Judge’s Lengthy Sick Leave Gives Court a Big Headache

When Judge John L. Nichols took a few sick days last year from Citrus Municipal Court in West Covina, he thought he would be out of his courtroom for two or three weeks.

But the sick leave stretched to six weeks, then six months and finally 20 months, and he is still not back on the bench.

Nichols, 58, filed for disability retirement in February but has yet to hear from the state Commission on Judicial Performance, which decides on such applications.

His absence has sparked political jockeying among San Gabriel Valley attorneys who are considering running for his post in June. They may end up running against Nichols if his disability retirement has not been approved by then and he has to run again to retain his job.

Meanwhile, Nichols continues to receive his $90,680 annual salary, while taxpayers foot the bill--now $65,000--for the temporary judges handling his workload.

The costly limbo exists because judges straddle a dual position. Although they report to daily jobs like salaried workers, they are elected officials with no set hours and few rules on absences, sick leave and vacations. When they develop a long-term illness, as Nichols has, it can hamstring a court, which is powerless to replace them.

“The judiciary is in this hybrid position of having to behave as if they’re government employees, but they’re not government employees,” said Constance Dove, executive director of the California Judges Assn. in San Francisco. “It’s just sort of a can of worms.”

Nichols’ long-term leave began April 20, 1990, after he notified Presiding Judge Bruce Minto that illness would force him out for three weeks. But after Nichols failed to improve, the leave was extended by weeks a number of times.

Such generous leave is not generally available to the county’s 4,887 non-judicial court workers. They accrue 12 fully paid sick days yearly and receive more days off on partial pay based on length of employment. When that runs out, they hit what employees call “bad A-time,” or sick leave without pay.

But judges, as elected officials, can take unlimited paid days off, as needed, with approval of the presiding judge. Most courts keep no record of these judicial absences. Even if they did, such information is considered confidential and not released to the public.

The attitude of the presiding judges toward those needing time off is usually collegial, Dove said, since the presiding judge is voted in by the other judges to serve a one- or two-year stint.

“Authority is bestowed upon you by your colleagues . . . (one of whom) might be presiding judge next year,” she said.

Minto, who approved Nichols’ leave, said he granted it because he believes it is being taken in good faith.

When the absence stretched into months, Minto notified the state Commission on Judicial Performance. Under court rules, the commission must be informed when a judge is absent for more than 90 working days, roughly equivalent to 4 1/2 months.

In February, Nichols applied for retirement disability. The commission has not said when it will decide the case. If he is granted retirement disability, Nichols would receive a yearly payment equivalent to 65% of his annual salary.

Judges cannot receive regular retirement benefits until they reach age 63, or age 60 if they have 20 years on the bench.

Minto and other court officials will not reveal the nature of Nichols’ illness, citing privacy rules. But they said it is not life-threatening.

Nichols, who also declined to name his ailment, said his medical struggles have left him frustrated, separated from the work he loves and virtually a prisoner in his own home.

“It’s a blow,” said the jurist, who was appointed to the bench in 1978 by Gov. Edmund G. Brown Jr. “A lifetime of medication, that’s what I’ve got to look forward to. That’s my life.”

The uncertainty in the Citrus court will remain, and the payment of double salaries with it, until Nichols’ disability is decided, court Administrator Carrolle Aldrich said.

“The governor is not going to appoint anyone else until that position is absolutely vacant,” she said.

Minto said he hopes to have Nichols back “if he’s able. If not, we wish him the best, no matter what happens.”

Meanwhile, the judge’s absence has created hardships, Minto said. A caseload backlog developed at first because judges assigned his cases continued them, thinking Nichols would return soon.

Now Commissioner Ron Grey handles traffic cases and city code violations, as well as any overflow work, freeing the court’s six other judges and two commissioners for Nichols’ cases. The arrangement keeps the court functioning, but with extra work for everyone, Minto said.

“If we had a lazy commissioner in there, this courthouse would be in trouble,” added Patricia Ryan, deputy in charge for the district attorney’s West Covina office.

Nichols could be in trouble in June if his disability retirement is still not granted and he has to run again to keep his judgeship.

“The hot rumor is, how can he run on this record (of absence)?” Ryan said. “A lot of the defense bar is thinking about running for his seat.”

Nichols said he hasn’t considered whether he will run again.

Nichols is from a prominent San Gabriel Valley family. His father was former Citrus Court Administrator Jerry Nichols. His brother, Charles, owns a West Covina lumberyard.

A former criminal defense attorney, Nichols was elected to the bench twice without opposition. He has a reputation as a hard-working, tough judge with an even temperament. Some call him an “old-fashioned gentleman.”

But his plight is an unusual one, according to Ellen McCarthy, a spokeswoman for the state Judicial Council, the agency that provides substitute judges to the courts.

Last year, the council assigned fill-in judges for 16,593 days of work in courts statewide, for absences ranging from a few days to several weeks, McCarthy said. Surgery was the reason for most of the judges’ lost time. Only in rare situations is a judge gone for more than 90 days, she said.

Similarly rare are judicial disability applications. Only four of 1,500 sitting judges statewide applied for disability last year, according to the state Commission on Judicial Performance.

“They’re professionals,” Dove said, in explaining why judges do not apply for disability and will often work despite illness.

“Lots of judges are working hurt, working with bad backs, bad hearts . . . working on the edge of their abilities,” she said.

But another reason for such a work ethic is that once a judge is deemed disabled, the job is lost to that judge forever because the governor appoints someone else to fill the spot.

“If there’s any chance that they can come back, judges don’t want to take disability,” Dove said.

Nichols’ situation, although rare, could provide fuel for those who argue for more oversight of judges.

“There are always those who want the judiciary to be a big post office (type) bureaucracy,” Dove said.

Court battles have been waged over judicial oversight--who has authority, the county or the state?

But the question remains unresolved, Dove said.

“Are they employees that should follow the same personnel rules as the (court) secretaries and marshals, or are they like the Legislature or the governor?” she said. “The governor and the Legislature don’t have sick leave, either.”