Could the City of Little Rock pay accrued vacation and sick-leave time to district-court judges who became state district judges on January 1, 2017?

Plain-English summary

Senator Will Bond asked the AG three related questions about district-court judges in Arkansas after the state-district-court reorganization required by Amendment 80 took full effect on January 1, 2017. The questions were practical: when Little Rock's "local" district judges became "state" district judges that day, could the City pay them accrued vacation and sick-leave time?

The AG's answers depended on a single underlying question: were these judges city employees before the change? If yes, normal city-employee benefit rules apply, including any lump-sum payouts at separation under Ark. Code Ann. § 14-42-120(b)(2). If no, the city has no obligation (and probably no authority) to pay benefits.

Question 1: Could a city extend vacation and sick leave to a local district judge serving only that city?
Yes, if the judge is a city employee. The AG cited Ark. Code Ann. § 14-42-120(b)(2) (allowing lump-sum payments to terminating employees) and §§ 14-43-601, 14-14-805 (authorizing city/county legislation on hours and benefits). But whether the judge is a city employee is fact-intensive. Arkansas courts use a multi-factor test rooted in ConAgra Foods, Inc. v. Draper, 372 Ark. 361 (2008), and Riddell Flying Service v. Callahan, 90 Ark. App. 388 (2005), focused on the right to control the worker. Salary funding alone is not conclusive (Carter v. Cash, 312 Ark. 41 (1993); Op. Att'y Gen. 2001-202).

Question 2: Could a city pay accrued balances upon a judge's reorganization to state employment?
Same answer. The judge's compliance with the city's personnel manual is relevant but not determinative. The threshold question is whether the judge was a city employee at all.

Question 3: What is the employment status of state district-court judges?
The AG declined to give a uniform answer. State district-court judges differ across districts. Some serve countywide jurisdictions; some serve a specific city. Some have base salaries paid entirely by a city; some are partly funded by the county and the city. They are elected by different electorates depending on the district. The AG said: "It is impossible in light of these provisions to state definitively that a district court judge is either a municipal officer or a county officer" (citing Op. Att'y Gen. 2010-154).

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Amendment 80 and the district-court system. Adopted in 2000, Amendment 80 restructured Arkansas's judiciary and created "District Courts" to assume, on January 1, 2005, the jurisdiction previously exercised by Municipal, Corporation, Police, Justice of the Peace, Common Pleas, and City Courts. Amendment 80 contemplated a state-funded system, replacing the patchwork of city- and county-funded courts.

The 2011 reorganization. Act 1219 of 2011 created "an Act to Create State District Courts," providing for a state-funded district-court system operational by January 1, 2017, with limited exceptions. Until reorganization, a district judge remained a "local" judge, an "employee of the cities or counties, or both, that he or she serves" under Ark. Code Ann. § 16-17-1107.

Salary structure. State district judges generally have salaries paid by the state (§ 16-17-1102(6)). But local district judges' compensation comes from various combinations of city and county funds:

• Some state district judges have a "base annual salary paid by a city" (Acts 2017, No. 723, § 3, amending § 16-17-1110(24)(C)(i)).
• Others draw salaries from "[e]ach county and town or city in ... an amount equal to its proportionate share of one-half (½) of the base salary established by law" (§ 16-17-1106(b)(1)(A)).
• Local district courts in counties with populations of 250,000 or more have "salaries and operational expenses ... paid by the city or town in which the court is located" (§ 16-17-119(a)(1)).

City benefit authority. Cities have broad authority to set vacation and sick-leave policies for their employees:

• Section 14-42-120(b)(2) authorizes "[p]ayment of a lump sum to a terminating employee, to include lump-sum payments of sick leave balances upon retirement."
• Section 14-43-601(a)(1)(G) lets cities legislate on "hours and vacations, holidays, and other fringe benefits of employees" (subject to state law).
• Section 14-14-805(2) gives counties similar authority.

But these statutes apply only to people who are employees of the city. The threshold question is who counts.

The AG's reasoning

The control test for employee status. Drawing from ConAgra Foods, Inc. v. Draper, 372 Ark. 361 (2008), the AG identified the core test: "It is the right to control, not the actual control, that determines the relationship." Factors include payment of a fixed amount (vs. payment by the job), provision of space and tools, work as an integral part of the employer's business, and continuity of the relationship.

