Thursday, October 1, 2009

Part 4 of Utah County ethics hearing: Q & A, contention, the discussions afterward, and some initial thoughts

Guy whose name I didn’t catch – Prefaces comment saying either Karl Snow or John Valentine can answer the question. We have current per diem for legislative work. When did lobbyist gifts enter the picture and become allowed? (Neither Snow nor Valentine really answered the question which is actually kind of interesting. Was there ever a rule against accepting gifts from special interests? Bribery has existed as long as the union—the position of paid lobbyist is fairly new…40-50 yrs maybe? Was permission ever expressly granted for legislators to accept gifts, or was it always assumed they could accept whatever they wanted for their “sacrifice” and restrictions are the new trend?) (Also, the crowd in back got restless here and there was a lot going on in the room, so I think I missed some of what Snow said.) Karl Snow - Lobbyists have a special interest interest. They are not just “being kind” when they throw around all that money. (Here the shrill lady mentioned in the last post bellows piercingly, ”Hold the mike closer!” when she should have yelled at her friends in the back to shut up.) They expect a return on that investment. I’d like to invite the legislators to reply as well. (Rumble, rumble from the talking crowd at the back. They got extra mad whenever gifts came up.)

Ned Hill asks Senator Valentine to come up, but it is not 100% clear what is going on for a moment because all the questions until now have been from the cards and regular crowd members and the legislative bunch in back are talking. As Valentine comes forward, John Talcott rudely shouts,”Who are you?” Ned Hill replies with Senator’s name and position. Talcott grumbles about special treatment. John Valentine – (Valentine’s whole little speech and tone were condescending and thus extremely unconvincing. The “pity the poor legislator” tact comes off hollow.) This is to punish legislators. Before we can regulate this, we have to determine what is a gift. This initiative says refreshments of negligible value are allowed (described earlier as carrot sticks by Janet Jensen), so then meals are OK. (What?! This kind of BS lawyer-speak logical leap is frustrating. Claiming to not know the difference between brownies at the back table of a conference and Reagan Signs specifically taking you and your wife out for $90+ meals makes us dislike and not trust you Senator. Can’t you see that?) If meals are not a gift, then I have never accepted a gift. (This statement was met with disbelief and I think someone in the crowd guffawed.) We're on trial. If these same laws were applied to school districts and cities, there would be a huge uproar. ( A burst of clapping came from the legislator buddies in back as Valentine finished his speech. And again, what is Valentine talking about? Seriously. He thinks the public would have an uproar if state school members and city council members were banned from accepting campaign donations from corporations and unions, banned from working as a registered lobbyist simultaneously while “serving” as an elected official, banned from using their campaign money for personal use, or required to state a reason for amending the campaign financial disclosures after the election is over? PLEASE pass that law as long as you apply it to state legislators as well. Please try and talk to someone who is not a political insider about what makes them trust or distrust their government. Talk about clueless from a man who has $187,000 in mostly special interest donations stockpiled for a run for governor.)

Karl Snow quickly took the microphone for a final rebuttal, which was quite elegant and I have butchered horribly in my summary – John, the legislature has allowed themselves to be put on trial…because of their actions. (Much of the seated crowd applauded that statement loudly for the first time in response to the legislative crony applause a moment before.)

Ned Hill - I'm on corporate boards. We must detail all conflicts and be very clear about them. We are asking them to live the standards of most boards of directors.

Brad Agle – (The Trib coverage of the hearing focused on his remarks) I moved here 2 months ago from Pennsylvania where I was a Professor of Ethics. Now I’ve joined the faculty at BYU. The legislature is on trial because they must be accountable. They must be accountable to the people. Pennsylvania needs ethics reform too. (This brought forced laughter from the initiative advocates seated in front. Once again, whatever situation in Pennsylvania Agle was referring to, the laughter is not persuasive of your point.) The initiative creating a code of conduct implies there is not one currently? Is there a code of conduct? Janet Jensen – There are some disclosure requirements, but the deadlines are often late and the reporting confusing. We are one of only 6 states with no code of conduct. One of the others is Illinois, like under Governor Blagojevitch.

Janet Jensen - I’ve had to fill out a 50 pg. disclosure for jobs listing work, credit card, property, debt, what your spouse owns, etc. This applies for congress members, stocks and bonds they own. Their staffs must do it too. This initiative is mild as ethics and disclosure go.

