Mo. workers' comp judges sue to prevent dismissals

Thursday, June 25, 2009

JEFFERSON CITY, Mo. -- Three workers' compensation law judges appointed by former Republican governor Matt Blunt sued Wednesday to prevent their dismissal by Democratic Gov. Jay Nixon's administration.

Among those suing to save his job is Henry Herschel, who as the former legal counsel for Blunt was a defendant in a wrongful termination lawsuit recently settled by the state for $500,000.

Nixon's administration has described the elimination of the judges' positions in the Department of Labor and Industrial Relations as a budget-cutting move. The judges decide workers' compensation claims.

But the lawsuit filed in Cole County Circuit Court contends cost-savings is not a legal justification for dismissing the judges. It says state law allows the judges to be removed before their terms have expired only upon the recommendation of an evaluation committee, and none of the judges has received bad marks.

The suit seeks an injunction preventing the dismissals from taking effect July 1, when Missouri's 2010 fiscal year begins.

The three are among five administrative law judges whose positions are being eliminated. One judge is retiring and another has not sued. The plaintiffs are Herschel and judges Matthew Murphy and John Tackes.

Murphy works in Cape Girardeau, Department of Labor and Industrial Relations communications director Amy Susan confirmed in an e-mail to the Southeast Missourian. Murphy's is the only local position the department is eliminating. Susan said Murphy has worked in Cape Girardeau since Dec. 4.

Susan provided a statement on the situation via e-mail: "These positions were eliminated by a budget that was passed by the General Assembly. The individuals were selected based on seniority with the most recently hired positions being terminated."

A listed telephone number for Murphy wasn't available.

The suit names as defendants Nixon; his chief of staff, John Watson; labor department director Lawrence Rebman; and workers' compensation division director Peter Lyskowski. It accuses them of unlawfully orchestrating the dismissals.

"We don't know yet whether politics played a role in the decision of which judges to fire or how many judges to fire," said John Comerford, a suburban St. Louis attorney representing the judges.

But "it is no secret that Henry Herschel, who was Governor Blunt's top lawyer before he became an administrative law judge, is the fourth judge from the bottom of the list in terms of seniority, and they happen to have involuntarily fired the four most junior judges. That is a strange coincidence," Comerford said.

Nixon spokesman Scott Holste said the elimination of the positions was approved as part of the 2010 budget passed by the Republican-led Legislature.

"During these tough economic times, Missouri government has had to take significant steps to reduce spending, just as many Missouri families have had to do," Holste said.

The lawsuit contends there is no budget crisis facing workers' compensation judges. It says they are funded through a dedicated tax on workers' compensation insurers, not general state tax revenue.

Herschel was replaced as Blunt's chief legal counsel and appointed as an administrative law judge in late 2007, shortly after Blunt legal aide Scott Eckersley went public with assertions that he was fired for raising concerns about e-mail deletions in the governor's office. Herschel was Eckersley's supervisor.

Eckersley subsequently sued Blunt, Herschel and three other member's of Blunt's administration for wrongful termination and defamation. Earlier this month, the state paid $500,000 to settle the lawsuit. The settlement included no admission of wrongdoing.

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