In the public sector, salary payment can be enough to establish an employment relationship (Op. Att'y Gen. 2016-125, where Poinsett County's payment of library employees made them county employees for APERS purposes). But salary funding alone is not conclusive; it is one factor in the broader control analysis (Carter v. Cash; Op. Att'y Gen. 2001-202).

Why "local district judge serving only the city" is the easier case. When a judge serves only one city, sits in a courtroom the city provides, follows local procedures, and is paid by the city, much of the control framework points toward city employment. The AG concluded that yes, such a judge "could in theory be entitled to the same vacation and sick-leave benefits afforded city employees." The qualifier "in theory" is doing real work in the AG's framing.

Section 16-17-1107 alone is not enough. Bond's question framed the issue as whether § 16-17-1107 authorized payment. The AG read that section as referring to local judges as "employees of the cities or counties, or both," but said it "does not provide a definitive answer" to whether a particular judge is a city employee for benefits purposes. Other factors and a fact-intensive examination are required.

Why the AG could not give a categorical answer to Question 3. State district-court judges, as a group, are not uniformly any one thing. The 2017 reorganization created different funding and election structures across districts. Some judges receive state salaries entirely; some receive a city-paid base salary on top. Some are elected districtwide (e.g., the Thirty-First District comprising Pulaski County, under Acts 2017, No. 723, § 3). Some are elected only by city or town electors (e.g., Arkansas County under § 16-17-904(b)). These differences matter for any uniform employment-status determination.

The AG cited Op. Att'y Gen. 2010-154 for the proposition that whether a district judge is a municipal officer or a county officer cannot be answered definitively in the abstract.

The fact-intensive caveat. The AG repeatedly emphasized that employer-employee relationships are factual matters: "[D]etermining whether a person is an employee ... must be based on the particular facts of each case" (Webb v. Hot Springs Packing Co., 2013 Ark. App. 526). The AG's office is not a fact-finder.

Common questions

What was Act 1219 of 2011?
The legislative vehicle that created a state-funded district-court system in Arkansas. It directed Amendment 80 implementation, including the January 1, 2017, deadline for full reorganization (subject to limited exceptions).

Why does this matter to former local district judges?
Because a judge who accrued years of vacation and sick leave under city policies may have a sizable balance due upon transition to state employment. The total payout could be tens of thousands of dollars per judge depending on tenure and accrual rates. If the judge was a city employee before reorganization, those balances should be paid out under § 14-42-120(b)(2). If not, no payout is owed.

What about the judges' new state benefits?
State district judges accrue benefits under state policy from the date they assume the state position. The question in this opinion is about pre-reorganization balances, not future accrual.

Can a city avoid the question by simply not paying?
Practically, that creates litigation risk. A judge who was a city employee under Arkansas law has a contract right to accrued benefits subject to applicable manuals and statutes. Refusing to pay could trigger a wage claim or contract suit.

Does this opinion answer whether a particular judge is a city employee?
No. The AG explicitly declined to perform the factual review. The opinion is a framework. The actual determination has to be made at the local level, ideally with city counsel, considering the particular judge's working relationship with the city.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2017-046
August 9, 2017

The Honorable Will Bond
State Senator
711 West 3rd Street
Little Rock, AR 72201

Dear Senator Bond:

This is in response to your request for an opinion concerning vacation and sick-leave benefits for district-court judges with citywide jurisdiction. You also ask about the employment status of district judges who serve now as state district-court judges following reorganization under Act 1219 of 2011.

By way of background, you state that since the adoption of Amendment 80 to the Arkansas Constitution, the General Assembly has incrementally replaced local district-court judgeships with full-time, state-funded judgeships. You state that Act 1219 of 2011 provided for a state-funded district-court system that would be operational by January 1, 2017, with limited exceptions. And you posit that until a district court is reorganized as a state-funded judgeship, the district judge remains "local," i.e. an "employee of the cit[y] or count[y], or both, that he or she serves."

