The Honorable Kenneth Peterson (Acting Chief Judge WCAB, Retired) and the Honorable Christine Gondak (Workers’ Compensation Judge, Retired) Provide Valuable Insight into the Ethics Advisory Committee During This Intriguing Interview Conducted by the Honorable Therese DaSilva (Workers’ Compensation Judge, Oakland District Office)
Life has many ways of testing a person’s will, either by having nothing happen at all or by having everything happen at once.Paulo Coelho
Workers’ compensation judges are bound to the Code of Judicial Ethics and are sworn to uphold the law in an impartial manner without impropriety that promotes public confidence. Easier said than done when managing a courtroom where a dozen or more cases are simultaneously set. A seasoned attorney, an inexperienced hearing representative, an unrepresented injured worker, a lien representative, a hostile witness or an interpreter or any combination thereof may appear on any case at any time. Strong communication skills, mental agility, attention to detail, and patience is required in addition to knowledge of the law. Given the adversarial nature of proceedings, the judge’s words are subject to interpretation. And, sometimes these differences give rise to an ethics complaint.
The Ethics Advisory Committee reviews all ethics complaints from the public against workers’ compensation administrative law judges. Retired Judge Cristine Gondak now serves on the committee. Judge Gondak logged almost 20 years as a full-time Judge in Santa Rosa and part-time Judge in Oakland, as well as four years as a Deputy Commissioner of the Workers’ Compensation Appeals Board in San Francisco. Retired Judge Ken Peterson has been a member of the committee since July of 2013. During his 19-year tenure with DWC, Judge Peterson held all judge titles, including Judge, Associate Chief Judge, Acting Chief Judge and Presiding Judge in Oakland.
Recently, after a Zoom judges’ book group meeting, we met these two members of the Ethics Committee to discuss their experience in light of the COVID-19 pandemic.
The Ethics Advisory Committee is charged with reviewing all ethics complaints filed against any WCJ in the state without exception?
Judge Peterson: Yes, there is no screening process. We see every complaint filed by anyone: from attorneys, from lien claimants, and from unrepresented injured workers, with the latter forming the bulk of the complaints. After injured workers, we hear most from lien claimants. Lien claimant complaints reflect frustration with continuances or being put behind other matters which may or may not take precedence under policy.
Judge Gondak: The complaints from attorneys are relatively rare, because after all, it is a closed system and attorneys must deal with each other and the judges day in and day out. Attorney complaints include judges not timely submitting and deciding cases, or not deciding all the issues. Cases being unsubmitted should be a rare occurrence, and so, the reasons for unsubmitting a case must be clear and based on sound grounds.
What are the most common types of complaints?
Judge Peterson: Complaints by injured workers tend to center around the judge’s treatment and behavior in the courtroom. We see complaints of a judge being too friendly to attorneys, such as commenting about personal things. If a judge says something to one of the attorneys that indicates personal knowledge about the attorney or a social activity, it may be innocuous to the attorneys and everyone else in the room, but could cause anxiety to the injured worker. For someone who has never had a court case before, even innocent behavior like laughing may take on great significance. The complaints serve as a good reminder of how circumspect judges must be in the court room, how demeanor is paramount.
Judge Gondak: Yes, in reality, many of the situations do not rise to the level of an ethical violation, but involve demeanor that gives rise to the appearance of unfairness and bias.
Judge Peterson: Among different district offices, judges treat pro per cases on calendar differently. Some judges take in pro per cases first, and attorneys may complain about a long wait for their cases to be called. In response to those complaints or perhaps due to personal preference, judges will take pro per cases last or there will be waiting time in the hearing room or listening at length on the telephone. The unrepresented injured worker will see or hear a parade of attorneys, and may become offended by the negotiation process of wheeling and dealing. Efficiency sometimes backfires. All of the judges hear dozens of cases a week. A crowded calendar is certainly one of the constant challenge for the judges.
How does the committee take action on a complaint?
Judge Peterson: We are charged with deciding whether there is a specific violation of the California Code of Judicial Ethics. Often, the discussion will focus on what is not a clear violation, but rather on conduct that resulted in a complaint, which could have been prevented. There is a careful combination of pragmatism and focusing on ethical issues only. But if an investigation is warranted, it is referred to the Chief Judge. The committee determines the scope of the investigation, in terms of what additional information is required to enable a recommendation to be made. The system is anonymous: the complainant, the judge, and others involved are not identified. This insulates all parties against potential bias or being judged based on their reputation. Investigations are carried out by Associate Chief Judges or Presiding Judges. There is a good system in place where complaints against judges in the north will be investigated by a PJ or Associate Chief in the south and vice versa in order to further prevent bias or prejudgment.
Judge Gondak: After completion of an investigation, the committee will review the report and determine whether an ethical violation occurred. The committee itself does not recommend specific action to be taken against a judge in the event an ethical violation is found. This is up to DWC. We just say yes, there was an ethical violation or no, there was not.
Committee members include former practitioners representing both sides of the bar, as well as employers, insurers, and organized labor. Do these members have an understanding of the demands of judges during busy hearing days?
Judge Peterson: There could be an assumption made that former practitioners have one perspective only, but we almost always can reach consensus as to what should be done. Within the committee, almost everyone has had many years of experience in the workers’ compensation system and many of the members have worked in several roles, such as defense attorneys turned applicant attorneys. My first job was as a claims adjuster. It is a broad based group in terms of different kinds of experience.
Judge Gondak: The committee functions well because we all take the tasks seriously. It is interesting because when the committee reviews a new complaint, right from the outset the group has a sense as to what is worth pursing and what is not. So, the committee at large has a sense of the difficult job judges have juggling several cases at a time along with other responsibilities and demands of the office.
Can attorneys help in reducing ethics complaints against judges?
Judge Peterson: I know from personal experience that being a judge is a hard job but it is critically important for judges to be beyond reproach. The public needs to see judges as fair and impartial people and it is easy to lose track of this in the daily constant onslaught work in the office and in the hearing room. Processing the work needs to be balanced with being patient.
We try to remember judges are human. It is not an ethical violation to become angry, it is what you do and say afterward that can be a problem. Also, the committee’s work has been used by the DWC in training for judges.
Judge Gondak: Perhaps the virtual world of hearings has ameliorated some problems, because judges have lessened waiting around by setting a time for parties to call back on their case. Attorneys should realize that the complaints are not unique to judges. Injured workers will complain about attorneys to us and to the State Bar if they feel betrayed because their attorney was too friendly with opposing counsel or if they feel forced to settle because their attorney just wants to be done with the case and have other things that are more important to focus on. So, each attorney plays an essential role in maintaining decorum and integrity of the court and the good standing of the judges.
The Ethics Advisory Committee, established in 1995 by Title 8, California Code of Regulations, section 9722, reviews all ethics complaints from the public against workers’ compensation administrative law judges. The committee is comprised of: a member of the public representing organized labor; a member of the public representing insurers; a member of the public representing self-insured employers; an attorney who formerly practiced before the Workers’ Compensation Appeals Board and who usually represented insurers or employers; an attorney who formerly practiced before the Workers’ Compensation Appeals Board and who usually represented applicants; a presiding judge; a workers’ compensation administrative law judge (WCJ) or retired WCJ; and two members of the public outside the workers’ compensation community. The Ethics Advisory Committee meets quarterly and members serve without compensation.