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December 3, 2012 (Recessed Meeting) Page 1321
<br />Cash: Yes.
<br />White: And did you notify Liberty Mutual about Mr. Small's suspension from
<br />the State Bar?
<br />Cash: I did not.
<br />White: Did Mr. Small ask that you disclose that to Liberty Mutual?
<br />Cash: Actually I had a girl in our office takes care of the bonds, so she -
<br />I didn't deal directly with it. But she, no, he did not mention it. We
<br />didn't get that far and that wasn't an issue that came up.
<br />White: Okay. And do you know if your assistant in the office notified
<br />Liberty Mutual of that issue or excuse me, of the fact that there was, or is
<br />a suspension?
<br />Cash: No.
<br />White: Okay. Thank you.
<br />Measmer: She did not or you're not aware she did?
<br />Cash: Both. I'm not aware that she did, but I assume that she didn't.
<br />Measmer: Okay.
<br />Poole: Additional Questions? Or Comments?
<br />Burrage: Is the bond legal?
<br />Koch: Are you speaking of the Liberty Mutual Bond?
<br />Burrage: Yes (inaudible).
<br />Koch: The reason that I asked the chair to ask Mr. Small to let us take a
<br />look at it again, when I was reviewing it a little while ago there was what
<br />appeared to me to be an irregularity with the power of attorney on.that bond.
<br />It was different from those that I'd seen in the past and I say that using
<br />the word "irregularity" sort of in a lay- context. That's why I wanted Mr.
<br />Harris to look at it, because he's our resident insurance expert at the
<br />county and certainly knows quite a bit about that. There's an
<br />acknowledgement on that power of attorney that predates the day that it
<br />appears the power of attorney appointment was made. I don't know the exact
<br />dates, I don't have a copy of it in front of me, but it was a 2011 date.
<br />Ordinarily, the power of attorney - well let me back up and say, there's
<br />another acknowledgement at the bottom of it that is subsequent to what would
<br />appear to be the date of the appointment of the power of attorney. Mr.
<br />Cash's name is typed in as the attorney -in -fact on that power of attorney. I
<br />had never seen one quite like that before, it certainly is different from -
<br />from the ones - certainly looks different from the one on the previous bond
<br />that Mr. Small had tendered, which appeared to me to, on that part, to be
<br />regular in form. Now, having said that Commissioner Burrage, in terms of the
<br />technical defects that were noted in the CNA /Western bond, namely that that
<br />one hadn't been signed, that the date for the end of term was two days short
<br />- some of those, what I consider to be "technical matters ", it appeared that
<br />that bond complied with those. The larger, or other issue, if you will, is
<br />the extent to which the bond is satisfactory with reference to the scope of
<br />it, as we discussed in our last meeting concerning this issue. Namely,
<br />whether it would comply with the requirements of GS 58 -72 -60 such that it
<br />would lessen, if not eliminate, any potential personal exposure for the
<br />members of the commission. And if you want, I can re -read the language of
<br />that statute.
<br />Burrage: You can probably change it before you get to read it.
<br />Koch: Well, Commissioner, this is the -
<br />White: It hasn't changed over a hundred years.
<br />Koch: This is one of those ones that has been around since, I think, the
<br />inception of the requirements for bond in this case. And I'll read the
<br />pertinent part "Every commissioner who approves the bond... which he knows to
<br />be, or which by reasonable diligence he could have discovered to have been,
<br />insufficient in the penal sum, or in the security thereof, shall be liable as
<br />if he were the surety thereto..." And certainly, on the face of the bond, it's
<br />in the amount of 50,000 which is what this commission has set to be the
<br />required bond for this office. So it gets back to this matter of whether it
<br />is "sufficient in the security thereof ". And that, of course, goes back to
<br />the communication I had had with Professor Szypszak at the School of
<br />Government as to the scope of inquiry to - in order for this board to be
<br />satisfied that it is "sufficient in the security thereof ". I hope that
<br />answers your question.
<br />Small: I guess just to clarify, Mr. Koch, are you saying that this is
<br />superfluous information? That's my reading of this power of attorney form.
<br />I'm not sure what answer you're giving to Commissioner Burrage.
<br />Koch: With respect to the power of attorney?
<br />Small: Yeah. Yes, sir.
<br />Koch: I don't have it in front of me, but I just noted there was a date on
<br />it that preceded, what would appear to be the appointment of Mr. Cash as
<br />attorney -in -fact. Most - I don't know that I can say every - bond that I've
<br />ever looked at cause its been over, periodically over a long period of time,
<br />but every one that appeared to me to be standard in form had the appointment
<br />of the attorney -in -fact and the acknowledgement of that would come
<br />contemporaneously with the document that was being submitted. You wouldn't
<br />have a date that was a year or so in advance that would be on that
<br />appointment of the attorney -in -fact. I say, it just appeared to me to be
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