In light of this background, you explain that "when Little Rock's district judges became state district judges on January 1, 2017 ... , there developed some concern about whether the city could legally pay the district court judges unused vacation and sick-leave time."

Your questions, which I have slightly paraphrased, are as follows:

1) Under Ark. Code Ann. § 16-17-1107, could a city legally extend to a local district judge who serves only that city the same vacation and sick-leave benefits that are extended to other city employees?

2) If a city personnel manual provides that city employees will receive payment of all accrued and unused sick-leave and vacation balances upon termination of employment, is the city authorized under Ark. Code Ann. § 16-17-1107 to pay such balances to a local district judge who has abided by the policies in the manual, and whose judgeship has been reorganized to a state-funded judgeship?

3) What is the employment status of state district-court judges who were formerly local district judges — are they state employees, city employees, county employees, or a hybrid combination?

RESPONSE

Your first two questions turn on whether the district judges at issue — those with citywide jurisdiction whose judgeships are now full-time and state-funded — were city employees prior to reorganization under Act 1219 of 2011. In answer to the first question, I believe a "local" district judge could in theory be entitled to the same vacation and sick-leave benefits afforded city employees. But the judge would have to be a city employee in order to claim these benefits. With respect to your second question, I believe a city could issue a local judge payment for unused vacation and sick leave, if indeed the judge was a city employee prior to assuming a state-funded judgeship. My office is unable, however, to evaluate the fact-sensitive elements of the employer-employee relationship in response to an opinion request. Likewise, I cannot offer a definitive opinion as to your third question. The answer will likely vary based on factors including, but not limited to, where a district court is located, how expansive its jurisdiction is, and which electors vote on the judgeship.

DISCUSSION

Question 1: Under Ark. Code Ann. § 16-17-1107, could a city legally extend to a local district judge who serves only that city the same vacation and sick-leave benefits that are extended to other city employees?

I believe the answer is "yes," if in fact the local district judge is an employee of the city. It may well be appropriate to count a district judge who "serves only that city" as a city employee. The employer-employee relationship is often a question of fact, however. Thus, I do not believe that authority for a city to offer district judges payment for vacation and sick-leave benefits lies solely with Ark. Code Ann. § 16-17-1107 ("Salary of judges serving city or county.").

Before addressing whether the district judge described in your first question might be entitled to vacation and sick-leave payments, a brief overview of the district-court system under Amendment 80 to the Arkansas Constitution will be useful. Prior to Amendment 80, various limited-jurisdiction courts operated within towns, cities, and counties throughout the state: "Municipal Courts, Corporation Courts, Police Courts, Justice of the Peace Courts, ... Courts of Common Pleas ... and ... City Courts...." Adopted in 2000, Amendment 80 "re-structured the judiciary in Arkansas and created 'District Courts' to assume, on January 1, 2005, the jurisdiction previously exercised" by the limited-jurisdiction courts in existence. Among other things, Amendment 80 district courts are part of a "state-funded system," as opposed to courts operating as "part-time district and city courts funded by city and county governments."

Your first question concerns vacation and sick-leave benefits that might be owed to a "local district judge," by which you mean a district-court judge who has not become a "state district court judge" under Amendment 80. You further specify that the local district judge "serves only the city." I take this to mean that the judge's jurisdiction is limited to the city where his or her court is located, and not inclusive of the surrounding county. And you reference vacation and sick-leave benefits currently afforded to "other city employees." In sum, you appear to be asking if a district judge with citywide jurisdiction (whose judgeship has not been reorganized as a state judgeship) could qualify as a city employee for purposes of vacation and sick-leave benefits.

I believe the answer is "yes," so long as the working relationship between the local judge and the city confirms that the judge is a city employee. While cities "have only the power bestowed upon them by statute or by the Arkansas Constitution," the Arkansas Code specifically authorizes "[p]ayment of a lump sum to a terminating employee, to include lump-sum payments of sick leave balances upon retirement." Thus, a city may remit unused vacation and sick-leave benefits to an outgoing employee as a lump-sum payment. And if offering these benefits to current employees does not "conflict with state law," a city may enact local legislation covering "[h]ours and vacations, holidays, and other fringe benefits of employees." I am unaware of any state law that would prevent a city from offering vacation and sick-leave benefits to the local district judge described in your first question.

