DATE:
February 5, 2001
FROM:
Pamela M.M. Bingham
Legal Consultant
RE:
Reimbursement of Expenses - Municipal Judge
______________________________________________________________________________
You have asked whether a city’s municipal judge is subject to either the travel reimbursement
policy as set forth in the city ordinance, or reimbursement for expenses in accordance with state
statute and/or the Supreme Court Rules; specifically Rule 10, Canon 4(H), entitled
“Compensation and Reimbursement.” After careful consideration, it is my view that the
municipal judge should be reimbursed for expenses in accordance with the city ordinances.
Thus I agree fully with the conclusion reached by the city attorney.
Two provisions in the state law address reimbursement of expenses specifically for judicial
officers. The first, T.C.A. ' 8-26-101, relative to the Administrative Office of the Courts,
discusses reimbursing state appellate and trial court judges for their office expenses in
accordance with T.C.A. ' 8-26-101(1). The Administrative Office of the Courts reimburses some
judges for their office and other expenses, and provides in part as follows:
The officials and employees named hereby below shall be reimbursed out of the state treasury
for the expenses enumerated and to the extent set forth below:
(1) The justices of the supreme court, judges of the intermediate appellate courts, criminal court
judges, circuit court judges and chancellors shall be reimbursed for their necessary office rent,
office supply and equipment expenses, and travel expenses pursuant to policies and guidelines
promulgated by the supreme court.
T.C.A. ' 8-26-101(1).
Since neither municipal courts nor general sessions court constitute courts of records,
T.C.A.' ' 8-26-101 et seq. do not apply to the municipal judge. But see generally Op. Tenn.
Atty. Gen. No. 98-163 (August 24, 1998). That opinion addresses the practice of the
Administrative Office of the Courts in reimbursing state appellate and trial court judges for their
office expenses. The Administrative Office of the Courts (the "AOC") was created pursuant to
T.C.A. ' 16-3-801. The administrative director of the AOC is appointed by the Tennessee
Supreme Court and the director's duties are described in T.C.A. ' 16-3-803. Under this statute,
the director prepares the budget for the maintenance and operation of the state court system
and administers the accounts of the state court system. The AOC reimburses various judges of
the state court system for that judge's office expenses. Any judge seeking reimbursement for
expenses under this statute must file with the Commissioner of Finance and Administration a
sworn itemized statement of the amounts necessarily expended in the discharge of the person's
official duties. Upon the receipt of such verified statement, the Commissioner is required to issue
a warrant in reimbursement of such expenses. T.C.A. ' 8-26-102.
Next we look to Tennessee Supreme Court Rule 10, Canon 4H, regarding payment of expenses
for judicial officers, and the requirement of filing a public report concerning
extra- judicial compensation received:
H. Compensation and Reimbursement.
(1) Compensation and Reimbursement. A judge may receive compensation and reimbursement
of expenses for the extra-judicial activities permitted by this Code, if the source of such
payments does not give the appearance of influencing the judge's performance of judicial duties
or otherwise give the appearance of impropriety.
(a) Compensation shall not exceed a reasonable amount nor shall it exceed what a person who
is not a judge would receive for the same activity.
(b) Expense reimbursement shall be limited to the actual cost of travel, food, and lodging
reasonably incurred by the judge and, where appropriate to the occasion, by the judge's spouse
or guest. Any payment in excess of such an amount is compensation.
(2) Public Reports. A judge shall report the date, place, the nature of any activity for which the
judge received compensation, the name of the payor, and the amount of compensation so
received. Compensation or income of a spouse attributed to the judge by operation of a
community property law is not extra- judicial compensation to the judge. The judge's report shall
be made at least annually and shall be filed as a public document in the office of the clerk of the
court on which the judge serves and in the Administrative Office of the Court.
The Supreme Court Rules also lists the offices to whom the above rules and requirements apply.
Rule 10, Canon 5E, entitled “[a]pplicability” states in part: “Canon 5 generally applies to all
incumbent judges and judicial candidates...” However, the Rule goes on to state specifically the
scope of who falls within its purview.
