I recently ran across the decision of the Commonwealth Court of Pennsylvania in the cause of the Department of Labor and Industry v. State Civil Service Commission (McCormick), Case No. 1768. The decision is dated July 8, 2021. It is interesting in that it involves a Pennsylvania workers' compensation judge, Hon. Andrea McCormick, and her termination from the Pennsylvania agency that adjudicates work injury claims. The details provide contrasts regarding the structure of that agency and the Florida OJCC. The analysis provides interesting insights into the Code of Judicial Conduct, some subtle state distinctions, and judicial behavior.
In Pennsylvania, workers' compensation judges are not gubernatorial appointees as in Florida. The judges there are hired by the Workers’ Compensation Office of Adjudication and their employment is protected by various rules and the State Civil Service Commission ("Commission"). The court in this opinion recounts a lengthy service, the Judge was appointed in 2006 and was terminated in 2018. Her function was described aptly: "managing a continuing caseload of hundreds of cases in a prompt and efficient manner while protecting the due process rights of all of the parties." This seems an understatement but could be reasonably applied to Florida judges.
The court outlines some variety that is also illustrative. It describes the application of the “Civil Service Act,” as well as "the Governor’s Code of Conduct and the Information Technology Acceptable Use Policy." and various published "Management Directives," and "Performance Expectations Workers’ Compensation Judge." There are a variety of imperatives that can direct or constrain the adjudicator. Later in the decision, the court references a statutory code of conduct. In Florida, we have the broad and inclusive Code of Judicial Conduct and some prohibitions on gifts. Perhaps it is fair to characterize the Pennsylvania experience as more regulated or more complexly regulated?
The court describes some detail of the Code. It includes a similarity to Florida's, which is perhaps its most challenging. This is the broad and inclusive "appearance of impropriety" prohibition. There is much grey area there. Judges are asked to govern themselves in a manner that anticipates how some observer might perceive their words or actions. That is both broad and undefined, a challenge indeed.
The court reviews the judge's employment history, glowing performance reviews, consistent performance, professional demeanor, timely decisions, and effective courtroom management. From the supervisor's standpoint, seemingly a model employee. In my days of employment law and workers' compensation practice, I saw many a supervisor who would advocate a termination despite very recent glowing performance evaluations. Supervisors too often fail to utilize the annual review effectively, fear the confrontation potential of frankness, or have a myriad of other excuses for their seemingly abrupt about-face on employee performance. Such reviews should be used candidly and provide specifics of challenges and needed improvement.
In 2017 an attorney filed a complaint regarding a proceeding in which a "client was not successful." The judge had "complimented a brief written by" the attorney's firm, and the lawyer found the compliment "inappropriate because the firm ultimately lost the case." Thereafter an email complained of the judge "ruling contrary to an unreported Commonwealth Court decision"; which decision the Court noted had not been rendered at the time the judge ruled. A third email was submitted complaining of the outcome in another case, in which the Appeal Board reversed a portion of the judge's decision. In a fourth instance, the attorney complained about how long approval of a settlement had taken. Though not entirely clear, the context of the court decision suggests the same attorney or firm was the source of all of these complaints.
The agency undertook a review of over 100 decisions rendered by the judge. It found that the judge "acted impartially in matters involving" the attorney's firm, and" did not find any impropriety on WCJ’s part. Shortly thereafter, the attorney complained the judge "spoke with another workers’ compensation judge about a matter prior to assignment for its mediation." This appears to be an issue of impropriety perceived, but the court noted "a recusal motion was never filed in the matter." Subsequently, the lawyer complained about the judge denying "a subpoena request," denying "a request to approve a stipulation," and finally that the judge "was having a personal romantic relationship with an attorney appearing before her."
Notably, a recusal regarding the judge had been in place for years as a result of that relationship, though that disqualification/assignment system had "occasionally failed" to preempt assignments in some instances regarding various judges. That is distinct from Florida. There is no recusal system here. The Rules require disqualification in a case-by-case process.
The complaints led the agency to review "6,000 of (the judge's) emails" over most of a decade. As that review was underway, the attorney complained yet again, this time alleging the judge "made inappropriate and biased comments on and off the record during a . . . hearing." It is not clear from the opinion what remarks were made, to whom, and what bias was perceived.
The agency then informed the judge "at 3:00 p.m." of "a fact-finding meeting scheduled for the following morning in" another city. This short-noticed "meeting was conducted to provide WCJ with an opportunity to respond to the charges." This afforded the judge an opportunity "to view the emails that were discussed and to take notes, but she was not permitted to retain copies of the emails." It is similarly unclear how many of the 6,000 were actually reviewed. The Judge then filed a response to the charges.
Ultimately, the agency alleged violations of the Code, the IT Policy, and work expectations. The charges included:
(1) sending emails and sharing information with an outside party who conducts business with the Commonwealth regarding workers’ compensation cases; (2) engaging in ex parte communications; (3) using her Commonwealth email account to send and receive personal emails and purchase items; (4) using her email signature block when corresponding with outside parties; (5) making inappropriate and unprofessional remarks in emails; and (6) making inappropriate and concerning remarks on and off the record during a workers’ compensation hearing.
