Executive Order

Executive Order No. 456: Industrial Accident Board nominating panel

Date: 12/18/2003
Issuer: Mitt Romney
Mass Register: No. 991
Superseding: Executive Order 323
Superseding: Executive Order 436

Table of Contents

WHEREAS, Chapter 23E of the Massachusetts General Laws governs the selection and appointment process for Administrative Judges and Administrative Law Judges of the Division of Industrial Accidents ("DIA"); and

WHEREAS, the Governor, with the advice and consent of the Executive Council, has the statutory authority to appoint and reappoint Administrative Judges and Administrative Law Judges for terms of six years pursuant to M.G.L. c. 23E, sections 4 and 5; and

WHEREAS, the Governor, with the advice and consent of the Executive Council, may, upon the request of the Commissioner of the DIA, recall any former Administrative Judge or Administrative Law Judge for a period or periods not to exceed one year pursuant to M.G.L. c. 23E, section 7; and

WHEREAS, public trust and confidence in the DIA's Division of Dispute Resolution begins with the process by which Administrative Judges and Administrative Law Judges are appointed; and

WHEREAS, the pre-eminent consideration for the selection of such individuals ought to be merit, including men and women who by intellect, work ethic, judgment, temperament, experience, competence and integrity demonstrate the capacity and commitment to sensibly, intelligibly, promptly, impartially and independently interpret and apply the laws; and

WHEREAS, judicial candidates should be drawn from a cross-section of our community, representing not only geographically diverse parts of the Commonwealth, but reflecting as well a diversity of our citizens; and

WHEREAS, nominees for the position of Administrative Judge and Administrative Law Judge are to be submitted to the Governor by an Industrial Accident Board Nominating Panel pursuant to M.G.L. c. 23E, section 9 consistent with the procedure established by the Governor in accordance with M.G.L. c. 23E, sections 4 and 5;

NOW, THEREFORE, I, Mitt Romney, Governor of the Commonwealth, by virtue of the authority vested in me as Supreme Executive Magistrate, do hereby revoke executive orders 323 and 436 and order as follows:

1.0 Panel and Scope: An Industrial Accident Board Nominating Panel ("Panel") is hereby established to advise the Governor with respect to the appointment and reappointment of all Administrative Judges pursuant to M.G.L. c. 23E, section 4, and Administrative Law Judges pursuant to M.G.L. c. 23E, section 5. The purpose of the Panel shall be to identify, interview and recommend to the Governor those individuals who are most qualified for appointment as Administrative Judges and Administrative Law Judges.

1.1 Membership: The Panel shall consist of thirteen members: the Governor's Chief Legal Counsel, the Director of Labor and Workforce Development , the Director of Business and Technology, the Commissioner of the DIA, the Senior Judge of the DIA and eight members to be appointed by the Governor, one of whom shall be a health care provider, one of whom shall be an attorney who does not practice workers’ compensation law, one of whom shall be an attorney who represents claimants in workers' compensation matters, one of whom shall be an attorney who represents employers or insurers in workers' compensation matters, two of whom shall be representatives of business and two of whom shall be representatives of organized labor. One of the representatives of business shall be the President of the Associated Industries of Massachusetts or his designee, and one of the representatives of organized labor shall be the President of the Massachusetts AFL-CIO or his designee. All appointed members of the Panel shall serve at the pleasure of the Governor and for a term of one year, or until such time as a successor member is appointed. The Panel members should be drawn from a cross-section of our community, representing not only geographically diverse parts of the Commonwealth, but reflecting as well a diversity of our citizens.

1.2 Panel Chair: The Commissioner of the DIA shall serve as Chair of the Panel.

1.3 Inability to Attend Meetings: Any member unable regularly to attend meetings of the Panel, including interviews of judicial applicants, unless other arrangements have been made as the Chair may allow, shall not be allowed to participate in voting, and to the extent permissible under M.G.L. c. 23E, section 9, may be removed from the Panel in the sole discretion of the Governor.

1.4 Violation of the Code of Conduct: Any violation of the Code of Conduct identified below in Section 1.5 by a Panel member shall bar participation by the member and may result in removal as the Governor may determine. All Panel members serve at the pleasure of the Governor as provided for under M.G.L. c. 23E, section 9 and may be removed without cause.

