Uproar After Chief ALJ Forces Another Judge to Resign

Tuesday, April 10, 2018 | 0

What began as an official complaint against a doctor has ballooned into a Texas-sized drama, with one administrative law judge forced to resign and the chief judge now facing calls for her own dismissal.

The controversy has attorneys, former judges, legislators and medical groups sounding the alarm over what it could mean for workers' compensation appeals and the impartiality of judges who hear the appeals.

The story goes back years and involves whistleblowing by the doctor, alleged retaliation against him, allegations of inappropriate behavior toward women, the downside of political appointments, and the very nature of the administrative appeals process in the Lone Star State.

Administrative Law Judge Hunter Burkhalter was asked to resign in February by Chief Judge Lesli Ginn, after nine years on the bench, after he ruled against the Texas Medical Board on the doctor's alleged behavior toward three female patients.

In a letter to Gov. Greg Abbott, published by the Austin Chronicle news site, Burkhalter called Ginn's action "shocking," and he urged the governor to not reappoint her when her term expires in May.

"I'm very concerned about the effect this will have on my clients and on the independence of judges' decisions now," said John Pringle, a lawyer in Austin who represents insurance companies and individuals in administrative violation proceedings. 

"The main problem is that administrative law judges will be scared to death to rule against a prosecuting agency, for if they complain to the chief judge, they may get fired like Burkhalter," said Ron Beal, a law professor at Baylor University who has specialized in administrative law.

Ginn has the statutory authority to fire other judges, Beal said. But the action may be unprecedented since the state moved in 1991 to set the administrative law bench up as an independent agency, insulated from the influence of state agencies and politics. Burkhalter's letter painted a picture of a chief judge who is "extremely introverted," isolated, incompetent and vengeful, and who has damaged the administrative appeals process and added to case backlogs.

"In short, Ms. Ginn was handed an agency that was not broken, but she is slowly but steadily breaking it," Burkhalter's letter said. 

Abbott's press office did not respond to requests for comment. But at least one other former judge has written to the governor, a state senator has said he is reviewing the charges, and a state representative has asked the Texas Bar Association to investigate, the Chronicle report said.

A Bar Association spokeswoman said she could not comment on a pending request, but said that it generally takes 30 days to respond to grievances, and investigations can take months.

The case began with Lakeway, Texas, neurologist Robert Van Boven, who filed complaints against a hospital, alleging faulty care that led to patient deaths. He also filed lawsuits, charging the hospital with retaliation for his whistleblowing, according to a report by the Texas Medical Association. 

Then, in 2017, three female patients accused Van Boven of "boundary violations" and unprofessional behavior, news reports show. 

That's where Burkhalter comes in. The Texas Medical Board, the state physician-licensing agency, prosecuted the case against the doctor, but Burkhalter wrote in a "proposal for decision" last fall that there wasn't enough evidence against Van Boven to warrant action. With a proposal for decision, state agencies can accept the ruling, tweak it or appeal. 

The Texas Medical Board, after much discussion, accepted Burkhalter's ruling.

Pringle and others knowledgeable about the case said the board probably felt it wouldn't succeed on appeal. A few weeks later, on Jan. 10, the medical board's director wrote a letter to Ginn accusing Burkhalter of bias and making comments about the witnesses' physical appearance, according to the board director's letter, which also was published by the Austin Chronicle.

Ginn told Burkhalter on Feb. 22 that he must resign or be terminated. This was after she had promoted him to master administrative law judge, which came after his Van Boven ruling, staff members and attorneys said.

Ginn's action has sent aftershocks throughout administrative law circles across the state, with many observers saying it could have a chilling effect on judge's rulings.

"If I'm a judge and I make a ruling for a non-state party, I'm thinking, what happens to me? Will I get fired now?" Pringle said.

Retired Chief Administrative Law Judge Cathleen Parsley wrote her own strongly worded letter March 21 to state Sen. Kirk Watson, D-Austin, urging the Senate not to confirm Ginn if she is appointed to another term.

"One might differ with the outcome Judge Burkhalter reached in Van Boven. However, when the chief ALJ cannot or will not protect the decisional independence of the ALJs, it damages the rule of law and SOAH's independence," Parsley wrote. "Following this episode, referring agencies may decide they can, by filing complaints with the chief ALJ, influence the decisions made by the ALJs, who will fear actions adverse to their employment if they do not find in favor of the agencies."

Others at the State Office of Administrative Hearings declined to talk on the record to WorkCompCentral, saying Ginn had forbidden any public comment. But speaking on condition of anonymity, staff members bore out Parsley's concerns and said that Ginn's lack of ability as an administrator has led to several vacancies at the office and has caused critical backlogs across the system.

The Houston office, for example, is still without telephones and internet service, 18 months after Hurricane Harvey flooded the city, one office employee said.

Ginn was appointed by Abbott in 2016 to a two-year term after she served as a deputy attorney general when Abbott was Texas attorney general, from 2002 to 2015.

"She's a political appointment gone bad," one attorney said.

The Texas Medical Association, which represents doctors statewide, also spoke out on Ginn's actions.

"The purpose of SOAH is to insulate the judge from the prosecutor to ensure that all parties — both state agencies and those they are trying to discipline or regulate — are treated fairly and equitably according to the law," association Vice President Steve Levine said in a statement. "SOAH judges must be fair and impartial, not biased for or against any of the parties that appear before them. That is the American system of justice."

Ginn and the Texas Medical Board did not respond to requests for comment.