Could Connecticut’s Judicial Review Council discipline a per diem workers’ compensation commissioner?

Plain-English summary

In 2007, Connecticut’s Judicial Review Council asked whether its disciplinary authority covered acting workers’ compensation commissioners appointed on a per diem basis. Attorney General Richard Blumenthal answered yes. The statute gave acting commissioners the same powers and duties as other compensation commissioners, and the council’s jurisdiction did not exclude them based on how they were appointed.

The AG also said the council could investigate alleged misconduct committed while a person served as an acting commissioner even if the current chairman no longer intended to appoint that person. The example involved someone who remained statutorily eligible for future appointment. Censure remained possible, although suspension and removal did not apply to someone currently inactive. The opinion expressly left open the status of former acting commissioners who no longer met the appointment criteria.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Acting compensation commissioners at the time

The opinion treated per diem appointees as subject to the same ethics oversight as commissioners appointed through the General Assembly. Their identical decision-making authority drove the result.

Judicial Review Council staff at the time

The AG said a written complaint about conduct during an acting commissioner’s service remained within the council’s jurisdiction if the person was still eligible for appointment and the complaint met statutory timing limits.

Complainants at the time

A current chairman’s stated intention not to reappoint the former acting commissioner did not automatically end the council’s ability to investigate or censure.

Common questions

Q: Was a per diem acting compensation commissioner outside judicial discipline?
A: No. The opinion said the council’s jurisdiction applied regardless of the appointment method.

Q: Could a complaint proceed after an acting commissioner stopped serving?
A: Yes, on the facts discussed: the person remained eligible for appointment and the timely complaint concerned conduct while serving.

Q: Did the AG decide cases involving people no longer eligible for appointment?
A: No. A footnote explicitly excluded that situation from the opinion.

Background and statutory framework

Conn. Gen. Stat. § 31-280(a) gave acting compensation commissioners the powers and duties of other commissioners. The AG read that provision with Conn. Gen. Stat. § 51-51h and Conn. Gen. Stat. § 51-51l(a), governing council jurisdiction and written complaints. Conn. Gen. Stat. § 51-51n(a) allowed censure, which the AG saw as an effective remedy even after current service ended.

Citations and references

Statutes cited in the opinion: Conn. Gen. Stat. § 31-280(a); Conn. Gen. Stat. § 51-51h; Conn. Gen. Stat. § 51-51l(a); Conn. Gen. Stat. § 51-51n(a).

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Opinion page: https://portal.ct.gov/ag/opinions/2007-formal-opinions/peter-a-clark-executive-director-judicial-review-council-formal-opinion-2007032-attorney-general-sta

Original opinion text

Peter A. Clark, Executive Director, Judicial Review Council, Formal Opinion 2007-032, Attorney General State of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

December 12, 2007

Peter A. Clark

Executive Director

Judicial Review Council

505 Hudson St., PO Box 260099

Hartford, CT 06126-0099

Dear Attorney Clark:

Thank you for your letter requesting my opinion on two questions: (1) whether the Judicial Review Council (“the Council”) has jurisdiction over misconduct committed by acting workers’ compensation commissioners appointed on a per diem basis pursuant to Conn. Gen. Stat. § 31-280(a) (hereinafter “acting compensation commissioners”); and (2) whether the Council has jurisdiction over misconduct committed by an individual formerly serving as an acting compensation commissioner, and evidently still meeting the criteria for such an appointment, but whom the chairman of the Workers’ Compensation Commission no longer intends to employ in that capacity.

My answer to both questions is in the affirmative. As explained herein, the Council’s exercise of jurisdiction over acting compensation commissioners, including those no longer serving in such a capacity but still eligible to do so, is permitted by the Council’s enabling statutes. Exercising jurisdiction over such individuals would promote the public’s confidence in the impartial and effective administration of justice and provide ethical guidance to present and future compensation commissioners.

Workers’ compensation commissioners are appointed in one of two ways. General Statutes § 31-276 provides that the Governor shall nominate compensation commissioners, who shall be appointed by the General Assembly. In addition, General Statutes § 31-280(a) permits the chairman of the Workers’ Compensation Commission, within available appropriations, to “appoint acting compensation commissioners on a per diem basis from among former workers’ compensation commissioners or qualified members of the bar of this state.” Conn. Gen. Stat. § 31-280(a). While appointed differently, the authority and duties of compensation commissioners appointed pursuant to Conn. Gen. Stat. § 31-276 and acting compensation commissioners appointed pursuant Conn. Gen. Stat. § 31-280(a) are identical. See Conn. Gen. Stat. § 31-280(a)(“Any acting compensation commissioner . . . shall have all the powers and duties of compensation commissioners.”). All workers’ compensation commissioners, no matter how appointed, are entrusted with the vital public responsibility of administering the Workers’ Compensation Act, Conn. Gen. Stat. § 31-275 et seq., to provide compensation for those injured during the course of employment. See Conn. Gen. Stat. §§ 31-276, 31-278. In particular, compensation commissioners are empowered to decide claims and questions arising under the Workers’ Compensation Act, and granted “all powers necessary” to do so, including the power to summon and examine witnesses, direct the production of documents and order depositions. See Conn. Gen. Stat. § 31-278.

