a motion? i have a motion and a second to affirm the ruling of the claims commission all those in favor say
Speaker 9
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aye opposed say no motion carries item e5 this is lily mcmullin versus the arkansas state board of collection agencies miss lily mcmullin sought 25 000 from the arkansas state board of collection
agencies miss mullin obtained a judgment against a collection agency precision recovery analytics Inc. for violation of the Fair Debt Collection Practices Act. Claimant attempted to satisfy part of the judgment by trying to collect on the surety bond that Precision had posted with the Arkansas State Board of Collection Agencies. Claimant sent demand letters to ASBCA as well as bondholder Hartford. Claimant also filed a claim with the commission. ASBCA moved to dismiss the claim. After considering the pleadings and hearing the testimony and arguments of both
parties, the Commission granted the motion to dismiss based on claimant's failure to exhaust administrative remedies and
Speaker 10
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lack of jurisdiction. Claimant appeals. Is there anything the Claims Commission would like to add?
No, sir, but we're happy to take any
Representative Jeff Wardlaw
Unverified
19:28
questions. Are there any questions from the Committee? Representative Wardlaw, you're recognized. Thank you, Mr. Chair. Can you go
through what those remedies would have been for the claimant? Because it sounds like she exhausted almost every remedy she had.
Speaker 31
19:41
Well, as the commission found that she did not exhaust her remedies by obtaining a decision from the State Board of Collection Agencies, and that was detailed in paragraphs, I think, 28 through 31, that there are steps she could have taken in order to get an agency decision which she then could have taken an appeal of under the APA to circuit court but she did not get an agency
decision did not appeal it under the APA and thus did not exhaust her administrative remedies okay thank you does the claimant
have the right to go back and do that i believe that there are time limits under the apa
Speaker 31
20:31
whether or not she would be barred at this point i do not know i mean you know if we've got if we're making people put
surety bonds up there's a reason we want them to get we want somebody to get paid right yes but as i understand
Speaker 26
20:52
adkins from the ag's office may be able to lend more clarity to it But as I understand in this one, the surety bond itself was not put up for Ms. McMullin's and the Cook Law Firm's benefit. It was put up for another benefit, I believe,
or to protect someone else. Okay. Are there any other
Senator Cecile Bledsoe
Unverified
21:14
questions from the committee? Senator Bledsoe, you're recognized. Thank you, Mr. Chair. I was just wondering who tells these people that come before things like this, the claims commission, of the rights that they have while they're going through this process.
Is there something that, I mean, should they automatically know what to do? I mean, how do they know these things if someone is not
Speaker 26
21:39
advising them? Well, in this case, ma'am, Ms. McMullen was represented by counsel from the start. and there is a presumption under Arkansas
Senator Cecile Bledsoe
Unverified
21:51
presumed. So you're saying that sometimes they don't know what to do, but they're represented by an attorney most of the time,
but if that attorney doesn't tell them, that's
Speaker 50
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not the fault of... Well, and I'm making no statements as to any
Speaker 26
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communications between her attorney, But what we know in this situation is that an APA appeal was not taken up, and that's how we landed
Senator Cecile Bledsoe
Unverified
22:25
in this situation. So if someone appears to need advice, an attorney is recommended?
Speaker 50
22:31
I get calls frequently from people saying,
Speaker 26
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do I need an attorney to bring forth a claim at the Claims Commission? And I say, no, you are perfectly entitled to bring a claim pro se. We have, I would say, over half of our claims are brought by pro se claimants. But I do tell them that under Arkansas law, they are held to the same standard as an attorney. There's numerous Supreme Court case law to that effect,
and so they are presumed to know the rules of civil procedure. They're presumed to know what claims commission procedures are, and I am always happy to answer questions, and I get calls from claimants all the time saying, okay, what's going to happen at a hearing? And I'm happy to answer process questions, although the claims commission and I cannot give legal advice to claimants. Okay. Thank you very much. Are there
any other questions from the committee? Representative Ward-Law, you're recognized. Thank
Representative Jeff Wardlaw
Unverified
23:31
you, Mr. Chair. I need more clarification on a surety bond.
