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Nazareth, Pa., United States

Tuesday, November 15, 2016

Baratta's Bullshit Burger

PJ Stephen Baratta
At the October 26 Budget hearing, and in the presence of the Court, I spoke about Northampton County's entitled law clerks. They are all overpaid. With a few exceptions, they are also underworked. Three of them have turned a one or two year apprenticeship into a career, complete with pensions. They have been paid $110,225 in divorce stipends since 2010, even though reviewing a divorce file is already part of their job description. Two of them are moonlighting, doing legal research for lawyers with active practices in Northampton County, creating an appearance of impropriety.

Since that time, the Courts have circled the wagons. President Judge Stephen Baratta [referred to from this point as Baratta] is paid $178,111 per year as the county's highest ranking judicial officer. He sent an insulting letter to County Council. He essentially told them that what the courts pay their staff is none of Council's business. They just pay the tab. If that means taxes must go up, too bad. If some little old lady in Walnutport has to starve to pay for a judicial law clerk, so be it.

When I read Baratta's bluster, I had to wonder whether he used a law clerk for the risible argument that Council has no say over the salaries of judicial staff. On its face, it's utterly stupid.

Think about it. If Council really has no role in what a judge pays his factotums, it's only a matter of time before a jurist packs his bench with worthless cronies drawing astronomical salaries. What's to prevent a judge from saying that he wants ten clerks, and that the County is going to pay each one of them $100,000 per year? What's to prevent a legal demigod from saying he wants a chauffeur? Or a chef? Does Baratta really expect Council to swallow this bullshit burger?  That, even more than its arrogance, is what makes his epistle so insulting. It assumes Council members are stupid.

Here's the law, stated succinctly in the 2016 edition of Standard Pa. Practice:
“The legislature has the power to regulate, within reasonable limits, the number and compensation of officers for the common pleas courts, such as court stenographers, criers, tipstaves and other court employees. If the legislature acts arbitrarily or capriciously and fails or neglects to provide a sufficient number of court employees or for the payment of adequate salaries, whereby the efficient administration of justice is impaired or destroyed, the court may file a mandamus action to supply the deficiency. However, the hiring, discharge and supervision of court personnel are the exclusive prerogative of the judges themselves; otherwise, the county commissioners are the managerial representatives of the judges and are empowered to represent the judiciary in all matters.”*
That's it. Not very complicated. You might even say it's a matter of common sense.

This tome is currently collecting dust in the law library. I suggest that Baratta read it. No one but he disputes that it is the Council's job to set salaries of judicial employees.

I just saw Council Solicitor Phil Lauer's written memo to Council on this topic. I thought he sided with Baratta, but it turns out that he agrees with me on this point and advises it is Council's job to set salaries. The judges are entitled to deference on just about everything else, but it is the legislature that sets the pay. If Council refuses to fund positions that the court thinks it needs, the court can file a mandamus action and will be successful if it can demonstrate that the efficient administration of justice is impaired or destroyed without these salaries or positions.

That happened several years ago in Bucks County. The judges won on some issues, but lost on others.

The court knows Council has to approve payhikes, and asked Council to approve them in 2007. Council agreed and John Cusick was at that time the sole dissenting voice.

Now Baratta is claiming the court can do as it wishes, and relies on  42 Pa.C.S. Sections 1724 and 2301, under which the state employees like Court Administrator are created.

42 Pa.C.S. Section 1724, entitled "personnel of the system", specifically excludes county employees. Subsection b specifically states it has no application to "county staff", nor does it "affect the existing powers of the salary boards of the several counties of this Commonwealth."

In Northampton County, that salary board is County Council, not the courts.

Also, judicial law clerks are county employees.

42 Pa.C.S. Section 2301, entitled "appointment of personnel," provides that judges have the authority to fix the compensation of their personal staff. But once again, county employees are specifically excluded. Subsection (b) clearly states that in no way does it intend to "limit, modify or deny the existing powers or prerogatives of county staff or other officers, other than judges, elected by the electorate of the county, to appoint and to fix the reasonable compensation of such classes of personnel as such county officers have heretofore been authorized to do by law."

In other words, Council sets the pay. The contrary argument would leave judges unfettered to pay whatever they want to whomever they want for as long as they want and for how much they want. Council is a much needed check and balance against a runaway court.

Once a law clerk is employed five years, he's vested in the pension. That is a change in compensation, and needs Council approval.