1.5 Code of Conduct for Panel Members: All persons serving as Panel members agree to abide by the following Code of Conduct during their service on the Panel:

1.5.1 Impartiality: No Panel member shall engage in conduct that reflects discredit upon the judicial selection process or discloses partisanship or partiality in the consideration of candidates. Panel members shall disclose to the Chair all current or past personal and business relationships with a prospective candidate. In addition to disclosure, a Panel member shall recuse herself, refrain from voting and absent herself from the room during discussions concerning any candidate whom the member believes she is incapable of considering impartially.

1.5.2 Advocacy: After the Panel certifies the names of qualified candidates to the Governor, no Panel member shall attempt, directly or indirectly, to further influence the decision of the Governor, the Governor's Chief Legal Counselor any member of the Executive Council, except in response to communications initiated by any of them. Except as otherwise provided in Section 6.7 of this Order, no attempt shall be made to rank such applicants or to comment publicly or to disclose any preference of the Panel concerning candidates. Panel members shall avoid giving preferential assistance to any candidate to the exclusion of any other candidate.

1.5.3 Confidentiality: No discussions, motions, opinions, votes or facts revealed during meetings. of the Panel may be directly or indirectly disclosed by any Panel member to any person other than another Panel member in accordance with this Code of Conduct. All substantive communications with applicants outside of meetings and interviews shall be conducted by the Chair or his designee and the Governor's Chief Legal Counsel.

1.5.4 Civility: All Panel members shall display courtesy and respect to all applicants as well as to other Panel members. Questioning of candidates that resembles techniques appropriate for cross-examination of a hostile witness is inappropriate for interview of candidates.

1.5.5 Panel Meetings: Meetings of the Panel, including meetings to interview candidates, shall be held at the time or times announced at previous meetings, or upon the call of the Chair, or upon the call of seven other members, with notice given at least seven days in advance to all members. The Chair shall, however, call a meeting as soon as possible after being informed by the Governor that a vacant or expired Administrative Judge or Administrative Law Judge term exists. Notice of any meeting may be waived by any member before or after the meeting, and attendance at a meeting shall constitute such waiver unless the member shall promptly after the beginning of the meeting object to the meeting on grounds of lack of notice.

2.0 Qualifications for Administrative Judges and Administrative Law Judges: The Governor will not nominate any person for a DIA judicial office who does not meet the following minimum qualifications. Any application that fails to conform to these minimum qualifications may be rejected by DIA administrative staff without further action or review by the Panel. In making its recommendations to the Governor, the Panel shall seek men and women who by ability, integrity, and temperament will impartially and independently interpret and apply the workers' compensation law. Persons shall be recommended without regard to age, race, religion, gender, physical disability, sexual orientation, or national origin. Prior to any submission of nominations for appointment or reappointment to the position of Administrative Judge or Administrative Law Judge pursuant to M.G.L. c. 23E, section 4, 5 or 7, the Panel shall review applications for such nominations and consider the following factors as set forth by statute:

(1) skills in fact-finding;

(2) basic understanding of human anatomy and physiology; and

(3) a bachelor's degree or demonstrated writing ability as evidenced by four or more years in positions in which writing skills are a major job responsibility. Such review shall be made on the basis of the application, experience, education and training of the applicant, writing samples, interviews, and any other information the Panel may require. When the application is for reappointment, the Panel shall require, in addition to any other information, a performance evaluation prepared by the Senior Judge and Commissioner. The performance evaluation shall be a written report that contains the following information:

(a) average time for the disposition of cases before the applicant, and, where applicable, a comparison of such applicant's speed of disposition with the other Administrative Judges or Administrative Law Judges;

(b) three decisions written and selected by the applicant;

(c) the total number of proceedings scheduled before the applicant and total number of orders and decisions filed;

(d) where applicable, the total number of cases decided by such applicant heard by an appellate body, and the number of such cases which were remanded for further proceedings;

(e) any decisions of an appellate body which specifically reference the candidate's judicial demeanor or temperament;

(f) at the discretion of the Commissioner, written complaints from attorneys received by the Commissioner regarding the candidate's judicial demeanor or temperament; and

(g) evidence of any demonstrable bias against particular defendants, claimants or attorneys.

In no instance shall a calculation of the number or percentage of orders or decisions made in favor of employees, insurers or employers be a part of any performance evaluation of an Administrative Judge or Administrative Law Judge.

