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.