Ned Hill - Many politicians are doing a great job and this will not impact them. It draws bright lines and boundaries.

Jim Greer - Once the commission recommendation is made, is there any law that the legislature has to follow the recommendations? Janet Jensen – We hope this will go a long way by making the decision public. Public scrutiny and accountability will encourage the legislature to do something with the recommendations and not ignore them. There is no law requiring them to follow the recommendations.

Angryish lady
– I read the initiative. She turns to the crowd and asks “How many in here have read it?” About half of those seated raised their hands. "Oh." (It was obvious that she was expecting the number to be low so she could rail on her point about the bad details that overreach that no one reads. Many opposing the initiative made that point and I’ve read it a couple times. They will be using that argument extensively apparently.) This initiative is not good. There are inconsistencies. It gives a small group of people power. Speaking of the qualifications—you can't have current elected office, be party people, be a candidate, etc. Some of people on the initiative panel are running for office. They don't meet their own qualifications. (There was shouting from the crowd here that no, there were no candidates on the initiative team. The lady responded there was one lady in Davis District. No again, from either the crowd or presenters. One of the legislators yelled out that Cheryl Petersen ran as a Democrat which seemed to be the truth of the matter. Lots of comments come from the crowd at this point, telling the legislative group to be quiet. People for and against the initiative yelled out comments. I wrote down “accusations,” but I can’t remember who accused who of what.)

I missed here if someone asked a question or if Jensen was responding to something said by the legislators in back. Janet Jensen- Nothing is made a crime. The commission just finds the facts. (From the back, a female snorted “A felony.” A recommendation for felony criminal charges is one of the possible outcomes of the commission hearings.) “I'll get to that,” Jensen replied. Due process in our US Constitution only applies to life interest or property. Courts have held that no person has property interest in elected office. (Unfortunately, that’s not exactly true when a legislator can accept unlimited campaign donations from parties with legislation before the body, and then cash out that campaign fund as income at his/her discretion.) Legislators can't sue over loss of office. So the same due process rules do not apply. Public office is just a privilege. Courts around the nation, including Utah, have ruled this. (This was another of Jensen’s vague pronouncements where citing some specific precedents would have been much more credible.) There is no right to due process for a violation of ethics rules. None. The initiative writers, however, bent over backwards to give due process twice. There is the commission hearing w/ a lawyer paid for by the state. The legislators cannot be represented by legislative staff lawyers because they are conflicted. Because the legislators are their boss and can hire or fire them. (Not fire them as a client, but fire them from their “firm,” in this case the state.) The accused legislator can get a lawyer, subpoena evidence and witnesses, provide witnesses, etc. The ethics commission then issues findings and refers them to the legislature. The legislature can do what it wants with the recommendations. This is another opportunity for due process. It's not a conviction of crime, so the burden of proof is much lower. We are so proud that the state is run like a business; this is like business. Once prima facie evidence is provided, the legislator must provide their own proof of their innocence. (I saw this comparison written somewhere else, but I cannot remember where. It said this investigative process is common in business because the rule-breaker often is the only one with access to the necessary evidence, thus making it virtually impossible to prove any indiscretions by normal means. I’d be interested in the knowledge of anyone with experience on corporate boards. Do investigations and charges of breaking company policies or ethics really work the way the initiative proponents assert?)

Karl Snow - Due process is to face your accuser, call witnesses, etc. All of that is provided. The five initiative signers as back-up are there to motivate the leaders to agree on names. The legislature will do it. The legislature can and will change this law once it passes. They will tweak it how they want. They will have to. For instance, we will die. (Correcting Jensen’s earlier mistake that the replacement of those 5 signers is in the bill.)

Man in the back on window ledge yells out - Do you have term limits or is your role indefinite? Karl Snow prevaricates a little – No. The legislature will change that.
Bramble shouts out—Don't you and 12 others have the lifetime right to intervene? (This is when Bramble was shouted down by Talcott and others about the process, saying that he had to follow the rules.) Ned Hill – You can fill out a card if you would like. Bramble – “I want an honest answer!” (More angry crowd resistance to Bramble quiets him.)