2.1 Applicants for Administrative Judge Positions: All applicants must have a bachelor's degree or demonstrated writing ability as evidenced by four or more years in positions in which writing skills are a major job responsibility. Preference will be given for candidates who have been members of the Massachusetts bar for three or more years at the time of their application. Applicants who are not members of the Massachusetts bar shall be able to demonstrate at least five years of relevant professional experience. All applicants shall be citizens of the United States of America and residents of the Commonwealth of Massachusetts.

2.2 Applicants for Administrative Law Judge Positions: All applicants shall be a member of the Massachusetts bar in good standing at the time of the application or be a current or past member of the industrial accident board or reviewing board. Applicants who are members of the Massachusetts bar and are not current or past members of the industrial accident board or reviewing board shall have at least 5 years of bar membership. All applicants shall be citizens of the United States of America and residents of the Commonwealth of Massachusetts.

2.3 Code of Conduct for Applicants for DIA Judicial Office: All persons applying for appointment as a either an Administrative Judge or Administrative Law Judge shall agree to abide by the following Code of Conduct while their application is pending. Applicants shall not call, email or write letters and shall not cause or encourage other persons to call, email or write letters to any Panel member (including the Panel member's family members, law partners or business associates) in support of their application. Applicants who have been invited to an interview with the Panel are permitted to invite up to 5 persons with actual knowledge of their abilities to write letters to the Senior Judge in support of their application. Panel members properly may entertain telephone calls that provide material information regarding the fitness of any applicant for DIA judicial office that the caller is reluctant to put in written form out of concern for safety, retaliation, retribution or other legitimate motive. It is appropriate for persons to return calls, emails or letters initiated by a Panel member. No person applying for appointment as an Administrative Judge or Administrative Law Judge shall make any political contribution to the Governor, Lieutenant Governor or Executive Council at any time while the application is pending.

2.4 Code of Conduct for Nominees for DIA Judicial Office: After an applicant has been informed that he or she will be nominated by the Governor to a DIA judicial office and while the nomination is pending, the nominee shall not make any political contribution to any person holding or seeking county, state or federal elected office. Except as necessary to seek leave to withdraw from representation, a continuance or to avoid prejudice to a client's interests, or as a judge may otherwise order, no nominee shall appear as counsel in the Division of Dispute Resolution of the DIA. In the event of appearance, the nominee shall disclose the pendency of the nomination and give opposing counselor pro se parties an opportunity to object. Failure to materially comply with this Code of Conduct may result in the nomination being withdrawn prior to receipt of advice and consent by the Executive Council.

3.0 Notice and Posting of DIA Judicial Vacancies: The Senior Judge shall cause to be posted on the DIA website all judicial term expirations and vacancies, identifying the name of the incumbent judicial officer holding or most recently holding said term, together with the date of term expiration.

4.0 Form of Application: The form of application for the position of Administrative Judge and Administrative Law Judge shall be available for downloading from the DIA web site and shall be similar to that attached as Appendix A, as may from time to time be amended by the DIA. Such applications do not constitute public records. The Senior Judge shall prepare and periodically revise instructions for applicants to assist in the application process and for ease of use by applicants. The resume of any applicant nominated for DIA judicial office and any reappointment performance evaluation prepared by the Senior Judge for judges seeking reappointment may be reviewed by the Workers' Compensation Advisory Council, pursuant to its statutory obligation to rate nominees, and the Executive Council, pursuant to its constitutional duties, while the applicant's nomination is pending.

5.0 Application Process: Each applicant shall be responsible applying to the DIA, c/o the Senior Judge's Office, at the address and in compliance with the instructions specified in the DIA's website. The Senior Judge is responsible for reviewing all applications for conformity with the qualifications for DIA judicial positions and compliance with this Order. All applications shall be acknowledged in writing. Applications by persons failing to meet minimum qualifications shall be returned to the applicant with an explanatory letter and invitation to reapply after minimum qualifications have been satisfied. Applications in conformity with the qualifications specified in this Order shall be distributed by the Senior Judge to the Panel members.

