This week marked the start of Travis County Probate Judge Guy Herman’s self-prescribed “sabbatical” after county commissioners earlier in the month accepted the 65-year-old judge’s resignation, a resignation offered so that he could take the remainder of the year off before starting his eighth term. The potential complications this have-your-cake-and-eat-it-too move brings, however, reveals an interesting view of at least one county’s approach to public policy as well as to the law and its application.
First off, probate courts are venues deserving, but rarely receiving appropriate scrutiny. With a reported annual caseload of about 3,000 mental-health cases (including state hospital commitment cases from Travis and another 39 counties) along with another 1,800 estate administration cases, the Travis County probate court stays busy. The court’s influence is massive.
Probate courts are often seen as quiet, low-profile venues that perform administrative oversight when people die. The power of these courts is underestimated and often unrecognized as they routinely control assets worth millions, even billions, of dollars. The Declaration of Independence proclaims individual’s endowment by our Creator “with certain unalienable rights, that among these are life, liberty and the pursuit of happiness” yet with the stroke of a pen, probate judges routinely strip adult Americans of these very rights.
While billed as a legal environment offering protection to those in need, these courts often instead foster a culture of corruption. Understand their power includes an ability to remove basic civil liberties and to determine property or other asset distributions. Three basic roles exist in probate with plaintiffs, defendants and associated legal personnel that includes judges, lawyers and other court-related parties (law enforcement, social workers, court-appointed professionals, etc.).
Unsuspecting litigants are routinely disadvantaged by dependency on legal practitioners whose long-term professional (and financial) welfare is more contingent upon positive relations with court personnel – especially judges – and opposing counsel than with their own clients. In fact, these courts often entail a circle of attorneys overseen by judge to whom the deference paid is akin to those who would line up to kiss the ring of a Mafia don.
With that, Herman’s move is interesting and in keeping with an individual used to generally operating above reproach. Per the Austin American-Statesman:
But Herman didn’t think about one potential hitch in his plan: The 65-year-old can choose whether to start receiving retirement benefits once he quits.
Federal rules don’t allow the distribution of such benefits if an employee retires but expects or has an agreement to be rehired by the same employer. That’s because the Internal Revenue Service wants tax-exempt money in an employee’s pension to pay for retirement and not pad regular paychecks.
An employee who breaks the rules has to return any benefit distributions, or the entire retirement plan that all Travis County employees participate in could be at risk of being disqualified by the IRS. Participants then would have to pay taxes when they contribute and distributed benefits would also get taxed.
Herman said in an interview this week that he hadn’t considered whether it could be problematic for him to receive retirement benefits after he quits. He said he hadn’t decided whether to receive his benefits, but that if he couldn’t get the money, it would be “no big deal,” since the savings in his retirement account would only grow.
“I want a sabbatical. I’ve got a sabbatical,” Herman said. “So that’s my focus right now. Rest. Relaxation.”
The Texas County and District Retirement System told the Statesman that “state law requires that an employee have a ‘bona fide’ termination to legally receive benefits — a criteria that isn’t met if the employee plans to return as an elected official.”
Not to worry, however, Buck Wood, an Austin attorney advising Herman, said. The Statesman reported his terming Herman’s re-election bid as not being an “agreement” for the judge’s return to work, and “that if Herman did start drawing retirement benefits, there’s no way the IRS would get involved in such a small-potatoes matter.”
“We may have some disagreement with the retirement system,” Wood also told the paper. “If he decides to do it, and if they decide to make an issue about it, I’m going to be very surprised.”
So the feds don’t plan that retirement dollars be used for sabbaticals, the state apparently concurs, but legal counsel for a judge charged with upholding the law says such a breach is inconsequential – “small potatoes.”
Maybe that’s not so uncommon an attitude. After all, this is Travis County, the county that accepted – even welcomed – Travis County District Attorney Rosemary Lehmberg staying in office after an ugly, unbecoming drunk driving arrest during which she was verbally and physically abusive to law enforcement personnel. And adding insult to injury, Lehmberg continued receiving her taxpayer-funded salary while serving a negotiated jail sentence.
So while top officials are obviously unconcerned with Herman’s absence, one has to wonder if this attitude is shared by Travis County employees. After all, violations of IRS rules could disqualify from certain tax benefits the county’s retirement plan which also includes each dollar from the 7 percent contribution made out of employees’ paychecks being generously matched by $2.25 of taxpayer dollars.
Herman defended his decision of needing the time off citing past vacations as generally less than 10 days and later requiring his working on weekends. He also said, if rejuvenated from this time off, he’ll run for one if not two more terms.
The Statesman further detailed of Herman’s plan:
The Commissioners Court also voted to appoint Associate Probate Judge Dan Prashner to replace Herman as probate judge, as recommended by Herman in his resignation letter. Prashner’s pay, currently at $115,360, will increase to $158,000, the base salary for probate judges written into state law.
Herman, whose salary is $196,367, said in his resignation letter that he expects Prashner to then appoint a new, temporary associate judge. Prashner will return to his associate judge seat after the election.
If he had instead taken a long vacation, the county would spend much more money on a visiting judge, Herman said. A visiting judge is paid $627 a day, not counting reimbursements for meals, mileage and hotel expenses, wrote Todd Osburn, the county’s compensation manager, in an email.
Travis County taxpayers may finally be waking up to the realities and costs of government. Seems homeowners are unhappy about rising property taxes. While escalating real estate values contribute to some of the increase, so also does approving most every bond (i.e., tax increase) government proposes. It’s unclear if voters are making that connection, but the November election ballot with $1 billion of transportation propositions may offer insight.
Meanwhile, Travis County has long viewed itself apart from the rest of the world, certainly Texas. Probate judges often operate similarly. That said, this latest move from a probate judge in Travis County should come as no real surprise.