College student who was a legislative intern - Do you have cost concerns about commission establishing own rules? (I may not have written that down completely right…) Janet Jensen replied pompously - “Absolutely no concerns.” We are the legislative branch in this case, and we can establish a commission w/ power to make its own rules. Our legislative power is sacrosanct. The legislature can make its own rules too.

little old lady named Mary - How can I get signatures? Have any of these ideas been used by any of the other 40 states who have more ethics rules than Utah? Janet Jensen – It is very similar to many, many other states’ commissions. (I was really frustrated with this answer. If you’re presenting in favor of a large proposal you claim is the result of extensive study, come prepared knowing which specific parts are similar to which other states. Or if you’ve created something original because of the unique local concerns in Utah, then be honest about it. Don’t leave us in the dark making suppositions.)

Another older lady started out very nicely- I respectfully disagree w/ Janet. This bill is overkill. I'm nervous to talk up here. (This statement garnered sympathetic noises from the crowd, but was almost immediately drowned out by the loud lady in the back yelling for her to speak up.) She reads from pgs. 15 and 16 of the initiative text, explaining that the legislature cannot participate in the quiet investigative period. They have no right to intervene. It’s not fair. I exhort all here to read the bill like I did.

(Janet Jensen’s next comment came out oily again, but I think it was a fair thought—I think the legislative opposition is purposely confusing the quiet informal investigative period and the full commission hearings as well.) Janet Jensen - I think it's confusing. In mid-step as she walks down the aisle, the lady who asked the question yells with rage “I can read!” Jensen – Well, don't mess with the mom of a lawyer. (This got a few chuckles, went over my head, and did not assuage the lady at all.) The time when the legislator cannot formally participate is only during the quiet period. Then they have all rights. Complainants cannot participate in an ethics hearing at ALL currently. They can’t even be in the room or present documentation of their charge. The current hearings give the charge virtually no chance without the research and perspective of the complainants. After the full hearing of the commission, and then possibly a full hearing by the legislature, this is maybe more due process than anyone would want. Her concern is about one little part of the process. The lady was standing at the back of the room and her face contorted with cranky rage as she then shouted “No! It’s about the whole initiative!” (Ignoring the fact that her comment had been about one small part of the process. This whole exchange was weird and kind of comical. This very nice, grandmotherly looking lady started her comment out so sweetly and nervously, showed more emotion at the end as she railed on the initiative’s unfairness, and then seriously channeled a stereotypical cranky yard lady when she shouted out during Jensen’s reply. She was in the hallway afterward being interviewed by the BYU camera girl who filmed the debate. Who knows where that can be viewed?)

D. Lynn Sorenson
– I didn't know that being the mom of an attorney carried weight. I am too. (She worded that better than I am conveying and garnered laughs after the last speaker.) I thank the committee for forming and working on this initiative. To Craig Dennis – What about other commissions? You seem to have experience on other political or corporate commissions. Please point to a state where the ethics commission is working well. For those that think this seems too new, ore seems scary or weird, please give us an example.

Craig Dennis – I am not prepared; I didn't do research. Janet, can you help? Janet - I can't think of any right off the top of my head. Ummmm…Colorado hs a good commission. Washington has one. [She sounded very unprepared here] If you want info, go look at NCSL website for research. There is a bundle of info if you want to get into this. (Lame non-answer. Just say you don’t know.)

Margaret Stolk – I have concerns. How much money be paid to lawyers for each complaint filed by any three people? Can the accuser be from New York? Can the charge be frivolous? What are the salaries of the 20 commissioners? (Crowd yells about there being only 5 commissioners. After a moment, she continues.) In my humble opinion, this will start an unaccountable 4th branch of government unaccountable to the Attorney General, courts, or anyone else.

Janet Jensen
– The commissioners don't make money. [I roll my eyes as she says this. The legislator crowd in back yells “They get per diem!”] They don’t get money. They get what legislators make per diem for meetings, etc. [The legislators yell “Then legislators make no money!”] I think the 472,000 dollars is a bargain compared to overall state expenditures. This commission is part of the legislative branch because of the state constitution. It’s part of the legislative branch recommending discipline or censure. Judges and judicial review do not apply to sanctions of the legislative branch to itself. Our first thought was that no one should get attorney fees. Last year, a legislator retained an expensive lawyer for a hearing under the current process, then lobbyists and special interests donated money to pay for his (Greg Hughes’) attorney fees. We don't want that. So we bend over backwards for good process and give them money for a lawyer. (There was something about Jensen claiming you can retain a good lawyer for $80-$90 an hour, but I didn’t get it down specifically enough.) The complainants do not get money to pay lawyers. (The “persuasive” legislative laughter burst from the back at this.) Tell your legislators to amend and change that if you want. (People in back yell out that attorney fees run $200 or more an hour. That this is not necessary. The lawyer fund is open and can run whatever a legislator decides to pay. It will bankrupt the government…This was a long, loud stretch.)
Karl Snow - Frivolous charges are deposed of in quiet period before lawyers get involved. (The loud lady in back yells “Speak closer to the mic!” again.)

