November 09, 2007
South Carolina Governor Attempts to Interfere with Workers’ Compensation Commission
South Carolina Governor Marshall (Mark) Sanford has attempted to exert his will upon the South Carolina Workers’ Compensation Commission. Basically, he is trying to tell an arm of the judicial branch how to do its job, ignoring the mandates established by the legislative branch when it established the Commission. The following is an article written by John P. Freeman, who is the John T. Campbell professor of business and professional ethics at the University of South Carolina School of Law, which provides excellent insight and analysis to this situation:
We all studied civics in school. We learned about such things as how there are three separate branches of government: the legislature, the executive and the judiciary. Remember the lesson? We were taught that the legislature writes the laws, the executive branch enforces the laws and the judiciary interprets the laws. This separation of powers was designed to protect citizens from excessive power being wielded by any single branch.
Unfortunately, it appears Gov. Mark Sanford cut class the day the foregoing civics lesson was taught.
His lack of education about separation of powers (or his deliberate disregard for the concept) was shown on Sept. 20 when he promulgated an executive order that directed commissioners on the Workers Compensation Commission to change how they decide cases. He commanded them to strictly use “objective standards” in rendering awards.
His aim was to reduce awards for injured workers, thereby saving money for his political base, namely the business community and insurance companies. What Gov. Sanford sought to orchestrate was a wealth transfer: Workers take less, his political base pays less.
Make no mistake about it. Gov. Sanford, the executive branch’s leader, intended to change the law by manipulation of judges he assumed he could control. We know this because when he signed the order at his press conference, comments made by him and his invited guests, business lobbyists, were captured on videotape. On that tape we find Gov. Sanford billing his “objective standards” approach as adding to the workers compensation law something “that was lacking.” Business lobbyists present at the press conference praised Gov. Sanford for “today… implementing objective standards into the workers compensation system for the first time.”
This new requirement pleased the business lobbyists since the Legislature, the government branch actually empowered to write laws, had refused to enact objective standards in the last legislative session.
To enforce his command that workers comp awards be reduced, Gov. Sanford’s order demanded that each commissioner report to the governor quarterly about adherence to the order’s award-cutting command. Implicit in the reporting requirement was the suggestion that failure to follow directions exposed a recalcitrant commissioner to punishment, either removal or the governor’s failure to reappoint.
One of the lobbyists at the order-signing press conference explained that the governor’s right to pressure workers compensation commissioners to change the law was rooted in a “pretty simple concept.” The commissioners, he explained, “are not judges…. They are part of the executive branch. (Gov. Sanford) is the leader of the executive branch.” Another lobbyist later chimed in that “Even making a decision on whether or not to follow the governor’s executive order is improper because the commissioners are not judges.”
What smug business lobbyists and Gov. Sanford have now learned is that a Workers Compensation commissioner is not a puppet on a string. Each actually is a judge from an ethical standpoint, having been placed under the Canons of Judicial Ethics by the Legislature in 2005. Those ethical precepts demand that commissioners must act 24/7 with impartiality and integrity. They are ethically commanded to be faithful to the law and to disregard outsiders who seek to steer their decision-making.
The commissioners’ high ethical standards prevent them from dispensing favors to special interest groups, even when the governor who appointed them orders them to do so.
Political conservatives decry judicial activism, and Gov. Sanford presents himself as a conservative. But his aim in signing this executive order was anything but conservative. It was judicial activism personified. Gov. Sanford sought to manipulate judges in order to change the law to favor the business community, his political base. In their order flatly rejecting Gov. Sanford’s command, the Workers Compensation commissioners offered the governor a make-up assignment for that civics lesson he seems to have missed years ago. They also provided an example of professional integrity he would do well to emulate.
The rest of us can learn lessons from this episode as well. For one thing, we need to remember that those who seek to manipulate judicial decision-making are not working to serve the common good. Their intent is to benefit themselves, the special interest groups. The Workers Compensation commissioners’ steadfastness proves we have public servants with backbones and 20/20 vision.
Mr. Freeman is the John T. Campbell professor of business and professional ethics at the USC School of Law.
Source: "The Governor’s Interference" by Prof. John P. Freeman, published at The State newspaper.
