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Gelman: Proposed New Code of Conduct for NJ Judges of Compensation

By Jon L. Gelman

Monday, September 11, 2017 | 1098 | 0 | min read

The state Department of Labor and Workforce Development is proposing repeals, amendments and a new rule that would result in the adoption of a new code of conduct for judges of compensation.

Jon L. Gelman

Jon L. Gelman

The proposed adoption of a new code is prompted by the Supreme Court of New Jersey having recently adopted a revised New Jersey Code of Judicial Conduct, effective Sept. 1, 2016, which applies to judges who serve within the judicial branch of state government, as opposed to those, like judges of compensation, who serve within the executive branch of state government.

The current code of conduct for judges of compensation is reflected within the rules at N.J.A.C. 12:235-10.1 through 10.12 and was modeled on the New Jersey code of judicial conduct. Consequently, it follows that, with the recent revision of the code of judicial conduct, the Division of Workers' Compensation would want to update its code of conduct for judges of compensation so as to ensure that judges of compensation are held to the same exacting standards as are their counterparts in the judiciary.

Thus, the department is proposing the repeal of N.J.A.C. 12:235-10.1 through 10.12, and its replacement with N.J.A.C. 12:235-10 Appendix, which would contain a code of conduct for judges of compensation virtually identical to the recently revised judicial conduct code.

The nature of the revisions to the judicial code recently made by the Supreme Court are reflected in the Dec. 12, 2014, letter from Deborah T. Poritz, retired chief justice and chair of the Ad Hoc Committee on the Code of Judicial Conduct, to Chief Justice Stuart Rabner.

In that document, Poritz explained that in general, the committee had sought more precisely to describe the conduct prohibited (or permitted) by the rules, adding that language in the code had been modified, not necessarily to conform to the language found in the American Bar Association (ABA) model but, rather, to achieve the goals of clarity and specificity.

For example, the phrase "in all activities" at the end of Canon 2 was deleted as too vague. Also, the chair explained that, consistent with its goal of "certainty," it had unanimously recommended that the word "should" be changed to "shall" in every canon and rule where it previously existed, except in Canon 1, as is evident within the revised code itself.

According to the Poritz, this recommendation had followed the approach implemented in the revision of the 1990 ABA model code and found in the current model code.

Specifically, regarding format, the chair stated the following:

The committee members found that the disciplinary process had become more formal and public over the past several years and concluded, in that context, that the format of our code could be confusing and that it is sometimes difficult to differentiate between general principles, rules (the violation of which can result in discipline) and interpretive comments.
The committee, therefore, determined that there is a need for greater specificity in respect of those actions requiring discipline, but that aspirational goals found in our current code should be retained. That approach continues to build on both the bedrock principles under which our current system has operated and the over 30 years of New Jersey precedent interpreting the canons.

Thus, as does the ABA model code, the committee's proposal contains canons that express general principles of conduct followed by rules that prescribe specific standards of conduct.

As to the amendments proposed within this rule-making, most are technical in nature, either eliminating cross-references to the sections of N.J.A.C. 12:235-10 that are proposed for repeal and replacing them with references to the code of conduct for judges of compensation, which would be appended to N.J.A.C. 12:235-10; or changing other cross-references throughout the subchapter to reflect recodifications resulting from the repeal of N.J.A.C. 12:235-10.1 through 10.12.

In addition, the department is proposing new N.J.A.C. 12:235-10.13(a)4 (recodified as N.J.A.C. 12:235-10.1(a)4), which would include, as a cause for discipline or removal, failure to notify the director when the judge has reason to believe that a medical report, medical bill for services or medical finding has been altered, falsified or withheld by a licensed physician, dentist, chiropractor, osteopath, optometrist, physical therapist, medical technician, attorney or a representative of an insurance carrier or self-insured. 

This workers' compensation-specific provision appears within the current rules at N.J.A.C. 12:235-10.12. However, there is no corresponding provision within the revised code of judicial conduct. Consequently, in order to preserve this important prescription for judges of compensation, the department is proposing that it be added to the list of causes for discipline or removal, as recodified N.J.A.C. 12:235-10.1.

Finally, due to the proposed repeal of N.J.A.C. 12:235-10.1 through 10.12, the department is proposing that N.J.A.C. 12:235-10.13 through 10.23 be recodified as N.J.A.C. 12:235-10.1 through 10.11.

As the department has provided a 60-day comment period for the notice of proposal, this notice is excepted from the rule-making calendar requirements, pursuant to N.J.A.C. 1:30-3.3(a)5.

Claimants' attorney Jon L. Gelman is the author of "New Jersey Workers’ Compensation Law" and co-author of the national treatise "Modern Workers’ Compensation Law." He is based in Wayne, New Jersey. This blog post is republished with permission.


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