In the Matter of Thomas P. O'Neill, et al., Appellants-Respondents,v.Ann Pfau,, Respondent-Appellant.

Brief

N.Y.May 7, 2014

To Be Argued By: Lee Alan Adlerstein Time Requested: 15 minutes QCourt of §ppeals of tbe ~tate of ~e\t1 ~ork In the Matter of the Application of THOMAS P. O'NEILL, as President of the Suffolk County Court Employees Association, Inc. ANTHONY CETTA, DONALD CURABA, MARIO D' AMARO, CARMINE LORENZO and ANTHONY PROCIDA, Appellants-Respondents, - against- HON. ANN PFAU, as Chief Administrative Judge of the OFFICE OF COURT ADMINISTRATION, STATE OF NEW YORK - UNIFIED COURT SYSTEM, Respondent-Appellant. BRIEF FOR RESPONDENT-APPELLANT CHIEF ADMINISTRATIVE JUDGE OF THE COURTS LEE ALAN ADLERSTEIN PEDRO MORALES Of Counsel JOHN W. McCONNELL New York State Office of Court Administration 25 Beaver Street, 11 th Floor New York, New York 10004 (212) 428-2150 Attorney for Respondent-Appellant Date Completed: October 24, 2013 Appellate Division - Second Department Docket No. 2011-02235 Suffolk County Clerk's Index No. 15871/05 TABLE OF CONTENTS Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. iii Preliminary Statement ............................................... 1 Questions Presented ................................................. 4 Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Statement of the Case ............................................... 5 1. January 2004 Reclassification of Court Security Titles . . . . . . . . . . . 5 2. Reclassification and Reallocation of Titles .................... 7 3. The December 2004 Retroactive Reclassification .............. 10 4. The Article 78 Proceedings and the Rulings Below ............ 11 POINT ONE ..................................................... 15 INTERPOSED MORE THAN 11 MONTHS AFTER THE JANUARY 2004 RECLASSIFICATION DETERMINATION TOOK EFFECT, PETITIONERS' CHALLENGE TO THAT DETERMINATION IS BARRED BY THE STATUTE OF LIMITATIONS ................. 15 POINT TWO ..................................................... 19 IN ANY EVENT, THE CHIEF ADMINISTRATIVE JUDGE CORRECTLY ADMINISTERED THE JANUARY 2004 DETERMINATION, WHICH SUBSTANTIALLY CHANGED THE SCOPE OF POSITIONS TO WHICH PETITIONER MIGHT BE ASSIGNED, AS A "RECLASSIFICATION" RATHER THAN A "REALLOCATION" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 1 PO INT THREE ................................................... 23 BECAUSE THE CHIEF ADMINISTRATIVE JUDGE HELD BROAD DISCRETIONARY AUTHORITY TO INCREASE PETITIONERS' SALARY GRADE RETROACTIVEL Y IN DECEMBER 2004, AND RATIONALLY EXERCISED THAT AUTHORITY, THE APPELLATE DIVISION ERRED IN NULLIFYING THAT RETROACTIVE ADJUSTMENT ......................... 23 CONCLUSION ................................................... 28 11 TABLE OF AUTHORITIES Cases Adelman v. Bahou, 85 A.D.2d 862, 446 N.Y.S.2d 500 (1981) ............................ 20 Affronti v. Crosson, 95 N.Y.2d 713, 746 N.E.2d 1049 (2001) ..................... 0 • 0 ••••• 25 Ass'n of Secretaries to Justices of Supreme & Surrogate's Courts in City of New York Vo Office of Court Admin. of State ofNoY., 75 NoY.2d 460, 553 N.E.2d 979 (1990) 0 •••••• 0 • 0 •• 0 •••••• 0 •• 0 • 0 •• 0 •• 24 Ass'n of Surrogate & Supreme Court Reporters Within City of New York v. Bartlett, 40 N.Y.2d 571, 357 N.E.2d 353 (1976) . 0 ••• 0 • 0 ••••••••• 0 • 00' 0 ••••••• 22 Bellacosa Vo Classification Review Bd. of Unified Court Syso of State of N.Y., 72 N.Y.2d 383, 530 N.E.2d 826 (1988) 0 0 • 0 •• 0 ••• 0 •••• 0 • 0 •• 0 ••••• 0 24, 26 Camperlengo v. State Liquor Auth., 16 A.D.2d 342, 228 N.Y.S.2d 115 (1962) ....... 0 • 0 ••• 0 0 ••••••••• 0 0 0 0 17 Chase v. Bd. ofEduc. of Roxbury Cent. Sch. Dist., 188 AoDo2d 192, 593 NoY.S.2d 603 (1993) 0 0 0 0 0 0 0 0 •••••• 0 ••• 0 0 0 •• 0 •• 0 17 Civil Servo Employees Ass'n. Inc., Local 1000. AFSCME, AFL-CIO v. State of New York Unified Court Syso, 55 A.D.3d 1070, 865 N.Y.S.2d 753 (2008) 0 0 0 0 0 ••••• 0 • 0 •• 0 ••••• 0 0 0 0 •• 20 Civil Serv. Employees Ass'n, Inc., Local 810 v 0 Clinton Cnty. Dep't of Pub. Health, 169 AoD.2d 970, 564 N.Y.S.2d 869 (1991) .......... 