Did the collection agency not have to have a surety bond to protect all of its customers, or is it just for one customer? I'm trying to see if I heard you correctly a while
Speaker 26
23:47
ago. No, and that is a good question. If the committee is so willing, I think Mr. Adkins could lend more light on the surety bond issue, but that's up to you all. so mr atkins
you please come forward i'll just come forward yeah
Speaker 78
24:04
good morning so the if you look at the i don't know what records you have in front of you um
Speaker 80
24:19
but the actual excuse me could you state your name
Speaker 78
24:23
for the record who you represent I'm Assistant Attorney General Reed Adkins and I represent the Arkansas State Board of Collection Agencies in this matter and I entered an appearance in the Claims Commission on behalf of the board and so with the surety bond the
board has a statute that allows it to promulgate regulations for the bonds and to how to collect and disperse the funds. The specific reg regulation that the board promulgated at this time was for, it was, the title of it says to collect and disperse the bond for clients. And so the way the board interpreted that was the clients were the creditors
who hired the collection agencies to collect monies on behalf of the creditors. Okay, so
Representative Jeff Wardlaw
Unverified
25:16
hold on. So if I heard this right, this person made this claim because a collection agency broke the rules. She was told that that was right, and now she has no remedy to get against them because this surety bond is not there to protect her. It's there to protect their other clients.
Speaker 73
25:35
Did I hear that correctly? It's there to protect the creditors.
That's right. In this situation, she's a creditee, not a creditor. Yes, sir. So what's there to protect them when these people break the rules? So
Speaker 78
25:53
the Fair Debt Collection Act, Practices Act, is there. And she went through circuit court, got a judgment against the collection agency that went after her. And that is the process that is there for her to seek a remedy, and she did. As far as this matter, kind of as was summarized, there's a specific process, the regulation, and then she would have to get an order from the board and then go through the APA to challenge the board's implementation of its own governing law.
and and that's kind of our argument in this case is Mr. Chair seems to be someone in the audience that disagrees
I don't know who he is but could we get him to the stand to see um is there is there is Ms. McMullen here or somebody representing her Mr. Wood would you come up so thank you represent board law I appreciate that so do you would you state your name for record who you represent and then if you need a question re-ask yes my name is Jeff Wood and I'm
Speaker 89
27:09
here for Lily McMullen in this claim and also for the Cook Law Firm in the next claim these are related matters if I if I could address the question the the the whole point of the claim that Miss McMullen has brought is that the State Board of Collection agencies failed to amend the language required in the bonds and this this case was this claim was dismissed by the claims Commission for lack of jurisdiction, claiming that it should have properly gone through the channels of the Administrative Procedures Act.
Our argument is that sovereign immunity, decided by the Supreme Court last year in the Andrews case, ruled that the state of Arkansas and its state agencies cannot be a defendant in circuit court. And so Ms. McMullen could not pursue a claim against the State Board of Collection Agencies in the circuit court as the Administrative Procedures Act requires. After the Andrews decision came down, a decision called Heard changed that just a little bit and qualified it and said, if it is
an appeal of a decision by a state agency, it can follow the APA. This is not an appeal of a decision by the State Board of Collection agencies. This is a direct action against the State Board of Collection agencies for failing to require new language in the collection bonds had they required new language in the collection bonds consistent with the 2009 law act 1455 passed by the legislature miss mcmullen would have had a valid claim on the surety bond that was posted but the state board of collection agencies was using language that
was even older than that was from the 1999 law that a letter from the attorney general's office in 2014 acknowledged that the language used in the surety bonds is based on a 10-year-old statute, the language of which had been specifically stricken by the legislature in 2009. So our claim is against the collection agency board for failing to follow the direct action of the legislature and the will of the legislature, the intent of Act 1455 in amending
the bond language. Thank you for that answer. Senator Irvin, you're
recognized for question. so can you describe why you settled at 25 000 for the amount claimed well
that is the maximum of the bond the judgment that miss mcmullin received
was over 63 000 in total between actual damage almost all of which was actual damages or some amount actually some small amount of that is
so actual damages was only five i have it here actual damages was 5 000
Statutory damages, $1,000. Damages for negligence, $10,000. Damages for invasion of privacy, $10,000. And attorney fees and costs, $37,666.90. That's correct. Almost all of that is
actual damages, though. Well, no, I'm sorry. Actual, I'm
looking at this language. I understand. The language in front of me is pretty clear. Actual damages was $5,000.