The Council’s jurisdiction over workers’ compensation commissioners, set forth in Chapter 872a of the General Statutes, is not expressly or implicitly limited to compensation commissioners nominated by the Governor and appointed by the General Assembly, as opposed to acting compensation commissioners. To the contrary, Conn. Gen. Stat. § 51-51h provides, without exclusion or qualification, that the Council’s investigative and adjudicative authority “shall apply to . . . compensation commissioners.” Conn. Gen. Stat. § 51-51h. Indeed, pursuant to Conn. Gen. Stat. § 51-51l(a), the Council “shall investigate every written complaint brought before it alleging misconduct under section 51-51i.” Conn. Gen. Stat. § 51-51l(a) (emphasis added). Section 51-51i(c) defines the types of misconduct that the Council may investigate and discipline to include misconduct equally subject to commission by all compensation commissioners, regardless of the method of their appointment. For example, the Council may discipline a compensation commissioner for any “wilful violation of any provision of the code of ethics for workers’ compensation commissioners.” See Conn. Gen. Stat. § 51-51i(c). The obligations of that code apply, without exception, to “all workers compensation commissioners,” including acting compensation commissioners. See Code of Ethics For Workers Compensation Commissioners (available on line at http://www.ct.gov/jrc)(emphasis added). Thus, nothing in the Council’s enabling statutes precludes the exercise of jurisdiction over acting compensation commissioners.

As a matter of policy, it would be anomalous and potentially harmful to construe the Council’s disciplinary jurisdiction to exclude acting compensation commissioners, who possess authority and responsibilities equivalent in all respects to those exercised by compensation commissioners appointed by the General Assembly. The Council’s enabling statutes do not suggest any legislative intent to permit one compensation commissioner to commit misconduct without the possibility of discipline, while another compensation commissioner would be subject to discipline for the very same act simply based on differences in the method of appointment. "It is . . . a rule of statutory construction that those who promulgate statutes or rules do not intend to promulgate statutes or rules that lead to absurd consequences or bizarre results. " State v. Harrison, 228 Conn. 758, 765 (1994).

The legislative history of Public Act 92-160, which placed compensation commissioners under the Council’s jurisdiction, supports the conclusion that the Council may discipline misconduct committed in the exercise of the authority of a compensation commissioner, without regard to how that authority was bestowed. See Senate Sess. May 2, 1997 (remarks of Senator Harper)(noting that the act “places compensation commissioners who make decisions on worker's compensation cases under the jurisdiction of the Judicial Review Council and subjects them to the statutes on removal, suspension and censure of judges.”)(emphasis added). Clearly, an acting compensation commissioner is fully authorized to make decisions on compensation cases.

In sum, therefore, I conclude that acting compensation commissioners appointed on a per diem basis pursuant to Conn. Gen. Stat. § 31-280(a) are fully subject to the Council’s jurisdiction to the same extent as compensation commissioners appointed by the General Assembly pursuant to Conn. Gen. Stat. § 31-276.

In response to your second question, I also conclude that the Council retains jurisdiction to investigate and, if appropriate, punish misconduct committed by a former acting compensation commissioner while he was a commissioner, whom the chairman of the Workers’ Compensation Commission no longer intends to employ in such a capacity, but who continues to meet the statutory eligibility criteria for future appointments.1

Nothing in the Council’s jurisdictional provisions explicitly precludes the Council from exercising jurisdiction in the circumstances you outline. As noted, Conn. Gen. Stat. § 51-51l(a) requires the Council to investigate “every written complaint” alleging misconduct under § 51-51l committed by a compensation commissioner. Conn. Gen. Stat. § 51-51l(a)(emphasis added). The only explicit limitation on the Council’s jurisdiction to investigate such complaints is set forth in Conn. Gen. Stat. § 51-51l(d), which provides that “[n]o complaint alleging conduct under section 51-51i shall be brought under this section but within one year from the date the alleged conduct occurred or was discovered or in the exercise of reasonable care should have been discovered, except that no such complaint may be brought more than three years from the date the alleged conduct occurred.” Conn. Gen. Stat. § 51-51l(d). You have informed me that the complaint referenced in your letter satisfies these jurisdictional prerequisites – that is, the complaint is in writing, it concerns conduct committed while the respondent was an acting compensation commissioner, and it is not barred by § 51-51l(d)’s one-year statute of limitations.

