Raleigh, N.C. — Even though Senate leaders declined to propose salary increases this year for most people in the judicial branch, a provision tucked deep in the Senate budget would financially benefit four judges, including two who are close to Senate President Pro Tem Phil Berger.
The provision would allow years of experience as an administrative law judge in the Office of Administrative Hearings, an executive branch body, to count toward longevity bonuses for sitting judges in the judicial branch.
Longevity bonuses can substantially raise a judge's pay. Under current law, judges receive a bonus equal to 4.8 percent of their salary after five years of service. That jumps to 9.6 percent after a decade, to 14.4 percent at 15 years and 19.2 percent at 20 years. At 25 years, it tops out at 24 percent of salary.
According to the OAH, four current judges have served as administrative law judges in the past. Those four are Court of Appeals Judge Phil Berger Jr., Special Superior Court Judge Beecher Gray, Supreme Court Justice Mike Morgan and Wake County District Judge Craig Croom.
Gray would be, by far, the largest beneficiary of the change. After serving for 28 years as an administrative law judge, Gray was named a Special Superior Court judge by then-Gov. Pat McCrory in 2014. His term ends in 2019. Counting his 28 years at the OAH toward his judicial longevity would add a 24 percent bonus, boosting his yearly pay by $31,820 for the final 18 months of his term.
Gray was a law school classmate of Sen. Berger in the accelerated program at Wake Forest University, graduating in 1982. Campaign finance reports at the State Board of Elections show he contributed $3,000 to Berger from 2012 to 2014.
Judge Berger would be boosted into a new bracket. The son of Senate leader, he served as a district attorney from 2006 to 2014, earning eight years of credit toward judicial longevity pay. He was elected to the Court of Appeals in 2016. Counting his two years as an administrative law judge toward his longevity would boost him to the 10-year mark, resulting in an extra $6,730 per year.
Morgan would also be boosted into a new bracket. With 23 years of judicial longevity, adding his five years as an administrative law judge would push him over the 25-year mark, increasing his longevity bonus by $7,018 per year.
Croom would receive about a year more longevity credit for his service as an administrative law judge, although his biography shows he currently has about 15 years' service as it stands, so the change wouldn't have much effect.
Neither the Administrative Office of the Courts nor the OAH asked for the budget change.
Shelly Carver, a spokeswoman for Sen. Berger, said the senator had nothing to do with the provision, an assertion echoed by Senate budget Chairman Brent Jackson.
The provision first originated in the House's 2015 budget proposal. Jackson, R-Sampson, said now-retired Rep. Leo Daughtry, R-Johnston, was behind it at the time.
"During the conference committee, it came out, and then after that time, it was brought to myself and to the co-chairs' attention that it only affected a handful of people and had very few implications on the budget process," Jackson said.
Asked who was pushing to revive the provision this year, he said, "It was just around. It was in conversation maybe before [Daughtry] left."
Daughtry is out of the country and could not be reached for comment.
Jackson pointed out that, under existing law, district attorneys, clerks of Superior Court, members of the state Utility Commission and the director and assistant director of the AOC can all count their service toward judicial longevity if they become judges.
"We decided what was fair for one was fair for the other. The old saying we say in Sampson is, what's fair for the goose is fair for the gander. So, we put it in there this time," Jackson said. "We’re only talking about a handful of administrative law judges – and they are judges – and all the other judges in this state are treated the same way. So, I feel like it’s only the fair thing to do."
"I personally do not know Phil Berger Jr., and Sen. Berger had no knowledge of this provision in the budget," he said. "To my knowledge, he had no knowledge of this whatsoever."
Reached by telephone, the younger Berger also said he had no knowledge of the provision and had not seen it nor asked for it. After WRAL News sent him a copy electronically, he offered no further comment.
'A better fit'
Gray, however, defended the proposal.
"I know it’s been around for a while," he told WRAL News, noting that, of the four beneficiaries, two are Republicans and two are Democrats.
"I’ve had discussion with folks, and anytime it has come up, I say I’d be in favor of that," he said.
Like Jackson, Gray mentioned the list of other court officers who are allowed to count their non-bench service toward judicial longevity.
"None of those are judges. An administrative law judge is a judge, so it seems like it’s a better fit," he said.
Gray has a long history of campaign donations to candidates from both parties. "I’ve been criticized from both sides of the aisle for all of it," he added.
But he said an October 2014 contribution of $1,000 to Sen. Berger's campaign listed in the state elections board's database wasn't from him, although he said it might have been from his wife. He said it could be a clerical error on the part of the campaign, since the judicial code of ethics doesn't permit sitting judges to make campaign donations.