0 • 0 0 • 0 000 ••• 0 •••• 19 Cohen Vo New York State Civil Servo Comm'n, 90 A.D.2d 884, 456 N.Y.S.2d 525 (1982) .. 0 ••••••••• 0 ••• 0 • 0 0 0 0 0 0 0 0 •• 22 111 Corkum v. Bartlett, 46 N.Y.2d 242 (1979) ............................................ 24 Cove v. Sise, 124 A.D.2d 486, 508 N.Y.S.2d 1 (1986) ............................. 21 Cove v. Sise, 71 N.Y.2d 910, 523 N.E.2d 815 (1988) ........................... 25,26 Dillon v. Nassau Cnty. Civil Servo Comm'n, 43 N.Y.2d 574, 373 N.E.2d 1225 (1978) ............................. 25 Donegan v. Nadell, 113 A.D.2d 676, 497 N.Y.S.2d 692 (1986) ........................... 25 Gavigan v. McCoy, 37 N.Y.2d 548, 338 N.E.2d 517 (1975) .............................. 22 Goodfellow v. Bahou, 92 A.D.2d 1085, 461 N.Y.S.2d 570 (1983) ........................... 25 Grossman v. Rankin, 43 N.Y.2d 493, 373 N.E.2d 267 (1977) .............................. 25 Grossman v. Rankin, 44 N.Y.2d 733, 376 N.E.2d 946 (1978) .............................. 25 King v. City of Newburgh, 84 A.D.2d 388, 446 N.Y.S.2d 329 (1982) ............................ 17 Lower Eastside Servo Ctr., Inc. v. New York State Div. of Substance Abuse Servs., 156 Misc. 2d 72, 591 N.Y.S.2d 951 (Sup. Ct. 1992) .................... 17 McGreevy v. Classification Review Bd. of Unified Court Sys. of State of N.Y., 154 A.D.2d 678, 546 N.Y.S.2d 882 (1989) ........................ 20, 25 IV McGreevy v. Classification Review Bd. of Unified Court Sys. of State of N.Y., 75 N.Y.2d 707, 553 N.E.2d 1024 (1990) ............................. 20 McKillop v. Lippman, 9 Misc. 3d 635, 802 N.Y.S.2d 886 (Sup. Ct. 2005) ............. 7, 18,21, 22 O'Neill v. Pfau, 101 A.D.3d 731,955 N.Y.S.2d 618 (2012) ........................... 13 O'Neill v. Pfau, 31 Misc. 3d 184,915 N.Y.S.2d 465 (Sup. Ct. 2011) .................... 12 Port Jefferson Health Care Facility v. Wing, 94 N.Y.2d 284, 726 N.E.2d 449 (1999) .............................. 25 Rapuzzi v. City of New York, Civil Servo Comm'n, 161 A.D.2d 715, 555 N.Y.S.2d 856 (1990) ........................... 17 Virgin v. New York State Liquor Auth., 110285/11,2012 WL 1062815 (N.Y. Sup. Ct. Mar. 21, 2012) ............ 17 Whitehead v. City of New York, 79 A.D.3d 858, 913 N.Y.S.2d 697 (2010) ............................ 18 Constitution N.Y.S. Constitution, Art. VI § 28(b) .................................. 23 Statutes N.Y. C.P.L.R. 5602(a) (McKinney) .................................... 5 v Regulations N.Y. Compo Codes R. & Regs. tit. 22, § 25.5(a) ......................... 26 N.Y. Compo Codes R. & Regs. tit. 22, § 25.5(c) ......................... 26 N.Y. Compo Codes R. & Regs. tit. 22, § 80.1[16] ........................ 23 VI Preliminary Statement In this Article 78 proceeding brought by several court officers of the Unified Court System and their union president, seeking review of two 2004 title classification determinations by respondent Chief Administrative Judge of the Courts ("CAJ"), petitioners appeal, and the CAJ cross-appeals, from a decision and order of the Appellate Division, Second Department, entered December 5, 2012 (R.200-202),1 that, in pertinent part, (1) dismissed as untimely petitioners' challenge to a January 2004 reclassification of petitioners' employment title, and (2) sustained petitioners' challenge to the retroactive application of a December 2004 upward adjustment of petitioners' title grade. By leave of the Appellate Division, petitioners have appealed the former ruling; the CAJ has cross-appealed the latter. * * * This cross-appeal addresses the scope of the power of the Chief