LITTLE ROCK — State auditors on Friday questioned the Arkansas Supreme Court’s legal authority to create 15 positions funded with attorney license fees, to determine the compensation levels for employees hired to fill these positions and to create a retirement system for these employees.
The employees work for the state Supreme Court Office of Professional Conduct, the Office of Professional Programs, the Arkansas Lawyers’ Assistance Program and the Arkansas Access to Justice Commission.
These employees include Stark Ligon, whose salary as executive director as of the Office of Professional Programs is $140,452 a year, and Christopher Thomas, whose salary as director of the Office of Professional Programs is $123,268 a year, according to information provided by the court. Ligon’s and Thomas’ salaries exceed those of the governor, whose salary is $86,890 a year, and the attorney general, whose salary is $72,408 a year.
The Supreme Court is made up of a chief justice and six associate justices who serve eight-year terms.
After spending nearly two hours grilling officials for the court, who were reluctant to respond to the legal issues raised by the auditors, the Legislative Joint Auditing Committee decided to refer the matter to the Joint Budget Committee and Joint Public Retirement Committee in a move aimed at resolving it.
State Rep. Jim Nickels, D-Sherwood, said, “Maybe we need the chief justice [Jim Hannah] here to try to sort all of this out and find out what we need to do.”
State Sen. Robert Thompson, D-Paragould, said auditors have raised a separation of-powers issue in which “we are ... on very dangerous ground here.
“This is potentially an expensive question for the state of Arkansas,” said Thompson, an attorney.
“I would rather that the decision be made before there is a lawsuit by a clever attorney out there who represents a taxpayer who decides ... all this money you have been paying, you have been doing it illegally, and so you need to quit doing it and, by the way, you need to pay me a bunch of attorney’s fees because I am the one who got into court to settle it,” he said.
In a response dated Thursday to the audit of the court for fiscal 2011, Supreme Court Clerk Leslie Steen wrote that “... I note that the report includes a legal argument about the Arkansas Supreme Court’s authority to regulate the practice of law under Amendment 28 of the Arkansas Constitution.
“It is not appropriate for me to comment or offer advice on these legal issues,” wrote Steen, who is an attorney.
But Frank Arey, legal counsel for the Legislative Audit Division, said auditors “are not questioning in the least the Supreme Court’s authority to regulate the practice of the law.”
“Our question is whether under Article 16, Section 4 [of the Arkansas Constitution], which specifically gives to the General Assembly the ability to set the number and positions of employees in state government, what authority does the Supreme Court have to set these 15 positions,” he told the Legislative Joint Auditing Committee.
Arey said state auditors consider the license fees paid to the court by attorneys to be public funds, “so the issue is: Can you use public funds to create positions outside of the process that the General Assembly goes through.”
Committee Co-Chairman state Rep. Tim Summers, R-Bentonville, pressed Steen to explain under what law or legal authority the court hired these 15 employees.
In response, Steen said, “I think that is probably a question that I should not answer right now. I do not know how to answer that question.”
Summers said, “I think our issue is that everybody else that pays fees for licensing ... [has them] administered through the state, and the people are state employees whether they [have] cash funds or whatever.”
He asked Steen whether he wants to comment on whether Amendment 28 includes language that gives the Supreme Court authority to hire its own employees without the approval of the General Assembly.
Steen said, “No sir, I would not.”
At one point, Steen said, “I am not real comfortable being here,” adding that the last time that he appeared in front of the legislative auditing committee was in 1988.
Summers said J.D. Gingerich, director of the Administrative Office of the Courts, and Steen have positions with maximum salary levels established through laws enacted by the Legislature, so he wondered why these 15 other positions created by the court also weren’t established through laws enacted by the Legislature.
In response, Gingerich said, “I don’t have any comment about the legal or constitutional issues.
“There is not anything new about this and there is nothing that has changed as it relates to the operation of the programs and this part of the court’s responsibilities,” he said.
State Sen. Bill Sample, R-Hot Springs, who serves on the Legislature’s Joint Committee on Public Retirement and Social Security Programs, said he was surprised to learn about thistiny retirement system in an article in the Arkansas Democrat-Gazette in March. Earlier this year, key lawmakers and the director of state government’s two largest retirement systems told the newspaper they didn’t learn about the system until earlier this year.
Steen said the state Supreme Court created the retirement system, called the Bar of Arkansas Employees Pension Plan, in 2001, after there were three unsuccessful efforts to get this group of employees into the Arkansas Public Employees Retirement System during the 1990s.
But state Rep. Jim Nickels, D-Sherwood, said, “I cannot understand why one set of public employees who work for the Supreme Court cannot be in a state public retirement system, [while Gingerich and Steen] are in a state employee retirement system of some kind.
“It would be helpful if we can get a handle on the issues around the retirement program,” he said in asking legislative staff members to gather more detailed information about what happened during the 1990s.
Arkansas, Pages 9 on 10/13/2012