Erika - When does the right to the paid attorney kick in? (I didn’t write down if this reply was Jensen or Snow) The executive director and staff vet the claim. There are no lawyer fees at this point. The legislator can participate informally, so can the complainants. If the executive director finds there is a basis in law or fact, he/she then refers the matter to the entire commission. At that point, the accused legislator can spend provided money on a lawyer. (Another older gentleman who had yelled out a lot, exited the room here.)

Adrielle Harrion
- Any effort to push ethical standards high is good. (Again loud laughter from the back.] This initiative may push the legislators to better their ethical rules. (A loud incredulous gasp from behind me. Needless to say, the vaudevillian antics were wearing thin. Especially since this lady was not speaking in favor of the initiative.) I have read the bill and have many concerns however. Karl Snow said the selection of the 20 commissioner candidates will not fall to him and the other 4 signatories. I don't think that's true. Some of the legislative leadership may be aligned w/ signatories, and may hold out. This is a real problem with the provision that commissioner selection could fall to the 5 signatories. It could lead to unethical unwillingness to approve good people by some legislative leadership.

Ned Hill -They don't serve themselves, just appoint others to candidate pool.

Karl Snow - This is the hard part. The legislature can change this. We want to encourage agreement between the 4 legislative leaders. I don't think it is that difficult. (I didn’t note this well, but Snow repeated several times here that the legislature will have to tweak and change some of these procedures if the initiative passes. I appreciate his honesty, but it does make the supporters seem underprepared. At the same time, Snow explained that this was a difficult question of how to motivate compliance and agreement by the legislative leaders in selecting candidates for the commission. If the legislature could just not select anyone and hold up the process, what good would it do?) We are spending too much time on this rather than the main point of the bill.

Ned Hill – They don’t want the process to be stalled. They want to hurry to an agreement on names. They don't serve on the commission themselves.

Jane Lawson – I’d like to thank the commission. Maybe I'm naive, but who would file a complaint if they have to pay their own lawyer fees? Is this a loophole on who will be able to complain—only rich? Janet Jensen - In the first drafts, everyone got attorney fees (As well as a version where no one got attorney fees that she mentioned above. It makes me worry about which versions went out for review by scholars/lawyers), but we were worried about paying for lawyers for all those who might complain…for whackjobs. I hope that citizens care enough about corruption, bribery, aggrandizement, to complain. It is scary. The cost will disincentivize some from complaining. They will have to think long and hard. It’s good thing if people will think long and hard. We did the best we could to make this fair.

- Thanks those who drafted this. Ethics is important. However, even though he is masters student still learning, reading the language reveals this challenges ability o citizens to have control. The language is derogatory and gives too much power to the commission. Snow said this wouldn't create power. Be careful, this is giving another group power. I still consider this a draft. It needs to be edited. Look at the power given. The intentions are good, but this is a malicious direction. Is there a way to address these issues without forming a separate commission? (The legislators clapped loudly at his speech).

Janet Jensen - Wow. We had a committee of the best and brightest lawyers who put in 100's of hours doing drafting and research; it has been vetted by scholars and deans of law schools. The initiative can be confusing because it is written in the language of law and that's confusing to non-lawyers. (That was a dumb comment. I think Jensen couldn’t take the criticism at this point and was just being stuck-up. Though I agreed with her next comment.) The legislature could have passed meaningful ethics laws for 100 years and they haven’t done anything. (Lorie Fowlke, who I usually consider fairly rational and well-spoken for a Utah County legislator yells out “That is not true!”) My notes are garbled here, but Jensen finishes with something to the effect of “Draft a better initiative if you want.” (The legislative crowd in back was grumbling and talking all through this last part.)

