Little Rock district court judges, who will become state employees Jan. 1 under a new law, are in a disagreement with the city about whether they are entitled to compensation for accrued sick leave and vacation time.
At issue is whether the judges were ever really city employees.
City Attorney Tom Carpenter says, according to state law, no.
The three judges -- Alice Lightle in criminal court, Vic Fleming in traffic court and Mark Leverett in environmental court -- point to a different statute and say yes.
Little Rock's Human Resources Department notified the judges in October to be prepared for a lump sum payment of their paid-time-off accruals when the change to state employment happens.
When Carpenter noticed the line item in a 2016 budget amendment that went before the city's Board of Directors in November, he quickly wrote a memo to City Manager Bruce Moore, saying the judges weren't owed that money.
The amounts total almost $87,000.
"These are state judges and not city employees. While the city has statutory responsibility to pay salaries and to make payments to pension plans, there is no other authority over these judges," Carpenter wrote, explaining that the city doesn't keep track of whether a judge goes to work or takes several weeks of vacation at a time.
He cited Arkansas Code Annotated 16-17-108 that sets a salary range for judges but makes no mention of benefits.
"This office has consistently stated throughout my tenure, and I believe that of my predecessor, that judges are not city employees," Carpenter said.
But Fleming argued before the city board recently that the judges have been constantly referred to as employees by the city administration, were assigned employee numbers, received employee handbooks and were instructed to keep track of their hours, sick time and vacation time to turn in to the city Human Resources Department.
In response to Carpenter's Nov. 15 memo, Fleming and the other two judges wrote Nov. 17 that they disagreed with the city attorney.
Arkansas Code Annotated 16-17-1107 states that except for state district court judges, "a judge serving in another full-time or part-time local district court position shall continue to be an employee of the cities or counties, or both, that he or she serves."
That indicates that Little Rock district court judges have been city employees since the Little Rock municipal court was created in 1915, the judges wrote.
The judges also pointed out a different section of the law that says the cities are responsible for the "salaries and operational expenses" of the courts and argued that benefits are an operational expense.
Carpenter pointed out to board members that the city's definition of a regular full-time employee discusses employee discipline and termination.
"Because a district court judge cannot be disciplined or terminated by the city, then such a judge is not entitled to these special benefits the city voluntarily provides to its employees," Carpenter wrote in a second memo regarding the accruals.
"The only ways to remove a district judge from the bench, according to the Arkansas Constitution is through the Judicial Disability and Discipline Commission, or perhaps through impeachment," he wrote.
Carpenter also argued that the judgeships are part-time positions, and only full-time employees are eligible for benefits. While the judges said they work full time, Carpenter pointed to Leverett's practice of law on the side while being a sitting judge as evidence that the positions are part time.
If city directors went against Carpenter's opinion on the matter and compensated the judges for the paid-time-off accruals, a resident could sue the individual city directors to have the money paid back, Carpenter told them.
With the differing opinions on the matter, one way to resolve it would be to get a court ruling. That would take either the judges suing the city or the city suing the judges to ask for a declaratory judgment from the court. In that case, the two parties would agree on a set of facts and a question that they would ask a judge to resolve.
Mayor Mark Stodola cautioned against that at a recent board meeting.
"I personally don't want to see our city board be in a position based on policy of 20 years of paying this, of then suing our judges saying they are not entitled to it," Stodola said. "I would veto anything like that if that were the direction we would take. I think there's another way to resolve that."
City Director Erma Hendrix said she was in favor of paying the money to the judges.
City Director Doris Wright said she wants to follow the guidance of the city attorney.
If the money is paid, $48,002.19 would go to Fleming, $26,856.29 would go to Lightle and $11,920.76 would go to Leverett.
"We essentially have been told here in the 11th month of my 20th year [as a judge,] 'Sorry, we are not going to do it for you guys, but we did it with everybody else,'" Fleming said to the board. "If there's not going to be payment, then there may be no other recourse than to try to get some kind of ruling on it."
SundayMonday on 12/18/2016