Multiple sections of the Code of Ethics, similar to Florida's, were asserted as bases for these allegations. Pennsylvania does not apply its broad Code of Judicial Conduct to its workers' compensation judges but has a separate code specifically for them. That path has been tried in Florida, but the effort was abandoned in favor of statutorily adopting the Code. The adoption is not perfect, as the Code addresses things like running for election that are patently inapplicable. However, it is a reasonable touchstone on the vast majority of topics.
The judge appealed to the Civil Service Commission and was afforded a hearing. The Commission concluded the agency "failed to present credible sufficient evidence that WCJ had violated any provision of the Code, the Policy, the Directive, the IT Directive, or the Expectations." The Commission took issue with the reliability of the effort to capture the various email communications. It specifically noted that the hearing transcript for the alleged instance of "remarks on and off the record" did not demonstrate anything "which could be categorized as discourteous conduct.”
As a side note, the allegation was "on and off the record," but the transcript reviewed by the Commission would not necessarily contain off-the-record comments. I strive to remain "on the record" in such interactions for this precise reason. In the event of differing perceptions of what was said and how, the record is an important tool. At the conclusion, the Commission sustained the judge's appeal and directed she be reinstated, paid back wages, and otherwise compensated.
The court, reviewing the Commission decision, reminded that "Questions of credibility and the weight to be accorded evidence are determined by the Commission." Those conclusions are not, in most instances, subject to appellate review. The Court found no fault with the Commission's factual conclusions and affirmed the reinstatement, etc. It was not unanimous. One judge dissented.
The dissent concluded that the agency had "presented substantial, credible evidence establishing just cause for its removal of" the judge. It noted "the record clearly established" the judge "committed numerous violations of the Code of Ethics for WCJs," and "other standards of conduct for Commonwealth employees."
The dissent concluded that the judge "violated the Code of Ethics in copious email communications with her paramour, a workers’ compensation attorney (Attorney), over the course of several years." Further, that the judge had "disclosed to (an/the) Attorney internal work-related communications." These included emails with injured workers' "personal information," and about "cases that were not yet released for publication." Internal emails between the judge "and her colleagues discussing and analyzing workers’ compensation case law" were also noted.
The dissent concluded that
"forwarding internal, confidential communications to Attorney, who regularly appeared before the WCJs whose discussions she shared, not only violated the Code of Ethics, but it clearly demonstrated that she is unfit to serve as a WCJ."
It notes that
"some of the emails . . . forwarded to Attorney conspicuously contained the word 'Confidential' in the subject line, and one document she forwarded to him stated, 'This is an internal document not approved for distribution outside of the Department of L[abor] & I[ndustry].'"
The dissent argues that thus, "evidence contradicts the Commission’s determination that the emails did not contain any confidential information." The dissent seems troubled by an appellate review standard that defers to the factual determinations of the Commission in contrast to the facts present in the record.
The dissent concludes that "the uncontroverted evidence established" the judge "failed to avoid the appearance of impropriety by intentionally sharing" those "internal communications and documents." It stresses that by "repeatedly and knowingly divulging confidential information to Attorney, the judge not only conveyed the appearance of impropriety, she also failed to “uphold the integrity and independence of the workers’ compensation system.”
The distinctions are intriguing. In Florida, the same Code applies to all judges. The appearance of impropriety standards is systemic and difficult at times to define and interpret. A major point of comparison is perhaps the due process afforded. In Florida, accusations are investigated and the agency head has the authority to reach conclusions regarding probable cause. If that is found, then a written report is provided to the judge and s/he may file a response to any such allegations. The report and response may be provided to the Governor for review, and s/he may take action as deemed appropriate. There is no civil service protection in Florida, no hearing is required, and there is no appeal to the courts after the Governor makes a decision. Across America, there are similarities in state systems and a fair few distinctions. This instance illustrates that aptly.
Other critical distinctions include the variety of policies that bind the Pennsylvania judge. Whether an email violates an IT policy or other directive seems deemed less relevant than the "appearance of impropriety." Thus, while there appear to be more constraints on the Pennsylvania judge, the critical point in the Code seems to be the critical focus. The existence of a "blanket" recusal system is also intriguing; a methodology for a judge to pre-emptively preclude instances of probable or potential conflict. As representation evolves in cases, lawyers appearing and withdrawing, such a process would be challenging.
With the information provided, the reader can decide whether the Pennsylvania Judge should or should not have remained terminated. But the above is noteworthy regardless. What else? Note that the complaints started years before the decision. There were many complaints and some seem to be curious (a judge cannot compliment a lawyer unless the lawyer's client will win the case?). In 2021, a process begun in 2017 concluded. That is a long process and likely frustrating for all involved.
Easy lessons: Judges should use personal email accounts for non-work messages. Years ago a complaint investigation led me to review a sting of emails. I was astounded at their length, detail, and irrelevance to work issues. Judges should respect the privacy and confidence of peers. Lawyers should accept that judges are not perfect. We may get a decision wrong (just because an appellate body interprets a law does not mean a judge was anything but mistaken when entering an earlier decision on that point that is at odds with what the court later decides). Lawyers who believe sincerely that there is a reason for a judge not to preside should take the initiative of filing a motion to disqualify.
In all, a troubling decision; an interesting outcome. The distinctions between the two systems are highlighted. That anyone (dissent) views the judicial behavior as violative of the "appearance" standard illustrates that there is subjectivity in that broad prohibition. An "appearance" may well be in the eye of the beholder, and thus a challenge to predict or obey.