The exercise of jurisdiction in these circumstances is supported by compelling policy considerations. The Supreme Court has explained the purposes of the Council’s disciplinary function in the closely related context of judicial discipline:

The purpose of sanctions in cases of judicial discipline is to preserve the integrity and independence of the judiciary and to restore and reaffirm public confidence in the administration of justice. The discipline we impose must be designed to announce publicly our recognition that there has been misconduct; it must be sufficient to deter the judge from again engaging in such conduct; and it must discourage others from engaging in similar conduct in the future. Thus, we discipline a judge not for purposes of vengeance or retribution, but to instruct the public and all judges, ourselves included, of the importance of the function performed by judges in a free society. We discipline a judge to reassure the public that judicial misconduct is neither permitted nor condoned. We discipline a judge to reassure the citizens that the judiciary of their state is dedicated to the principle that ours is a government of laws and not of men.

In re Dean, 246 Conn. 183, 206 (1998)(internal citation and quotation omitted); see also Conn. Gen. Stat. § 51-51g (providing that the Council was established to, inter alia, foster the dignity and integrity of the judiciary).

These purposes would be significantly undermined if an acting compensation commissioner is immunized from discipline for official misconduct simply because the current chairman of the Workers Compensation Commission indicates that he no longer intends to utilize his services. This result would not only invest the chairman with inappropriate control over the Council’s jurisdiction, but also potentially deprive the public of the above-described benefits flowing from the Council’s vigilant enforcement of its statutory charge.

Moreover, the stated intention of the chairman not to further employ the individual in question as an acting compensation commissioner does not moot the complaint against him because the Council retains the ability to issue effective relief. See, e.g., State v. Fabricatore, 89 Conn. App. 729, 743 (2005)(matter moot where the tribunal can no longer grant practical relief). Of course, certain remedies normally available to the Council, namely suspension and recommendation of removal, would not be available in a case involving a currently inactive compensation commissioner. However, the Council would retain the authority to issue a censure pursuant to Conn. Gen. Stat. § 51-51n(a), which would serve the practical and important purposes of bolstering public confidence in the fairness and integrity of the workers’ compensation system and providing ethical guidance to current and future compensation commissioners. In a closely related context, courts have held that the availability of relief furthering these purposes provides continuing jurisdiction to discipline retired judges. See, e.g., In re Johnstone, 2 P.3d 1226, 1233 (Alas. 2000); In re Cox, 658 A.2d 1056, 1057 (Me. 1995); In re Yaccarino, 502 A.2d 3, 30-31 (N.J. 1985). Notably, the Connecticut Supreme Court has affirmed the Council’s censure of a judge whose term expired without renomination during the pendency of the Council’s disciplinary proceedings. See In re Flanagan, 240 Conn. 157, 160 n. 1 (1997).

I also note that the individual in question apparently still meets the statutory eligibility criteria for appointment as an acting compensation commissioner. See Conn. Gen. Stat. § 31-280(a)(providing that former workers’ compensation commissioners or qualified members of the bar of this state are eligible for appointment as acting workers compensation commissioners.) Thus, despite the present Compensation Commission chairman’s intent not to again appoint him or her as an acting compensation commissioner, it is possible that a future chairman might do so. These facts provide additional support for the conclusion that the Council can and should exercise its jurisdiction. See Statewide Grievance Committee v. Burton, 282 Conn. 1, 14 (2007)(concluding that Statewide Grievance Committee retained authority to discipline disbarred attorney and holding: “The defendant has not been disbarred for life, but for a specified period of time. Accordingly, she may seek readmission to the bar when her term of disbarment expires and adjudication of her predisbarment conduct will provide the plaintiff with a more complete and accurate record of her background and character if she applies for readmission.”).

I hope the foregoing responds to your concerns. Please do not hesitate to contact me if I can be of further assistance on this or any other matter.

Very truly yours,

RICHARD BLUMENTHAL

ATTORNEY GENERAL

1 Your question does not involve, and this opinion does not address, the Council’s jurisdiction over a former acting compensation commissioner who no longer meets the criteria for appointment, for example where a former acting compensation commissioner qualified to serve in such a capacity by virtue of his membership in the bar resigns from the bar.