5.1 Interview: Panel members shall review all applications to determine who, based on qualifications, will be invited to appear before the Panel for an interview. An applicant must receive at least six votes to be invited for an interview. All votes shall proceed as described in Section 6.0; et seq., below. After the Panel has acted on an application, the Senior Judge shall disclose a list to each Panel member of the names of applicants accepted for interview and not accepted for interview. Thereafter, on motion of any Panel member within 14 days and supported by affirmative vote of at least nine Panel members, applicants not invited for interview may then be invited for interview. Applicants may be invited for additional interviews in the discretion of the Panel.

5.2 Deliberations: After consideration of information and evidence regarding applicants, Panel members shall deliberate and discuss the relative strengths and weaknesses of applicants and may consider the particular needs of the DIA in determining relevant strengths and weaknesses of applicants. All information raised in deliberations is strictly confidential and shall not be revealed outside the Panel membership. Using the voting procedure described in 6.0, et seq. below, an applicant shall receive seven affirmative votes from Panel members to be forwarded to the Governor's Office to be considered for nomination, provided that the Panel shall send no fewer than three and no more than six names of applicants to the Governor for each vacant or expired judicial term of office, unless the minimum or maximum number of nominees on a particular slate is waived by the Governor's Chief Legal Counsel.

5.3 Form of Notice to Governor for Nomination: All applicants recommended to the Governor for nomination shall be listed alphabetically by last name with no ranking or indication of preference or vote totals by the Panel, other than to indicate the actual or expired judicial term of office for which the applicant is being suggested, and to indicate whether the applicant is seeking reappointment.

6.0 Method of Voting: This section shall govern all voting conducted by the Panel with respect to any decision made by an applicant for judicial office. All other voting, such as motions to approve minutes or motions for recess or to adjourn, may be made by any other method announced by the Chair. The Panel may not waive these provisions regarding applicant-related voting procedure, except the Chair may exercise discretion to call for voice votes or show of hands on decisions whether to grant an interview.

6.1 Ballot Form: All ballot forms shall be provided to the Panel members in form provided by DIA staff. Each ballot shall include the name of one Panel member on a preprinted format, with each Panel member provided ballots in sufficient supply for use at the meetings. The ballot shall include at least 10 lines on which each Panel member may list their choices when called upon to vote. Each ballot shall include a signature line and the following certification: "By signing this ballot, I hereby swear under the penalties of perjury that I have complied with the Code of Conduct for Industrial Accident Nominating Panel members described in Section 1.5 of Executive Order [Insert Number for this order]. I further certify that the foregoing votes represent my own recommendations as a matter of conscience and judgment to the best of my ability." The name of the Panel member submitting a ballot shall not be announced or made available for review by other Panel members except the Chair, the Senior Judge and Governor's Chief Legal Counsel; the name of Panel members on each ballot shall be maintained for internal use only to assure the integrity of the voting process.

6.2 Absentee Ballots: Any Panel member who the Chair determines is unable for good cause to be present in person to cast his or her votes may vote by absentee ballot, addressing all candidates listed, by giving or faxing or mailing his or her completed and signed ballot form to the Chair in advance of the vote.

6.3 Proxy Votes: Proxy votes are prohibited. However, the Chair may accept the votes made by a designee of a Panel member.

6.4 Voting for Interview: Voting to determine which applicants will be invited for interview consists of listing of all applicants under consideration whom the Panel member wishes to interview. Votes shall be written on the ballot form, signed by the Panel member, and given to the Chair. The Chair will announce the method of voting at the outset of any meetings held for such purpose, and will list the names of each applicant on the ballot form, which shall be recorded by the Senior Judge. The Chair shall not announce the name of the Panel member casting any particular vote. There is no minimum or maximum number of applicants from those pending who can be listed on the ballot form for invitation for interview. Any applicant who receives the votes of six Panel members (or nine in the event of reconsideration) shall be invited for interview before the Panel.

6.5 Voting for Recommendation for Nomination: Voting for recommendation for nomination shall proceed in the same manner as voting for interview, except that no applicant shall be recommended to the Governor for nomination without receiving a majority of the affirmative votes of the members of the Panel present at the meeting. The Panel shall not act at any meeting unless a quorum of seven members is present. Panel members who have reviewed the qualifications and obtained all relevant information concerning an applicant may vote by absentee ballot, provided votes are recorded for all candidates listed on the ballot and said ballot is given to the Chair and signed by the Panel member at any time before the Panel vote is conducted.