Tennessee Supreme Court Rule 10, “Application of the Code of Judicial Conduct” provides in
pertinent part:
A. Anyone, whether or not a lawyer, who is an officer of a judicial system and who performs
judicial functions, including an officer such as a magistrate, court commissioner, judicial
commissioner, special master, divorce referee, juvenile referee, or any other referee performing
judicial functions, is a judge within the meaning of this Code. All judges shall comply with this
Code except as provided below.
B. [omitted -not applicable to this discussion]
***
C. Continuing Part-time Judge. A continuing part-time judge is a judge who serves repeatedly
on a part-time basis by election or under a continuing appointment. A judge designated as a
Senior Judge shall be considered a continuing part-time judge. Part-time general sessions
judges, part-time juvenile judges, part-time municipal judges, part-time divorce referees, parttime juvenile referees, and part-time judicial commissioners shall be considered continuing
part-time judges.
A continuing part-time judge:
(1) is not required to comply:
(a) except while serving as a judge, with Canon 3B(9) (public comments about cases);
and
(b) at any time with
Canon 4C(2) (governmental committees)
Canon 4D(3) (business interests)
Canon 4E(1) (fiduciary activities)
Canon 4F (arbitrator or mediator)
Canon 4G (practice of law)
Canon 4H (compensation and reimbursement)[emphasis added]
Canon 5B(2) (candidates seeking appointment)
(2) who is a part-time municipal judge with municipal ordinance violation jurisdiction only is also
not required to comply with Canon 5A(1) (political restrictions).
(3) shall not practice law in the court on which the judge serves or in any court subject to
the appellate jurisdiction of the court on which the judge serves, and shall not act as a lawyer in
a proceeding in which the judge has served as judge or in any other proceeding related thereto.
From reading the all of above-cited Canons together, it is clear that while a municipal judge may
be subject to some of the provisions of the Code, see infra “Application of the Code of Judicial
Conduct,” Part A, a part-time municipal or general sessions judge is exempted from the Canon
4H, regarding compensation and reimbursement of expenses. Therefore, it is my opinion that
the reimbursement of expenses for such a municipal official would be in accord with the city’s
ordinances, as authorized by general state law, T.C.A. ' 6-54-901. It states as follows:
' 6-54-901. Municipal officers and employees; expenses incident to office;
reimbursement; policy; reports
(a) Notwithstanding the provisions of any public or private act to the contrary, in all
municipalities of the state, any mayor and any member of the local governing body, and
any board or committee member elected or appointed by the mayor or local governing
body and any official or employee of the municipality whose salary is set by charter or
general law, may be reimbursed from municipal funds for the actual expenses which
such municipal officer may incur as an incident to holding such office.(emphasis added)
(b) The municipal legislative body shall by ordinance determine whether or not to pay the
expenses of the mayor or any member of the local governing body, and any board or
committee member elected or appointed by the mayor or local governing body, and any
official or employee of the municipality whose salary is set by charter or general law;
and, if it is determined that the municipality will reimburse expenses, shall enact a written
policy as to how expenses will be reimbursed and determine what expenses are
reimbursable. (Emphasis supplied)
(c) In such municipality it is the duty of the chief administrative officer or such chief
administrative officer's designee to prescribe forms on which expenses will be reported,
and it is further made such chief administrative officer's duty to examine such expense
report to determine if all expenses so listed as reimbursable are legally reimbursable
expenditures within the schedule as determined by the municipal legislative body and, if
such listed expenses are reimbursable, then to forward the expense report to the proper
disbursing officer for payment.
To sum up the dispositive parts of the above statute, only approved expenses that have already
been incurred may be reimbursed to the municipal official. The plain meaning of the word
“reimburse” means “to pay back.” Thus, the statute contemplates repayment of out-of-pocket
expenses incurred in the official’s ordinary course of business. In my opinion, the city’s
Ordinance, No. 146, complies with this directive.
Please let me know if need any further assistance with respect to this matter.