So I'm looking at a total, I suppose, that went to the client of $26,000. And then attorney fees and costs was $37,6690. Is that correct? You have
Speaker 98
30:45
read those numbers correctly. Yes. Yes.
So of the $25,000 amount claimed against this board, how is that going to
be dispersed between you and the client?
I don't have our representation agreement with me. I don't know. Ms. McMullen hired our firm in 2013 to assist her six years ago. I don't remember what the terms of that were certainly certainly some part of
Speaker 89
31:17
that will would be paid to to the law firm for representing her would it be
about the same percentages that we see here with 26 going to the client and 37 660 so that's a percentage would it be along
Speaker 89
31:35
those same well we would we would certainly not seek any more than what the
court awarded just despite the I mean I'm talking about the percentage of breakdown between you and the client would that follow the same thing as to what you're trying to receive under this claim that you're bringing before us today or before the claims commission that they denied would that be the same type of a percentage breakdown to be quite honest senator i i'm not
prepared to answer that i really have no idea okay i wasn't expecting thank you thank you for the question
does the claims commission have anything else they'd like to
Speaker 26
32:10
add yes sir i would just note that that these claims were filed almost four years before the Andrews decision was handed down and that in March of 2014, instead of filing at the Claims Commission, if Ms. McMullen and the Cook Law Firm had sought a decision from the State Board of Collection Agencies as to what they felt the State Board of Collection Agencies had done wrong, they could have taken an appeal to circuit court on that decision under the APA and gone that route,
and they may have gotten some relief from that way. But instead, they tried to circumvent the APA by bringing a direct action to the Claims Commission, and
Speaker 89
32:53
the Claims Commission has held that that is not proper. Senator, could I respond to that just briefly? Just briefly. I don't think it's quite fair to say that as a case dragged out and the Supreme Court then ruled that the way that the Claims Commission would like for the claim to have gone, that that way is improper and, quite frankly, unconstitutional, that Ms. McMullen should have pursued an unconstitutional route
before knowing that it was unconstitutional. The Supreme Court has spoken, and it is an active case when the Supreme Court spoke and ruled that there was no procedure for her to follow in the circuit court. It would have been thrown out. Okay. Any other questions from the
Speaker 78
33:34
committee? If I may make a response to that as well. Yes. Sorry, I should have let you do that. Thank you. I appreciate it. So the Supreme Court has also spoken, as you mentioned, in the Arkansas Oil and Gas Commission to be heard,
that what they did was the court, in that case it was an APA appeal, and the circuit court held that it was unconstitutional to appeal an agency decision through the Arkansas Administrative Procedures Act. And the Supreme Court reversed and remanded that back to the Circuit Court, stating that it's not unconstitutional to bring an APA appeal through the APA. And so the APA, which allows an individual to seek judicial review for violation of constitutional statutory provisions in excess of the agency's statutory authority made upon unlawful procedure affected by other error of law,
not supported by substantial evidence of record or arbitrary, capricious, or characterized by abuse of discretion by the agency in their decision. And so our position is that they still underheard had an ability, even after Andrews, that the APA is alive and that an APA appeal could have been brought if they sought an order from the agency. and so, therefore, they did not exhaust their administrative remedies through the APA.
Okay. Any other questions from the committee? More? Seeing none, do
I have a motion from the committee? I've got a motion to affirm the ruling of the Claims Commission and a second. All those in favor say aye. Aye. Opposed say
no. No. Motion carries. Moving on, item E6. Okay, this is the
Speaker 14
35:42
Cook Law Firm versus the Arkansas State Board of Collection Agencies.
Speaker 9
35:46
Cook Law Firm sought $13,831.23 from the Arkansas State Board of Collection Agencies. This claim arose from the judgment against precision in the previous claim, wherein claimant was granted attorney's fees and costs. After considering the pleadings and hearing the testimony and arguments of both parties, the Commission granted the motion to dismiss based on claimant's failure to exhaust administrative remedies and lack of jurisdiction. Claimant appeals. Does the Claims Commission have anything to add?
