Monday, April 1, 2002
Page 1
C.A. Upholds WCJ’s Firing for Late Rulings, ‘Inappropriate’ Conduct
By KENNETH OFGANG, Staff Writer/Appellate Courts
The Department of Industrial Relations acted within its authority when it fired a workers’ compensation judge who consistently filed his decisions late and continued to hear cases involving two women lawyers with whom he was trying to form personal relationships, the Court of Appeal for this district has ruled.
A Feb. 27 ruling by Div. One denying John D. Young’s petition for writ of mandate was certified Friday for publication.
Young was terminated in 1998, after less than five years on the job, on grounds incompetence, inefficiency, inexcusable neglect of duty, dishonesty, discourteous treatment of others, misuse of state property, other failure of good behavior and unlawful discrimination, including harassment.
His termination was upheld by the State Personnel Board, and his petition for writ of mandate was denied by Los Angeles Superior Court Judge Dzintra Janavs.
Warning Documented
According to the administrative record, Young had been warned by his presiding judge that his decisions were frequently being filed more than 90 days after submission. When Young responded that his understanding of the rule was that he could comply by turning in a handwritten decision to his secretary within the time period and filing the typed, signed-decision later, the presiding judge told him otherwise.
Young’s response was that there was a difference of opinion and that some of the other WCJs had the same understanding he did. The presiding judge, according to the testimony, warned him he would be held accountable if his decisions were not “filed in the record” within the 90 days as required by statute.
Young was found to have sworn falsely on eight occasions that he had no cases under submission for more than 90 days.
The State Personnel Board also found that he had acted improperly with respect to two lawyers representing insurers, Nona Rentzer of the State Compensation Insurance Fund and Marcia Donald of CIGNA. In each instance, the board found, he had asked the lawyers to socialize with him, sent them cards and notes, telephoned them with respect to personal matters, and continued to hear their cases.
Both lawyers said they found the conduct disturbing.
‘Cause for Discipline’
The board found that while Young’s conduct did not constitute sexual harassment, “it was extremely inappropriate and constituted cause for discipline.”
In seeking to overturn the decision, Young challenged the validity of the DIR’s rules governing discipline of WCJs. He also claimed that the evidence in the record was insufficient to support the board’s findings, particularly the finding of dishonesty.
Young contended that the disciplinary rules violate Labor Code Sec. 123.6. The statute, enacted in 1993 in response to charges of unethical conduct by various WCJs, applies the Code of Judicial Ethics to WCJs and requires the administrative director to adopt ethics rules that are “[t]o the extent possible…consistent with the procedures established by the Commission on Judicial Performance for regulating the activities of state judges.”
Under the rules, which took effect in 1995, ethics complaints against WCJs are considered by an advisory committee made up of five public members, two lawyers, and two WCJs. The committee recommends disciplinary actions to the administrative director.
An accused WCJ has the right to be informed of the nature of the charges and to submit a response. But, unlike in the case of state judges facing discipline by the CJP, there is no discovery and no hearing before an impartial factfinder until after termination.
WCJs have the same post-termination rights as other civil servants, including that of appeal to the personnel board. But Young maintained that the lack of adequate pre-termination remedies, the power of the administrative director to act unilaterally, and the lack of specific provisions for discipline short of termination violate the statute.
Presiding Justice Vaino Spencer, writing for Div. One, disagreed.
The statute, she explained, does not require that a WCJ be given all of the due process rights of a judge under investigation by the CJP. The intent of the Legislature, she said, was “to afford the administrative director considerable discretion in adopting regulations which gave effect to the Legislature’s intent” that WCJs be subject to oversight similar to that to which state judges are subjected.
Lawmakers, she elaborated, enacted Sec. 123.6 with full recognition that WCJs were already subject to the Civil Service Act. Nothing in the new legislation suggests that they intended to grant WCJs greater due process rights than other civil servants.
Spencer went on to say that there was sufficient evidence to support the board’s finding of dishonesty.
Young, she pointed out, acknowledged that he was told by the presiding judge that his interpretation of the 90-day rule was wrong. He also conceded that he “may have been naďve,” as well as “arrogant and unreasonable,” in clinging to his position that he had no cases over 90 days old because he had turned in handwritten decisions, the jurist noted.
Under the substantial evidence rule, Spencer said, it was up to the board to determine whether Young’s continued filing of affidavits, in the face of the presiding judge’s statement about accountability for failing to follow her interpretation of the rule, constituted dishonesty.
Attorneys who argued the case on appeal were Dennis F. Moss of Spiro Moss Barness & Harrison for Young and Department of Industrial Relations Counsel Sarah L. Cohen for the state.
The case is Young v. Gannon, B146236.
Copyright 2002, Metropolitan News Company