Sunday, October 23, 2016

An Interesting Review of Separation of Powers in OK

Last Thursday, the Tulsa World reported on the relationship between the Governor of Oklahoma and the Chair of its Workers' Compensation Commission in Workers Comp Commissioner Defies Governor Fallin's Demand for Resignation. On Friday, WorkCompCentral reported on this in Senator Condemns Governor's 'Intermeddling' With Comp Commission.

The story may be fairly familiar by this time. In addition to making the workers' compensation news last week, commentators like Bob Wilson have discussed it, with a touch of humor, Oklahoma Workers' Comp: Stranded on Gilliland's Island. Other commentary is bound to follow. This story is simply too interesting to ignore. Much interest will be for the intrigue, but it is also interesting legally.

The Tulsa World story Thursday started the attention. It revealed that in late August Governor Fallin of Oklahoma corresponded with Robert Gilliland, the Chair of the Oklahoma Commission, and requested that he resign. Chair Gilliland purportedly replied in writing and declined to resign. He says that the Governor's request was “inappropriate and illegal.”

Reportedly, Gilliland feels his resignation was requested “because of ‘dissatisfaction with a decision the Commission made in a case.’” There is speculation that the decision in question was the Commission’s declaration that the workers’ compensation opt-out, commonly referred to in industry circles as the “Oklahoma opt-out” is unconstitutional. When the Commission made that decision, there was discussion about their authority to do so. However, as reported by WorkCompCentral, Governor Fallin’s spokesperson has said the governor “had ‘multiple reasons’ for being dissatisfied with Gilliland's performance.” The spokesperson also said that “the specifics have been conveyed to the chairman.”

As explained in other posts, there is a general proposition that executive branch agencies lack the authority to make decisions about constitutionality. The Florida Judges of Compensation Claims, for example cannot decide if a statute passes constitutional muster. Such decisions in Florida are left to the constitutional courts. I remain astounded at how many practitioners and even judges refer to this administrative office as a “court,” when it is so clearly not one. In Re Amendments to the Rules of Workers' Compensation Procedure, ("The Office of the Judges of Compensation Claims (OJCC) is not a court of this State").


The Florida OJCC is not a “court,” and the Florida Supreme Court has clearly held so. When referring to this Office, the appropriate terms may include “the Office of Judges of Compensation Claims” or “the OJCC” or “this Office,” or “the Judge,” but not “the Court” or “this Court.” Use of that term is inaccurate and therefore confusing. 

So, there was much discussion about the Oklahoma Commission ruling when it was rendered last February. Did the Commission have such authority as an Executive Branch agency? From high school civics, most will remember that American government is generally divided into three branches, the executive, legislative, and judicial. This division of responsibility is a product of our constitutional form of government and is delineated in both the United States and various state constitutions. It is referred to as "separation of powers," a fundamental element of this Constitutional Republic.

The Oklahoma legislature, however, in creating the Oklahoma Workers’ Compensation Commission in 2013 declared that agency to be a “court” for the purposes of making decisions. Such a declaration is dependent upon the powers conveyed by a particular state’s constitution. Florida’s constitution does not empower the legislature to make such a declaration, to create such a "court." In Florida a “court” can be created only by constitutional amendment. But in Oklahoma, the constitution empowered the legislature to make such a declaration, to create a court, and the legislature did so. 

The 2013 workers' compensation legislation was a dramatic change for Oklahoma on several levels. Until 2013, workers’ compensation disputes there were decided by a specialized bench or “court” for such disputes. That court was housed within the judicial branch of Oklahoma’s government. At that time, a handful of states had such an arrangement, and both Oklahoma and Tennessee created administrative agencies for dispute adjudication that year. Currently, only Alabama still uses its constitutional courts for adjudication of new workers’ compensation disputes. In Oklahoma that court still exists, now called "the court of existing claims," and adjudicates only the disputes regarding accidents prior to the 2013 change. It is expected to diminish over time in terms of workload and personnel.

The decision of the Oklahoma Workers’ Compensation Commission, declaring the Oklahoma Opt-Out unconstitutional received a fair amount of discussion in the workers’ compensation industry. There were those that perceived the Commission's decision contradictory to its own earlier decisions about the scope of its authority. Others found it curious that an executive branch administrative body, at the time composed of one business person, one doctor, and one lawyer, could make constitutional decisions. But, the authority of the Commission has been accepted as an appropriate legislative delegation of power. And, the state’s Supreme Court has since affirmed the Commission’s decision and authority. In doing so, some believe that the Court has accepted and/or endorsed the state's adoption of the administrative workers' compensation process. 

The issue of separation of powers is not back in the news following this letter in August, in which the Governor sought Chair Gilliland’s resignation. This has been characterized variously. Some conclude that a Governor seeking resignation of an administrative agency head is merely engaged in the appropriate management of the executive branch. Others perceive this as meddling in the affairs of a “court,” which is nonetheless still part of the executive branch. And thus, there is the current return to the discussion of “separation of powers” in the Oklahoma situation. 

I am reminded of an old series of television commercials that focused us upon differing perspectives. In each commercial, through some contrived collision between a lover of chocolate and a lover of peanut butter, the two commodities would become intermixed. One party would claim “you got peanut butter on my chocolate,” while the other would argue instead that “you got chocolate in my peanut butter.” It was a wildly popular ad campaign, and the solution of course to all the argument was purported to be a candy bar containing both elements. 