6.6 Fewer Than Three Finalists: In the event fewer than three applicants are selected for recommendation for nomination, the Panel shall not transmit the names of said applicants to the Governor's Office until supplemented by additional names totaling three to six applicants recommended for nomination to a particular vacancy or expired judicial term. The Governor's Chief Legal Counsel may waive the requirement of a minimum of three and a maximum of six applicants per vacancy.

6.7 Ordinal Ranking Over Six Finalists: In the event more than six applicants receive seven votes for a particular vacancy or expired judicial term, the Chair shall call for an ordinal vote using the ballot form, in which each Panel member lists the names of each such finalist in order of relative ranked priority, with 1 being the best qualified applicant and higher numbers being relatively less qualified applicants. The Chair shall then add the ordinal ranking scores received by each applicant and the six applicants with the lowest total score shall be recommended for nomination. In the event of a tie for the sixth ranked position, the Panel must decide by further ordinal ranking ballots so that the total number of applicants recommended for nomination does not exceed six persons.

6.8 Number of Votes Permitted: Each vacancy or expired judicial term shall be separately considered for voting. The Chair shall announce the voting results after each round of ballots has been cast before moving to the next round of voting. Panel members may list the same applicant on ballots for the position of Administrative Judge or Administrative Law Judge. For each vacancy or expired judicial term being voted upon, each Panel member may list from zero to six names of applicants whom he or she recommends to the Governor for nomination to that position.

7.0 Transmission to Governor's Office: The list of persons recommended for nomination for each vacancy or expired judicial term shall be transmitted by the Chair to the Governor's Chief Legal Counsel for review, interview or due diligence as the Chief Legal Counsel may undertake. After review of the applicants recommended for nomination, the Governor may decline to nominate any applicant and seek further recommendations from the Panel.

7.1 Workers' Compensation Advisory Council: The list of persons recommended for nomination for each vacancy or expired judicial term shall also be transmitted by the Chair to the Workers' Compensation Advisory Council pursuant to M.G.L. c. 23E, section 9 in alphabetical order, referencing whether the person has been nominated for the position of Administrative Judge, Administrative Law Judge, or both, and whether the person has been nominated for reappointment or recall. Said Council, after going into executive session, may rate the candidate as highly qualified, qualified or unqualified, and such rating shall be transmitted to the Governor's Chief Legal Counsel within one week. Failure of the Council to make a rating within one week from the time the name was transmitted shall be deemed to be a "qualified" rating unless the Council seeks leave from the Chief Legal Counsel in advance of that time for additional time for review for good cause.

7.2 Office of Special Investigations: The Chief Legal Counsel may request the assistance of the State Police Special Investigations Unit to undertake further background and due diligence investigation of any person recommended for nomination and may require the applicant to provide releases or further documentation in support of such investigations.

7.3 Pendency of Recommendation: Any applicant recommended by the Panel for nomination may be considered for nomination by the Governor for any DIA judicial office for two years after the date of the recommendation, subject to such updated due diligence as the Governor's Chief Legal Counsel may require. At any time during this two-year period, an applicant may formally withdraw his or her application by sending a letter to the Senior Judge and the Governor's Chief Legal Counsel informing them of the decision to withdraw. Any applicant who remains in the nomination pool must abide by the provisions of Section 2.3 until his eligibility for nomination has expired, unless such applicant elects to withdraw his application. Applicants within the nomination pool prior to date of this Order will be required to submit an updated application. Such applicants are not required to be recommended by the Panel again and are available for nomination by the Governor. Notwithstanding the above, applicants within the nomination pool retain the right to withdraw from the nomination pool and undergo the same process as new candidates.

8.0 Publication on Website and Public Distribution: This Executive Order and the Appendix shall be posted on the DIA website and shall be available to the public at no charge.

9.0 Effect of Order: This Executive Order shall continue in effect until amended, superseded, or revoked by subsequent Executive Order.

Given at the Executive Chamber in Boston this 18th day of December in the year of our Lord two thousand three, and of the Independence of the United States of America two hundred and twenty seven.

MITT ROMNEY, GOVERNOR
Commonwealth of Massachusetts

SECRETARY OF THE COMMONWEALTH
WILLIAM FRANCIS GALVIN

For purposes of this Executive Order, all references to governmental agencies shall include successors thereto.

References in this Executive Order to the male gender shall include the female gender and references to the female gender shall include the male gender.

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