Employee Handbooks: Neither Fish Nor Fowl
February 21, 2011 by Brenda Rodeheffer
The legal status of court employees is both unique and confounding. A myriad of statutes require the counties to provide space and funding so that the courts may operate. The circuit and superior courtrooms are the showpiece of most county facilities. The healthcare and pension benefits provided to court employees are the benefits provided to other county employees. The court employees receive a paycheck and W-2 from the county that looks like every other county employee’s payroll information. When a county employee has questions about benefits, the employee most likely goes to the county auditor, and the county auditor may well have distributed a county employee handbook to the court employees. If it looks like a duck, quacks like a duck, and walks like a duck, then you are probably looking at a duck. Except in this case, you’re not.
Court employees are not county employees, despite receiving a W-2 from the county, working in a county-owned building, and using the county healthcare plan. They are also not regular state employees. They are public employees of the judiciary, also known as judicial or judicial circuit employees.
Article 3, § 1 of the Indiana Constitution establishes that the judiciary is an independent state power separate from the legislative and the executive departments. The judges of appellate courts, circuit courts and superior courts are constitutional officials of the state, not of the counties. As set forth in Woods v. Michigan City, 940 F.2d 275, 279 (7th Cir. 1991):
Indiana law reveals that judges of Indiana’s circuit, superior and county courts are judicial officers of the State judicial system: they are not county officials. Pruitt v. Kimbrough, 536 F.Supp. 764, 766 (N.D.Ind.), aff’d 705 F.2d 462 (7th Cir.1982). County courts in Indiana are exclusively units of the judicial branch of the state’s constitutional system. Id. Also see Parsons v. Bourff, 739 F.Supp. 1266 (S.D.Ind.1989), and State ex rel. McClure v. Marion Superior Court, 239 Ind. 472, 158 N.E.2d 264 (1959).
As either elected or appointed constitutional state officials, each judge in Indiana has the power to select staff for the judge’s own court, and each judge has the power to fire court staff without review or approval by any other body. Without this power, the judiciary would not be a truly independent department or branch of government. Along with the power to hire and fire is the power to set terms and conditions of employment.
The principle of the right of the judiciary to set its own terms and conditions of employment has been repeatedly addressed in Indiana. 1963 OAG No. 42 was written in response to an inquiry as to whether a statute regulating city employees applied to employees of the city judiciary. Attorney General Edwin K. Steers determined that the legislature did not intend that executive branch powers should be extended to control of court officers and employees, and that responsibility for court staff rests with the judge of the court. The opinion relied on the case of State ex. rel Bailey v. Webb, 21 N.E. 2d 421, 422-23 (1939).
This fundamental principle was repeated more recently in the case of State v. Monfort, 723 N.E.2d 407, 411 (Ind. 2000). The Court wrote:
The judiciary is one of the three co-equal branches of government and its independence is essential to an effective running of the government. See Board of Comm’rs v. Stout, 136 Ind. 53, 58-59, 35 N.E. 683, 685 (1893) (Courts are an integral part of the government, and entirely independent; deriving their powers directly from the constitution, in so far as such powers are not inherent in the very nature of the judiciary.)
In particular, it has been held in a variety of contexts that the legislature cannot interfere with the discharge of judicial duties, or attempt to control judicial functions, or otherwise dictate how the judiciary conducts its order of business.
Despite the Constitutional provision and the clear case law upholding the principle of judicial independence, the question of court versus executive authority continues to arise, particularly at the county level.
The peculiar status of court employees causes unusual results, particularly in litigation. At least one court has held that in an action brought under the Fair Labor Standards Act, both the state and the county may be liable. Because the court is a distinct unit, there are federal decisions that exempt most courts from liability under the various discrimination laws because the small number of employees will not meet the minimum threshold. This is another reason to maintain the separateness of the court unit from the rest of the county. On the other hand, being a small work unit does not negate constitutional rights and other laws, such as the Family Medical Leave Act, which may apply regardless of the separation of judiciary and executive.
Because their employees are neither state nor county employees, courts have the ability to manage their offices more efficiently and provide more options for management. This independent status also gives the court an opportunity to discuss with employees the unique privilege and responsibility of being a judicial employee, as well as discussing the application of the Code of Judicial Conduct to judicial employees.
Because courts are independent, most courts will find it beneficial to have their own employee handbooks; however, some courts find it is a good option to adopt the county employee handbook for the sake of consistency. The decision depends upon how well crafted the county handbook is and what the judge prefers as far as hours of work and other provisions related to the functioning of the court. Before adopting a county handbook, it is important to review carefully and make certain that the handbook does not take away necessary control from the court. For example, for both practical and policy reasons, a court would not want to adopt a provision that allows the county commissioners to hold a hearing when a court employee is fired. There could also be provisions in a general county handbook that conflict with the Judicial Code of Conduct.
If there are no objectionable provisions, and the court decides to adopt the county handbook, the court should do so by letter to the County Commissioners. This action will preserve the court’s own powers and remind the commissioners of the court’s independent authority. A letter might state: “Indiana County Circuit Court has determined to adopt and apply the provisions of the Indiana County Employee Handbook for court employees. The Court reserves the right to withdraw its adoption of the Handbook at any time without notice. The Court may also supplement and/or amend portions of the Handbook with the Court’s specific provisions.” A warning: if the responsible judge does not notify the court’s employees of the decision to adopt or not adopt the county handbook, employees may assume that the county employee handbook applies to them. This wrong assumption can cause problems for both the judge and the employees. Even if the decision is to have no handbook at all, employees need to have the guidance of knowing the judge’s decision.