I wonder aloud if it matters whether one is on the other (peanut butter on my chocolate) or in the other (chocolate in my peanut butter). The fact is that how you perceive the current situation (of chocolate and peanut butter mixed) may well depend a great deal on whether you individually prefer chocolate or peanut butter. Is the Oklahoma Commission an administrative agency with court powers, or is it a Court within the executive branch? And that determination may well flavor how a particular individual sees the outcome of this current dispute. 

The point of the debate may be moot in time. According to the Tulsa World, Governor Fallin has already decided that Chair Gilliland “will not be reappointed when his term expires in August 2017.” Thus, there may be conjecture and discussion as to whether an appointed official such as Commission Chair Gilliland can be removed from office. Or, it is possible that the conversation will become about leadership being marginalized, as we have seen in Iowa. In 2011 Iowa Governor Branstad first sought workers' compensation administrator Godfrey's resignation. When that was rebuffed he cut Godfrey's pay significantly. A lawsuit remains pending regarding that executive agency dispute. 

But, in the end, Gilliland's effectiveness as Chair may be impaired by the simple conclusion that regardless of future performance his tenure will close in ten months. Whether he can or cannot be forced to withdraw, it seems clear that the Governor can elect not to reappoint him when his term expires. Though Commissioner Gilliland concluded in his letter to the Governor that he believes “it is in the best interest of the injured workers, employers, insurance carriers, employees of the Commission and the people of the State of Oklahoma” that he “remain at the Commission,” it appears as clearly that this conclusion is, at best, up to him for the next ten months. And, it is possible that all of this publicity and discussion alone may itself impair the Commission in coming months. 

So, some believe that the Governor’s request for a resignation was a normal administrative action, in which an agency head would be replaced. A Gubernatorial spokesperson said “it is perfectly appropriate and legal for the governor to request any appointee’s resignation at any time.” And there is ample support for that contention across the continent regarding administrative agencies generally. 

Others perceive this request as executive branch meddling with a state court. One community leader quoted by the Tulsa World said that “under the tradition of separation of powers, it is inappropriate for people to try to affect those decisions” (of the Commission). I certainly think that everyone is entitled to their own opinion(s), but the characterization of “separation of powers” as a “tradition” is curious; separation of powers is a constitutional construct that is at the foundation of American constitutional government. The question, really, is whether this situation actually implicates separation of powers. 

According to WorkCompCentral (“WCC”), the governor’s request for Commission Chair Gilliland’s resignation has drawn criticism, some of which comes from those who oppose the 2013 workers’ compensation reforms, including the very creation, and empowerment, of the Commission. One critic told WCC that “it seems the governor's office has ‘a very clear idea of the results they expect’ from commission decisions, and ‘if you don't give them what they want, you will be removed from the process.’"

Commission Chair Gilliland’s refusal to resign drew praise from some of those same system and reform critics. One said “he considered it ‘a serious miscarriage of justice to try to influence a judge,’ and that Gilliland was praiseworthy for “having the courage to resist attempts to influence decisions in workers' compensation cases." This system-critic also said that Gilliland is “one of the most respected lawyers in Oklahoma City, and his integrity is unquestioned.” Not faint praise from any perspective. 

It is important to remember that there is a certain element of criticism in any change. We as beings do not traditionally react positively to change in many instances. And, it seems that our propensity to accept change may be affected by how accustomed we have become to the current status quo when change comes our way. There are changes advocated constantly in American society, business, government, and more. And, how we each react to those changes is critical to both our function and our psyche. In that context, the 2013 change in Oklahoma was significant, and it is perhaps inevitable such systemic change will bring disagreement and discord?

I met Robert Gilliland at a meeting of the Southern Association of Workers’ Compensation Administrators (SAWCA) in Williamsburg, Virginia. It was July 2015 and he happened to sit next to me at the annual Regulator’s Roundtable. Discussion centered initially on the variety of issues and constitutional challenges to statutes around the country, and I delivered a short update on the Florida litigation in Padgett (A Rose by Any Other Name), Castellanos, and Brock. Workers' compensation for the last few years has been interesting here in Florida too after all. 

I recall feeling like there were many active challenges and issues in Florida at that time. And then Robert Gilliland delivered an overview of Oklahoma's creation of a whole new agency, and the challenges, legal and logistical. They were two years into a whole new administrative process at that time, and facing multiple constitutional challenges to it and to the revolutionary concept of an opt-out that included employer immunity. I remember after he spoke of those challenges, I leaned over and told Robert “thanks for being here." I found the Oklahoma experience and challenges intriguing and educational. 

As an industry, we witness innovation and effort in various jurisdictions. There are attempts to streamline processes, innovate with technology, and deliver service to injured workers and employers. I have been fortunate to know a great many state workers' compensation administrators, board members, commissioners, directors, judges and more. I have been consistently impressed with how focused they all are on serving their states and the constituents of their workers' compensation systems. I do not always agree with them, but on the whole I find them sincere and well-intentioned. We learn a great deal from each other, and from the events in each other's states. 


I will be watching Oklahoma's current discussion, as I have watched it for years regarding the opt out. I will be interested to see how the current contentions and disagreements work out in time.

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