Wednesday, May 11, 2016

Kentucky Abolishes and Recreates Nominating Commission

Change is happening in Kentucky recently. I was privileged to speak at their recent celebration of 100 years of workers' compensation in April. These centennial celebrations are going to be happening in a several states during this decade and it is good to see people acknowledging the role workers' compensation has played in American history. 

Last fall eight workers' compensation judges were recommended for reappointment. Kentucky has a process in which judges are reviewed by a nominating commission, then the Governor decides to reappoint them or not, and if his decision is to reappoint then the state Senate has the final word in confirming the appointment. This is a bit more formal than Florida's process. 

The news in April was interesting, when the Kentucky Senate adjourned without confirming three of the recommended judges. According to the Roland Legal Blog Judges Allen, Borders and Levy were not confirmed, and thus vacancies were created. That blog post also noted that four others had been recommended for reappointment by the nominating commission. The fate of those four judges; reappointments remains unknown at this time.

The unexpected news this week is that Governor Bevin has changed the nominating commission in Kentucky. The Courier Journal reported yesterday that he has signed an executive order altering the Kentucky nominating commission. 

His executive order says "it has been determined that the Workers Compensation Nominating Commission" established by law "should be abolished, recreated, and restructured." That it should have "new governing membership and a more focused vision and purpose." The vision should be to "carry out the objectives" of the Kentucky law "to achieve greater economy, efficiency, and improved administration of the Kentucky workers compensation system."

There are more than 51 workers' compensation systems in the United States. They are called upon to make a great many decisions, which in turn affect a great many lives. The state legislatures create workers' compensation, and define terms and benefits statutorily. Often these laws delegate a significant degree of authority to executive branch regulators, who further refine and define the systems and processes. 

In Florida, there has been a long-running debate about the best method for putting judges on the bench. Some argue for a pure election system, others for appointment. The judiciary has been in the news with recent proposals to change the mandatory retirement age for constitutional judges, and discussion of altering the structure of the Supreme Court. It is perhaps fair to say that judicial selection and tenure are periodic topics of discussion.

In Florida, we have a long history of a "checks and balances" method for filling vacant judicial positions. We use nominating commissions, which are groups of citizens called upon to meet and review applicants for vacant judicial positions. Each of our state Circuits, Districts, and even the Supreme Court has such a commission. Members are appointed by the Governor, some by her or his own selection, and some who are nominated to serve by The Florida Bar, yet ultimately appointed by the Governor. 

For workers' compensation judges, the process is slightly different. While most Florida nominating commissions are defined in Chapter 43, the Statewide Judicial Nominating Commission for Judges of Compensation Claims (SJNCJCC) is defined in Fla. Stat. 440.45. This Commission is unique in Florida, in several ways. First, some members are actually appointed by The Florida Bar instead of merely being nominated. The SJNCJCC is also larger, 15 members, than the other commissions. And it actually appoints some (5) of its own members; the bar appoints 5, the Governor 5, and then those 10 appoint 5 more. 

These commissions review applications when there is a vacancy. Based thereon, or with the aid of interviews, the commissions propose lists to the Governor, and she or he must select from that list to fill the judicial vacancy. It is a "checks and balances" compromise that uses appointment to fill judicial positions, but limits the Governor's discretion through an independent body of nominators. 

Kentucky's system is not all that different, although the additional "separation of powers" element of Senate approval makes it a bit more complex. The Courier Journal says that the Governor's executive order this week has "revamped the Kentucky Workers' Compensation Nominating Commission." Part of that process is that all of the existing Commission members have been relieved of their responsibilities, and has "named all new members to" the newly "recreated" Commission. 

The Courier characterizes this as "the latest of several reorganizations where Bevin has scrapped, or significantly changed, the makeup of an important state board that he inherited from his predecessor." Governor Bevin was elected last year. Changes in administrations can mean changes in process and procedure. I had a political science professor years ago whose frequent refrain was "people run for office to change things." So, perhaps change is not that unexpected when there is a change of administration? 

However, there are those who question this process. The existence of the Commission comes from Kentucky statute, section 342.213. Some have questioned the Governor's authority to remove members from the Commission after they have been appointed. These questioners believe that Governor Bevin's order "abolishing" the Commission and "recreating" it improperly removes all of the previous members of the Commission. It will be interesting to see how that argument plays out. 

This is not the only recent time that workers' compensation nominating commissions have been in the news. Kansas recently saw debate of its commission process, and the application of open-meeting laws to such proceedings. The Kansas Attorney General issued an opinion on that earlier this year, concluding that the Commission's business should be done in public, according to The Topeka Capital Journal.

In Florida, our SJNCJCC has had stable membership for a great many years. There was a time when its membership was perceived as being too aligned with the practitioners who appear before the Judges of Compensation Claims. That potential was legislatively foreclosed over twenty years ago. The current SJNCJCC includes a great variety of experiences and expertise, and all of its meetings are held in the public. 

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