Baratta also attempts to liken the situation with clerks to professional services contracts with outside agencies. Last time I checked, we don't pay benefits or pensions to a law firm doing outside work. This is simply a silly argument.

Do I think the 2007 payhike for clerks should be recalled? As unfair as it is to prosecutors and public defenders who work much harder, no. That ship has sailed. But I'd oppose further increases and would want to establish a separate class of pay for future hires. Also, no clerk should be allowed to vest in the pension without council approval.

Is that so hard to understand?

That is a change in compensation, and Council should be consulted before some judge decides to allow a lawyer to become a career clerk, the ultimate dead-end job.

Though the Courts still refuse to address this matter, the $25 divorce stipend paid to judicial law clerks also needs to end. Reviewing divorce files is already part of their job description. They are not waitresses relying on tips. That's $110,225 over six years that belongs in county coffers, not someone who is already being paid by the County for that purpose.

A few years ago, the Register of Wills was pocketing $5 notary fees from members of the public who needed documents acknowledged. The County Solicitor stopped the practice, stating that a Register of Wills has no authority to soak taxpayers while working for them. Judicial law clerks continued supplementing their incomes with divorce stipends. That's because they are entitled. And the courts still refuse to stop a practice they know is wrong. That's because they're entitled, too.
* 1 STANDARD PA PRACTICE, Officers of Court §3:88 (2016)


Anonymous said...

So if the law clerks statuses are as county employees, must they submit to the regular hours of the county operation? Must they submit and adhere to the county instead of the state for their legal holidays? If they want to work overtime or have a day off, must they submit their wishes to a county supervisor that will review their requests?

Bernie O'Hare said...

No. They are under the direct control and supervision of the courts. They have no county supervisor but the judge for whom they work. And I have no problem with being accountable to them and only them bc this is an independent branch of government. But Council sets the wages, not the courts. And yes, they are county employees.

Anonymous said...

Then they are court-appointed. Even though they work at the pleasure of the court, they must work the hours of the operation of the County. The County has days where it has to report for work compared to days that are State holidays. They do not get a State pension and State benefits. But must report to a County supervisor and are subject to the human resource aspect of the County as opposed to the State and the electors of the Judges. Can you imagine the personal time they will rack up because they are exempt from overtime?

Bernie O'Hare said...

As I explained, they are county employees who work at the pleasure of the court. They get full benefits from the county, are considered FT employees and are vested in the county pension after five years. Most do not work 40-hour weeks. It depends on the judge. Being vested in the pension is a change in their employment and entitles them to retirement, and i believe that keeping them five years is a compensation decision and should be approved by Council. If a judge wants to do this, I am sure Council would usually agree, but they need to approve it. Also, they are paid far more than clerks elsewhere. I checked. Council might consider a reduction in salary for future hires. I would just let that go, but not the pension and not the stipends.

Anonymous said...

Our entire system is a joke top to bottom.

Anonymous said...

I think the point 1:33 is getting at is that they SHOULD have to abide by county personnel policies if they'd like all the benefits of being county employees.

I say we decrease the starting salary to be on par with, or even just above, similarly sized counties. We have the judges appoint a head law clerk and that person oversees the others to ensure compliance with county personnel policies (recording and reporting the clerk's leave time at their discretion as the different department heads do, stepping in for clerks who are unexpectedly absent and helping to train new clerks in the clerical aspects of the job as the judge trains them on the judicial side of things. New clerks are hired as "Law Clerk Intern"s and the job description states that the position will terminate after 2 years but may last with county approval for up to 5 (or however many mean they're not vested). And cut the stipends.

Anonymous said...

This is all happening while non-judicial employees are not being paid what they should be for the overload of work they put out. Totally unfair and an insult. Can't wait until Brown is out and takes his cronies with him.

Anonymous said...

Law clerks two to three years assisting the judge and learning the system, then kick them out to the real world

Anonymous said...

I think Bernie hit it on the head. The court believes they are above and beyond all law that regulates employees of the court. In essence, their employees reap the benefits of the court and the county at the same time. Where can I work in the public sector and receive the monetary and fringe benefits of two entities; Northampton County. This is another insult to the taxpayers of NC. If and when Baratta comes up for retention, he'll receive a quick no from me. His cavalier attitude gives disdain to all of the court. Apparently his reading comprehension and judgmental abilities come into question in the case at bar; and that is what scares me.