Labor, attorneys question closing of interviews for workers comp judge

Attorneys and labor groups say the process for selecting new workers compensation judges lacks transparency and stacks the deck against workers.

The issue was raised when a state nominating committee decided to close interviews with candidates for an administrative law judge position in Topeka on Thursday.

The state has 10 administrative law judges who hear cases and issue decisions when a workers compensation claim is contested.

The meeting was to select a replacement for Judge Brad Avery, whom the committee voted against retaining in April by a 6-1 vote.

Avery is the first judge to be ousted from office since the establishment of the Workers Compensation and Employment Security Boards Nominating Committee in 2013. The creation of the board has been coupled with various other changes to workers compensation laws that plaintiff’s attorneys say favor businesses over workers.

Frank Taff, a Topeka attorney, brought a video camera to the state nominating committee meeting and questioned how the interviews could be private under the Kansas Open Meetings Act. Taff said he was concerned about the appointment process and quipped that it “seems to be very private.”

The interviews were conducted at the Kansas Chamber of Commerce’s office in Topeka.

Eric Stafford, the chamber’s legislative director and chair of the committee, said that the committee has previously sought guidance from the Kansas Attorney General’s Office and argued that it is allowed to hold interviews in private as long as its votes remain public.

However, Clint Blaes, director of communications for Attorney General Derek Schmidt, contradicted that in an e-mail Thursday afternoon.

“Did our office say it was ok for the Workers Compensation and Employment Security Boards Nominating Committee to meet in executive session for the purpose of conducting interviews?” Blaes wrote. “The answer to that question is no.”

Stafford said in an e-mail that he “never stated today, or intended to state, that they specifically emailed us with answer to a specific question on executive session.” He sent reporters a general PowerPoint from the Attorney General’s Office on open meetings law that lists personnel matters as a common subject for “executive session.”

Harvey Sorensen, a Wichita attorney who sits on the committee, had also told Taff that the committee had received guidance on the issue from the Kansas Department of Labor, but would not name a specific attorney at the agency.

The Kansas Department of Labor told The Eagle that questions about open meetings fell outside its scope. It also noted that the committee is independent from the agency.

Taff said he saw nothing in the open meetings act that allows interviews to be conducted in private.

“The public’s been kept pretty much in the dark about this,” Taff complained. He also questioned the decision to hold the meeting at the chamber’s office in Topeka, which he argued sends a signal that the committee favors employers over workers.

Stafford addressed these criticisms during the open portion of the meeting.

“I’ve heard that folks are upset that we’re meeting here at the chamber. If we want to meet at the AFL-CIO … or Panera, I don’t care. Wherever folks want to meet is perfectly fine with me,” Stafford said. “I just offered because we’re in Topeka. … We’re not doing anything in secret here. We’re not trying to cover anything up.”

The lone member of the committee to vote against closing the meeting was Bruce Tunnell, executive director of the AFL-CIO. Tunnell also was the dissenting vote when the committee voted to remove Avery from office.

The labor union has claimed that Avery was thrown out “because of a perception that his rulings too often favored injured workers” rather than because of his job performance.

The committee also includes representatives from the Kansas Chamber of Commerce, the National Federation of Independent Businesses and the insurance industry.

Plaintiff’s attorneys say the group is unfairly slanted toward business interests.

“I don’t think you can get a fair trial if the employers are picking the judges,” said Jeff Cooper, workers compensation chair for the Kansas Association for Justice, an association for trial lawyers.

Tunnell made similar claims during a break.

“The whole thing’s stacked up for business. And they want someone who’s going to represent their best interests,” Tunnell said.

Despite these concerns, the committee ended up selecting one of the candidates whom Tunnell said he could support, Julie Sample, who previously served on the Workers Compensation Appeals Board from 2003 to 2011.

Sample was selected by a 5-2 vote.

Other members of the committee say this disproves the claim that the committee is set up to favor business.

“I think labor’s constantly looking for a bogeyman and there isn’t one,” said Stafford.

Steve Kearney, another member of the committee, agreed.

“I think it’s an open and transparent process, as much as any other. … It isn’t about just business and labor. It’s about what’s right and who’s going to make balanced decisions,” he said.

Tunnell argued that if two members of the media had not been present for the vote, then the board would have selected another candidate. Sorensen initially pushed for the selection of another candidate before Sample was chosen.

Tunnell said that during the interview process the questions were clearly designed to determine which candidates would favor employers over workers.

Sample’s nomination will be forwarded to Labor Secretary Lana Gordon, who has the power to accept or reject it. The committee has previously selected two judges to fill vacancies in Wichita, Ali Marchant and Gary Jones.

This story was originally published July 30, 2015 at 8:04 PM with the headline "Labor, attorneys question closing of interviews for workers comp judge."