Suit over judges’ pay accuses city of contract breach

Because of a change in the law, the judges became state employees on Jan. 1, 2017. City Attorney Tom Carpenter, citing state law, maintains that the judges were never city employees and not entitled to city pay for accrued time off.

An attorney representing three Little Rock district judges who are seeking vacation and sick-leave payouts has filed a counterclaim in a lawsuit with the city.

The breach-of-contract counterclaim is another way to approach the case that lets the judges keep all legal options open and that aligns it with a past state Court of Appeals case, Heartsill Ragon said.

The city brought the matter to court in January to seek a written opinion from a judge. The dispute dates to 2016.

Because of a change in the law, the judges became state employees on Jan. 1, 2017. City Attorney Tom Carpenter, citing state law, maintains that the judges were never city employees and not entitled to city pay for accrued time off. Ragon holds that the judges were always treated as city employees.

The three judges are Vic Fleming in traffic court, Mark Leverett in environmental court and Alice Lightle, the criminal-court judge who retired in April 2017.

The city has until March 4 to answer the counterclaim with either a dismissal or a response. Carpenter said Thursday he had hoped to have already received an opinion from a judge.

Two Pulaski County circuit judges, Mary McGowan and Alice Gray, have recused themselves from the case, which is now before Circuit Judge Wendell Griffen.

The counterclaim presents evidence including pay stubs from the city that show how much sick leave and paid time off the judges had accrued.

“We think this is a really simple issue,” Ragon said. “We don’t really know why there is a disconnect with regard to their employment status. We have pay stubs.”

The counterclaim refers to Fayetteville v. Bibb, a 1989 Arkansas Court of Appeals case, which used the fact that a city employee’s superiors had directed her to keep records of her compensatory time as evidence that a contract existed between a city and an employee. Carpenter said that no other judges in the state receive pay for unused vacation days and sick leave, and that past payouts to Little Rock judges were improper.

He added that district judges are elected officials and not city employees, because the city doesn’t have the authority to hire or fire them.

The city decided Tuesday that former Mayor Mark Stodola would receive a $160,000 payout for his unused sick and vacation days, but Stodola’s ability to accrue pay for unused time off comes from an ordinance stating that his benefits must be comparable to those of the highest-ranking municipal official.

City Manager Bruce Moore’s contract allows for the accrual of all unused time off to be paid at severance.

The payments the city would have to make to the judges total more than $78,000, according to the January court filing.