9/30/99

By HOWARD FISCHER
Capitol Media Services


PHOENIX -- Coconino County Superior Court Judge J. Michael Flournoy is trying to retire early even as he seeks to retain his seat on the bench.

Flournoy filed a request for disability retirement on May 20. That is two days after the Commission on Judicial Conduct recommended that the judge be suspended, without pay, for 18 months.

That same recommendation, if accepted by the Arizona Supreme Court, does not guarantee Flournoy ever will be able to sit as a judge again. The commission states the judge must first show he has successfully completed both a "substantial counseling program" and another program on "judicial conduct and temperament."

The Elected Officials Retirement Plan furnished the judge's request to Capitol Media Services under the state's Public Records Law -- but not before blacking out some information considered personal, including the nature and cause of the disability.

But Flournoy reportedly has told friends he is losing his vision, and that possible diagnosis is backed by the fact that the two doctors Flournoy lists on his retirement request both are ophthalmologists.

Flournoy twice declined to discuss the request, including why he sought early retirement only in May although he states on the application his disability was diagnosed three years earlier.

Technically, the judge's request has no bearing on his fight to keep from being suspended officially by the state Supreme Court. Under state law, he has been automatically suspended since May based on the commission's recommendation, but that action has yet to be ratified by the high court. Flagstaff attorney Bob Van Wyck has been appointed as a judge pro tem to handle Flournoy's caseload in the interim.

But the disability request definitely would affect how much he receives in retirement benefits if he decides to permanently leave the bench.

Elected officials accumulate pensions at the rate of 4 percent a year, up to a maximum of 80 percent of the average of what they were making for the highest three years. Flournoy, who took the bench in January 1992 would qualify for 28 percent of about $113,000.

But the law also specifies that retirement before age 65 carries a penalty. Flournoy, at age 62, would lose 9 percent, bringing his pension down to 21 percent, or about $24,000 annually.

By contrast, if Flournoy is granted disability retirement the penalty does not apply. Potentially more significant, he is presumed to have served for 10 years, pushing his pension up to more than $45,000.

Both figures would change if Flournoy exercises an option to "buy back" eight years of government service he had when he was Coconino County Attorney.

Michael Ong, deputy director of the retirement plan, said the decision of whether to grant Flournoy's request will be based on examinations by three doctors and their conclusion of whether his medical condition leaves him unable to perform his duties as a judge.

If the request is granted, that doesn't necessarily end Flournoy's ability to work. Ong said it is conceivable that he could still work as an attorney even if the doctors say he can no longer sit on the bench for medical reasons.

Last week the judge's attorney told the justices of the Arizona Supreme Court they should ignore the commission's recommendations. He defended Flournoy against all the charges.

The justices have not said when they will issue a ruling.