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Friday, September 8, 2017

Proposed New Code of Conduct for NJ Judges of Compensation

The Department is proposing repeals, amendments, and a new rule, which would result in the adoption of a new Code of Conduct for Judges of Compensation (Code). The proposed adoption of a new Code is prompted by the Supreme Court of New Jersey (Supreme Court) having recently adopted a revised New Jersey Code of Judicial Conduct, effective September 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 existing 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 only follows that with the recent revision of the New Jersey 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 New Jersey Code of Judicial Conduct. As to the nature of the revisions to the New Jersey Code of Judicial Conduct recently made by the Supreme Court, which are reflected in the proposed new Code of Conduct for Judges of Compensation, the December 12, 2014 letter from Deborah T. Poritz, Chief Justice (Ret.), Chair of the Ad Hoc Committee on the Code of Judicial Conduct to Chief Justice Stuart Rabner.

In that document, the Committee Chair explained, for example, 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 Chair, 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 rulemaking, most of those 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 New Jersey 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 at 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 this notice of proposal, this notice is excepted from the rulemaking calendar requirements, pursuant to N.J.A.C. 1:30-3.3(a)5.

Rule Proposal: 49 N.J.R. 2887(a), September 5, 2017.