Adjudicative Ethics – Dilemmas of Tribunal Members

1. Ethics in Administrative Justice Adjudicative Ethics – Dilemmas of Tribunal Members

2. Problem 1: Independence A proposal comes forward from “Citizens for Accountability in Government” (CRAG) for every tribunal hearing room to be outfitted with a webcam so anyone could go on-line and listen in to every hearing that is not closed. The provincial Government, which itself is vulnerable on transparency issues after a headline-grabbing scandal involving ministerial expense accounts, quickly agrees on the grounds this will enhance ethical conduct and oversight.

3. Problem 1: Independence • Discussion Questions: • Should Tribunal Chairs and members accept this policy? • Would they have any choice? • If the Tribunal Chair requested that all hearings be live-streamed through the internet, what could a member do if he/she did not wish to do this?

4. Problem 2: Conflicts of Interest A well-known pension expert, just retired from a large fund, is appointed as a part-time member to a provincial pension tribunal, and is also an adjunct professor at the local University. Her spouse is a lobbyist. She is asked to deliver a keynote address at a fundraising dinner for a private think tank that her spouse’s firm is sponsoring. Her talk, for which she is introduced only with her University affiliation, calls for major reform to the pension system.

5. Problem 2: Conflicts of Interest Discussion Question: What are the ethical consequences, if any, from this scenario, and how ought they to be addressed?

6. Problem 3: Active Adjudication An appellant challenging a denial of disability benefits before a federal tribunal suffers from a variety of psychiatric conditions. The issue in the appeal turns on whether she is disabled within the meaning of the applicable legislation. She is self-represented. During the hearing, counsel for the Ministry asks a question relating to the documentation of her medical treatment. She begins fidgeting and appears agitated. The presiding tribunal member asks “is there anything we can do to make this less difficult for you.” The appellant looks up and states “I’ll answer questions from you. I trust you. But not him.” pointing at counsel for the Ministry.

7. Problem 3: Active Adjudication • Discussion Question: • What should the presiding member do?

8. Problem 4: Process A full-time member of a Board is nearing the end of a 3 year term. The member is well-respected for his expertise and decision-writing, but is known to ask pointed questions to counsel. The Chair has received two complaints from clinic lawyers who were offended at what they believed was the member’s rude conduct, one of whom also believed his client was treated unfairly based of his race. These complaints were received 4 months ago and investigated. The Chair received a report indicating the complaints are baseless but that the member is widely perceived to “cross the line” based on comments made during other hearings. The Government has asked the Chair for her “merit-based opinion” as to whether the member should be reappointed.

9. Problem 4: Process • Discussion Question: • What should the Chair do?