Ned Hill stood and said they would only take one more question. Legislative crowd yelled that the meeting went until nine. Hill said that library staff had informed them they had to be out of the room by nine. (This really isn’t enough time given the crowd and involvement. The last name is drawn from the pile and it is…Claralyn Hill. Ned’s wife, Democratic candidate for House last year, and center of the controversy where legislators demanded a private apology of Claralyn before Ned would be considered as president of UVU. Hmmmm… He seemed surprised, but who knows.)

Claralyn Hill – (Given the very recent history I just described, of the legislators taking her campaign stance in favor of ethics reform so personally that they demanded apologies months after the fact, she may not have been the best person to articulate her message.) Legislators, don't take this personally. This is not a personal dig. The legislators are taking this personally. It is the right thing to do. It is a trend in corporations. (The incredulous laughter from the back returns.) When you say legislators cannot be drafted into corporate boards, does that include non-profits? And how will you know if the reason they are selected is just because they are a member of the legislature?

Janet Jensen
- Yes, this applies to non-profits as well. Holding the position cannot make money for self. It applies only to boards that pay, whether for profit or non-profit company. (My notes here were disjointed again. I need to reread that portion of the initiative).

The hearing ended and people exited or sat around in circles and talked.

The legislators that I saw during the hearing were Senators Curt Bramble and John Valentine, and House Representatives Lorie Fowlke, Craig Frank, Becky Lockhart, and Chris Herrod. I also saw Stan Lockhart, former head of the state Republican Party, and Taylor Oldroyd, new chairman of the Utah County Republican Party. I saw Brad Daw afterwards. Don Jarvis told some that every Utah County legislator was there…I just didn’t see/recognize them all myself.

I tried to walk around and listen a little to conversations. I talked to a couple people. Chris Herrod had a big smile on his face and was schmoozing the lady named Mary who had asked how she could help gather signatures and about other states’ commissions. He told her and her friend that he’d have to quit the legislature if this initiative passed and so would lots of others. It would set up 2 classes of legislators—the teachers and the other employees. (As far as I know, this was the first time I had heard teachers brought up all night.) The teachers run conflict of interest bills all the time. They just passed 2 or 3 extra days of special ed. teacher prep time in the summer. (I want to return to this in another post. The true feelings of the legislators in conversation. Just think of the corporate subsidy of your choice and then the bill he just mentioned.)

I got the feeling the legislative opposition is going to focus on the commission as evil, unconstitutional power grab. This has been borne out in commentary so far and by the pressure on Lt. Governor, Greg Bell, not to certify the petitions on constitutional grounds. The legislators were mad the meeting ended early and wanted more open forum and debate. I actually agree with that, although I’ll post later on the hypocrisy inherent in that.

I mentioned in a previous post the woman I overheard laughing about the rude lady who passed out the opposition flyers while pretending Don Jarvis gave her permission. This same woman told a couple other people that they needed a plan because “We lost vouchers the last time.” This really got me thinking. Why did she even bring that up? My increased political involvement goes back to vouchers. The ethics hearings last year were about charges of impropriety during the voucher campaign. The election cycles prior to the passing of the voucher bill were textbook illustrations of outside moneyed influence picking off anti-voucher Republicans with tacit agreement from legislative leaders who were also receiving this outside money funneled through Parents for Choice in Education. Rep. Herrod and Sen. Hillyard’s flyers specifically bring teachers into the debate as conflicted whiners trying to unfairly stain the name of just legislators. I think they really see teachers like they see Democrats, one-sided enemies. They have no understanding I think of the motivations of most teachers, the diverse viewpoints among Utah teachers, and how someone like me who holds a basically Republican macro-view of government, can now name specific anti-teacher statements, actions, and bills that make me distrust many of the leading Republican legislators in the state. Anyway, more of that in further posts.

As I walked out, a library security guard turned off many of the lights encouraging the groups to disperse. Curt Bramble and I think Becky Lockhart were with a group in the hall, and I heard someone lividly say something like “And they tell us not to take it personally?!”