Speaker 39
36:17
Yes, sir. Only that this is the companion case to McMullen that the committee just rolled on. To EPA. Yes, sir.
Are there any other questions? Are there any questions from the committee? Seeing none, I have a motion for Representative Waterloo to affirm the ruling of the Claims Commission. Do I have a second? And a second. All those in favor say aye. Opposed say no. Motion
Speaker 9
36:45
carries. Item E7. Item E7 is Tommy Freeman versus the Arkansas Department of Transportation.
Tommy Freeman sought $1,098.75 from the Arkansas Department of Transportation. This amount was the estimated repair costs for property damage sustained by her vehicle when it hit a pothole. The Arkansas Department of Transportation moved to dismiss, denying it was negligent. The department argued that historically, recovery was not permitted unless a claimant could show that the department, one, had knowledge of the pothole, and two, failed to respond in a reasonable amount of time to repair it. Claimant responded that the size and depth of the pothole indicated that the department
did not try to repair the pothole before it could cause damage to vehicles. She furthermore contended that the respondent's appearance on the news on June 25, 2019, indicated that they had knowledge. The commission granted the department's motion to dismiss, but noted that the claim was dismissed without prejudice. The commission held that encountering a pothole is a risk assumed by the public as part of travel. In the absence of evidence that respondent had prior knowledge of the pothole,
and failed to repair it in a reasonable amount of time the existence of a pothole by itself was insufficient to establish liability claimant appeals
Senator Terry Rice
Unverified
38:07
senator rice you recognized thank you mr chair i would just offer this to somebody's here for that because we have these
brought from time to time to this committee and there's one who has had rims cracked and and damage over a period of time for multiple times.
I feel for them, and the best that we can do. We have tried to come up with monies for maintenance, but it is not a perfect system, and I have moved to affirm the ruling of the Claims Commission. I have a
motion to affirm the ruling of the Claims Commission. Do I have a second? And a second. All
those in favor say aye. Opposed say no. motion carries moving on item e8 what e8 has been removed
moving on to f this is the department
of corrections members yes sir no sir there was no members that had questions for you thank you moving on to item f so normally we batch these i have a motion to batch is there any issue with anybody batching these corrections denied and dismissed claims i have a motion to batch them and a second all those in
favor of batching say aye opposed say no motion carries these items will be batched please proceed Okay. Does the Claims Commission have anything to say on any of these
Speaker 26
39:50
items? No, sir. We would encourage the subcommittee or would be in favor of all of
these orders being affirmed. Sure. Members, I know we've had plenty of time to read these and study them, so I'm seeking a motion now to affirm the batch of all four.
i got a motion do i have a second who second okay so i have a motion and a second from dan douglas yeah so i have a motion to approve and a second right uh all those in favor say aye opposed say no motion carries sorry members hey i messed that up i said uh i kept saying there was four of them there are 14. So just for clarifications with my mess up, I have a motion. We did batch them all. So 1 through
14. I have a motion and a second from Representative Douglas. All those in favor say aye. Aye. Opposed say no. Motion carries. Thank you.
Speaker 16
40:53
Are there any other business? Seeing none, we are adjourned. Thank you, sir.
Unknown speaker
41:36
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
You
Agenda
A. Call to Order
B. Reissuance of Warrant/Unpaid Bill
C. Awarded Claim
E. (Other) Denied and Dismissed Appealed by Claimant
F. Corrections Denied and Dismissed Appealed by Claimant
G. Other Business
H. Adjournment
Documents
Speakers
Speaker 3
Senator Bart Hester Chair
Unverified
Speaker 9
Speaker 10
Senator Terry Rice
Unverified
Speaker 26
Speaker 31
Speaker 33
Speaker 39
Speaker 50
Speaker 54
Representative Jeff Wardlaw
Unverified
Senator Cecile Bledsoe
Unverified
Speaker 78
Speaker 80
Speaker 73
Speaker 89
Senator Missy Irvin Chair
Unverified
Speaker 98
Speaker 14
Speaker 16