But whether that judge is an employee of the city at all is a fact-intensive matter, dependent on day-to-day circumstances as well as applicable statutes. The Arkansas Supreme Court has long recognized that a putative employer's ability to control a worker is the most important element of the employer-employee relationship. Control may exist if the putative employer pays the worker a fixed amount, as opposed to paying by the job; if it furnishes the space and whatever tools or staff may be necessary for the work; if the work is an integral part of the putative employer's regular business; and if the putative employee has done the same work for a relatively long period of time. In the public sector, payment of the worker's salary may be enough to establish an employment relationship, although this too is a factor that must be evaluated in the overarching framework of control.

Due to the lack of information about the local judge's working conditions (other than the proviso that he or she serves only the city), I cannot offer a definitive opinion as to whether the judge would be entitled to the vacation and sick-leave benefits owed to city employees. I would note, however, that local district courts in counties with populations of 250,000 or more have "salaries and operational expenses ... paid by the city or town in which the court is located." The fact that a given city or town is responsible for a district judge's salary would likely be relevant in assessing the judge's employment status. And the statute cited in your request, Ark. Code Ann. § 16-17-1107, provides that until district judges join the state system, they will "continue" as "employees of the cities or counties, or both, that he or she serves...." This seems to imply that employment for local judges is coextensive with jurisdiction, i.e., city, county, or a combination. But there is not a statute expressly stating that local judges serving only a city are employees of that city for purposes of vacation and sick leave benefits. Thus, only an examination of a particular judge's circumstances could yield an answer to your first question. My office is not equipped or authorized to conduct such an inquiry in response to an opinion request.

Question 2: If a city personnel manual provides that city employees will receive payment of all accrued and unused sick-leave and vacation balances upon termination of employment, is the city authorized under Ark. Code Ann. § 16-17-1107 to pay such balances to a local district judge who has abided by the policies in the manual, and whose judgeship has been reorganized to a state-funded judgeship?

For the reasons discussed above, I do not think that any one statute authorizes a city to pay unused vacation and sick-leave balances to a local district judge upon reorganization of his or her court to a state-funded judgeship. Nor would the outgoing judge's compliance with a city's vacation and sick-leave policies be determinative. To be sure, a personnel manual (its contents and its application in practice) could be relevant in deciding as a general matter which city employees qualify for payment of unused vacation and sick leave. And as to local judges specifically, Ark. Code Ann. § 16-17-1107 is instructive because it refers to those judges (if indirectly) as "employees of the cities or counties, or both," that they serve. But the primary issue remains: for purposes of vacation and sick-leave benefits, were the local judges employees of the city prior to reorganization? In my opinion, section 16-17-1107 does not provide a definitive answer. Instead, a case-by-case examination of the circumstances surrounding a particular judge would be required.

Question 3: What is the employment status of state district-court judges who were formerly local district judges — are they state employees, city employees, county employees, or a hybrid combination?

Because it centers on whether or not an employment relationship exists, your third question would require evaluation of each state district-court judge's day-to-day working environment. I cannot delve into such a fact-intensive inquiry in an opinion response. Moreover, an overview of Amendment 80's implementing legislation confirms that an answer governing all state district-court judges is unworkable, given the potentially meaningful differences between district courts in the state system. For example, Ark. Code Ann. § 16-17-901 et seq. ("Judicial Districts and Number of Judges") establishes some district courts that serve an entire county, and some, located in more populous areas, that are assigned to certain cities. Some district-court judges have a "base annual salary paid by a city." Others receive salaries from funds contributed by "[e]ach county and town or city in ... an amount equal to its proportionate share of one-half (½) of the base salary established by law...." These disparities in salary funding alone are enough to call into question whether state district-court judges are, as a group, employees of a certain entity. But the judges are also distinguishable with respect to how they are elected — some by electors residing in a city or town and some by electors countywide. For all of these reasons, I am unable to offer an opinion in response to your third question.

(Footnote: See also Op. Att'y Gen. 2010-154 ("It is impossible in light of these provisions to state definitively that a district court judge is either a municipal officer or a county officer.").)

Sincerely,

LESLIE RUTLEDGE
Attorney General