On his first day as director of the Administrative Office of the Courts, Andrew Heath got a pay raise of more than $12,000. While the salary hike might be expected for a directorship, Heath’s case is different. He had a benefit most state and private-sector workers don’t have: his choice of salaries.
Heath is keeping his old gig as a special superior court judge while simultaneously serving as AOC director. Even though Heath remains a judge, he had the option of receiving the director’s higher pay, according to the AOC.
Heath accepted the latter, which is unprecedented, according to payroll records reviewed by Policy Watch. The AOC’s office says the pay raise is legal and warranted.
The AOC did not respond to questions from Policy Watch asking if Heath is performing the duties of both positions: AOC director and a judge. “Judge Heath is one of 109 Superior Court Judges, and his current highest and best use is to serve as the Director to assist and equip his colleagues with the resources necessary to safely keep courts open and resume jury trials,“ wrote AOC Communications Director Sharon Gladwell in an email.
However, even though Heath is still classified as a judge, his assigned court sessions have been canceled or will be filled by other judges, if needed, Gladwell said.
Heath’s court calendars obtained by Policy Watch indicate that he was originally scheduled for two trials in Durham County and one in Warren County last month.
Meanwhile, the state’s court system needs judges to reduce the significant trial backlogs that have occurred because of the COVID-19 pandemic. Heath is requesting additional CARES Act funding to add emergency judges to address these delays, Gladwell said.
State Supreme Court Chief Justice Paul Newby can set the responsibilities of Heath’s judgeship. Newby, a Republican, appointed Heath as AOC director, in January.
Heath has been a special superior court judge since late 2016, when he was appointed to a five-year term by then-Gov.governor Pat McCrory. Heath’s term ends later this year.
Generally, state salaries and adjustments are set by the legislature as part of the budget process. Special superior court judges earn $142,082 for the current fiscal year, the amount Heath received before his recent promotion. Now his annual salary is $154,186, according to payroll records.
Several of Heath’s predecessors at the AOC also held simultaneous judgeships. But they all drew the judge’s lower salary.
Marion Warren performed the duties of the AOC director while on the bench from May to November in 2015, according to the AOC. Afterward, he gave up his judgeship and transitioned to the director’s post full-time. Only then did he receive the director’s salary, resulting in a pay bump of nearly $29,000, according to records provided by the AOC.
On the other hand, payroll records show that Heath simply remains a judge, then adds the $12,000 as a “salary adjustment” to meet that of a director’s position. The AOC did not answer questions about who approved the adjustment, only saying that the increase was allowed by state statute.
It was under former Chief Justice Burley Mitchell that the judges began doing double duty as AOC director.
Mitchell said when he picked former Court of Appeals judge Jack Cozort to head the AOC in the mid-1990s, Cozort didn’t want to relinquish his judgeship. “I simply took a judge who was still a judge, and assigned him the duties on a temporary basis of the director,” Mitchell said.
Mitchell said emergency judges were called to fill Cozort’s absence on the court. “There’s too many duties to both offices really for somebody to perform them all at one time, I would think,” he said.
Cozort did not hold dual office.
“It was my conclusion that…if it was some judicial officer who had a lower salary than the director, I would either have to appoint him as director, which would remove him from the bench, or let him serve as sort of as Acting Director at the lower salary,” Mitchell said.
As a judge, Cozort was already paid more than the AOC director, so he kept drawing his regular judge’s salary.
Thomas Ross was a superior court judge who was AOC director from June 1999 to November 2000. Ross told Policy Watch he was assigned to do the work of the director, which is a full-time job. Like Heath, he did not hear other cases as a judge, except for some remaining ones after taking on the new AOC role.
However, Ross said he could only draw the lower of the two salaries, because he never claimed the title of the AOC director.
“I don’t think you can hold both positions,” Ross said, adding that he was abiding by the statute’s rules on dual office-holding at the time. “I think you have to choose, and I chose to stay in the judge’s position, not the AOC director’s position.
Ross resigned in 2001 and is now the president of the New York-based nonprofit Volcker Alliance specializing in government and public administration.
Judge Robert Hobgood also did both jobs. He continued to be the Senior Resident Judge for the Ninth Judicial District while serving as the AOC Director. That made for very long days. “I would drive home to Louisburg after 5:30 p.m., eat supper, and go to the Franklin County Courthouse and work at night,” Hobgood said in an email.
He’s now retired.
There may also might be a political incentive for Heath to keep his judgeship while serving as AOC director. Had Heath resigned, Gov. Roy Cooper, a Democrat, could have appointed a replacement to serve the rest of Heath’s term.