I think I truly saw some of the legislators’ perceptions tonight, and they’re living in a perceptual box. They surround themselves with rigid partisans and try to laugh off those who disagree with them as disaffected political losers or evil liberals. I really think most of them don’t get it. They’re convinced that everyone else is seeing things wrong and the problems are just a “perception problem” of the public caused by scheming Democrats aided by the liberal media. They don’t get that politically involved people in the state quickly discover unethical, power-hoarding incidents involving the legislature, and only the relentlessly partisan among those involved people think it’s OK. Independent leaning people on all sides are angry, and the legislators’ “poor me, stop picking on us” routine is not convincing. It comes off as hypocritical rather than righteously indignant, and rank and file Republicans strongly support the intent and purpose of the initiative. The voucher debate involved a lot of technical back and forth, but the reason they were overturned was a large public belief that they were hand-outs to the wealthy that damaged public schools. The technicalities and attempted liberal labeling (czars) will not convince people that the idea of reigning in ethical and financial corruption is bad if this initiative makes it on to the ballot.

I can understand that many of them feel personally accused of lack of integrity, but the argument that “The politicians everywhere else have problems, but not in Utah…just trust us,” is a thin and shabby excuse not to enact regulations to prevent payoffs and increase public transparency.


Tom said...

Thanks for these write-ups. I'm a bit disconnected from goings-on in Utah now, but it's good to hear there's strong public discussion on ethical issues.

I also wanted to put in a plug for Professor Brad Agle. I was fortunate to be able to take an ethics course from him when he was a visiting scholar from the University of Pittsburgh. The course was incredible--I expected it to be rather boring (my undergrad ethics course was), but found his presentation, knowledge and research into ethics incredibly fascinating. I was impressed too, when a year later he spoke at a research conference on ethics and observed how highly he is respected in ethical research circles.

I only know Ned Hill vaguely, but have been impressed with how highly he's regarded by VIPs everywhere. I was further impressed by what I perceived as the ethicality of his conduct during the UVU presidential search not too long ago.

Keep up the reporting.

Anonymous said...

I'm amazed at how you were able to recall all of the dialog at the meeting in such vivid detail. How were you able to do that?

Anonymous said...

If anyone in the Ogden area would like to help collect signatures for the petition, please call me at 801-645-3592. I have a number of petition books complete with instructions and supporting information. The petition books have space for 20 signatures each. Your help would be greatly appreciated, even if you only want to work on one book. -Rick Bolin

John B Talcott said...

This is what "Utah Teacher" wrote:

"Ned Hill asks Senator Valentine to come up, but it is not 100% clear what is going on for a moment because all the questions until now have been from the cards and regular crowd members and the legislative bunch in back are talking. As Valentine comes forward, John Talcott rudely shouts,”Who are you?” Ned Hill replies with Senator’s name and position. Talcott grumbles about special treatment."

Actually, because of the talking in the back behind me I did not hear Ned Hill say the legislator's name. Since I don't know John Valentine, when the "legislator" went to the front of the room and just started talking, I asked "who are you". Since I was near the back of a noisy room I raised my voice to be heard. If this came across as rude to the author of this blog, then I have no control over that person's judgment. I just wanted to describe what actually took place.

UtahTeacher said...

1st anonymous -
I can't tell if you are being sarcastic or not. Either way, I took as detailed of notes as I could manage trying to capture what was going on around me. I added things I remembered as I typed up the notes, editing the mess they were in and adding commentary.

I posted a long response on my Part 3 post where you also commented.

Sara Brate said...
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Sara Brate said...
This comment has been removed by the author.
Sara Brate said...

I apologize for the deleted comments above. I corrected some links and reposted (twice). I'm now finished providing links to the public hearing videos written about on this blog. Again, I hope it's useful to someone! I think I have OCD!

This post comprises Part 6 (starting at 5:40), Part 7, Part 8, Part 9, and Part 10

Greg Durden (guys name that UtahTeacher didn't catch)

"Could you hold that mic closer?"

Invitation for Senator John Valentine to talk about gifts

John Talcott asks, "Who are you?"

John Valentine finishes speech, burst of clapping from legislator buddies

Karl Snow Rebuttal

Ned Hill Commentary

Brad Agle

Tape Ends (just as Brad Agle is finishing his question and doesn't resume until "little old lady named Mary")

Little old lady named Mary

Elaine Barnum("Another older lady")

D Lynn Sorenson (continues on Part 8)

Margaret Stolk

Erika Taylor

Adrielle Harrion

Jane Lawson

Michael Gray