Administrative Judge of the Courts to increase an employee title grade -- that is, salary scale -- retroactively, in a manner designed to confer a benefit but avoid the grant of a windfall. In January 2004, following extensive analysis, the CAJ implemented a thoroughgoing statewide reclassification of the Unified Court INumbers in parentheses preceded by "R." refer to pages in the Record on Appeal. System's court security title series. As a result, along with scores of their peers, petitioners Anthony Cetta, Mario D' Amaro, Carmine Lorenzo, and Anthony Procida -- court officers assigned to courts in Suffolk County ("SCCOS,,)2 -- received a new title and a one-grade upward salary adjustment (from JG-16 to JG-17). Eleven months later, as the rollout of the reclassification progressed, the CAJ concluded, sua sponte, that petitioners' new title more appropriately had merited a two-grade upward adjustment (from JG-16 to JG-18). Consequently, in December 2004 he readjusted that grade to JG-18 retroactive to January 2004, and made retroactive payments placing all title holders in the position they would have occupied had they received a seamless, two-grade reclassification at that earlier time. Though accepting this upward adjustment in grade, petitioners wanted more. They therefore commenced the instant proceeding, arguing that the retroactive application of the adjustment -- albeit not the adjustment itself -- was arbitrary and capricious, and wrongly deprived them of an additional salary increase and "continuous service credit" towards future longevity awards that they would have received had the adjustment been treated prospectively as an 2In addition to these four court officers, petitioners include Court Officer-Sergeant Donald Curaba and Thomas P. O'Neill, the president of petitioners' union. -2- independent salary reallocation. As we shall describe more fully below, the Supreme Court concurred in this argument; in relevant part, the Appellate Division affirmed, finding that the CAJ had failed to articulate a rational basis for the retroactive adjustment. We respectfully submit that this was error. The rationale for retroactive application of the December 2004 salary adjustment was self-evident and eminently proper: it granted petitioners the higher salary and increment scale available to Grade 18 employees on the very date that their new job duties had become effective eleven months earlier. Because that retroactive application of the higher grade was limited in scope, accurately reflected the link between the adjustment and the earlier reclassification, treated petitioners favorably but denied them excess benefit, and represented a measured protection of the public fisc, it was an appropriate exercise of the CAJ's broad discretion as the chief administrative officer of the Unified Court System. Consequently, the petition should be denied in its entirety, and the proceeding should be dismissed. -3- Questions Presented [On the SCCOs' appeal] 1. Was petitioner's July 2005 Article 78 challenge to the January 2004 reclassification order untimely? The Appellate Division correctly ruled in the affirmative (R.20 1-202). 2. In any event, was the January 2004 reclassification, which placed petitioners in a group of court officers in a title with substantially broader assignment duties, properly made? The Appellate Division did not reach this question. [On the Chief Administrative Judge's cross-appeal] 3. Did the Chief Administrative Judge rationally and appropriately adjust petitioners' December 2004 salary grade increase retroactive to January 2004? The Appellate Division incorrectly concluded that the Chief Adtpinistrative Judge had failed to articulate the rationale for retroactive application of the salary grade increase set forth in the December 2004 Order (R.202). -4- Jurisdiction This Court has jurisdiction under CPLR § 5602(a), pursuant to the Order of the Appellate Division, Second Department, dated July 12, 2013, granting leave to appeal from the determination of that Court which finally determined the underlying Article 78 proceeding (R.199). Statement of the Case 1. J anuar:y 2004 Reclassification of Court Security Titles In January 2004, following careful study, the Chief Administrative Judge for the Unified Court System3 issued an administrative order ("AO/072/04") (R.l27-154) implementing a major reclassification of the Unified Court System's court security title series. The January 2004 reclassification was intended to merge two distinct categories of title and rank for 1400 security officers around the State: those who served in courts of superior jurisdiction, such as Supreme and County Courts, and those who served in courts of limited jurisdiction, such as Civil, Criminal, Family and District Courts (R.84-88). The reclassification eliminated this distinction; broadened and upgraded titles, responsibilities, and 3The Chief Administrative Judge of the Courts in January 2004 was the Hon. Jonathan Lippman; the Hon. Ann Pfau assumed that position in May 2007; the Hon. A. Gail Prudenti has held the post since November 2011. -5- salary levels of court officers and supervisors to a uniform statewide standard; and made all officers available for assignment or reassignment to any trial court, as follows (R.30-32 and 89-90): Former Security Titles New Security Titles *Court of limited jurisdiction (as of January 2004) **Court of general jurisdiction NYS Court Officer-Trainee (JG-14) Court Officer (JG-16)* NYS Court Officer (JG-17) Senior Court Officer (JG-18)* * Court Officer-Sergeant (JG-17)* NYS Court Officer-Sergeant (JG-19) Senior Court Officer-Sergeant (JG- 19)** NYS Court Officer-Lieutenant (JG- 22) Associate Court Officer I (JG-22)* NYS Court Officer-Captain (JG-24) Associate Court Officer II (JG-23)** Principal Court Officer I (JG-24)* NYS Court Officer-Major I (JG-26) Principal Court Officer II (JG-2S)* * Principal Court Officer I (JG-24)* NYS Court Officer-Major II (JG-28) Principal Court Officer II (JG-2S)* * (in larger courts) Of particular relevance to this case is the treatment of the Court Officer title. Prior to the reclassification, that title was the entry-level position for the court security title series; Court Officers were assigned only in courts of limited jurisdiction and service in that title was required for promotion to the Senior Court -6- Officer (JG-18) title (R.61-63 and 85). In contrast, Senior Court Officers were assigned primarily in the Supreme and County Courts - courts which, because they handled more jury trials and cases of substantial public interest generally presented more challenging issues of court security (e.g., sequestration, jury transport, and press management) (R.86-87 and 108-110). Pursuant to the January 2004 reclassification, the Court Officer and Senior Court Officer titles were assimilated into the new title of "NYS Court Officer" (R.38-41, 61-67, 92 and 108-110); a new entry-level position was created (NYS Court Officer - Trainee); the NYS Court Officer position became a promotional title requiring prior trainee service; and officers in this new position were . thereafter eligible for assignment not only to lower trial courts, but also to superior courts, with their differing jurisdictions, practices, and security challenges. In consequence of these broad changes, as one court later noted "[i]t is clear ... that the new Title ofNYS Court Officer has substantially different duties and responsibilities from that of the former Court Officer Title" (McKillop v. Lippman, 9 Misc.3d 635, 640-41 [Sup. Ct. N.Y. Co. 2005] [Rosalyn Richter, J.]). 2. Reclassification and Reallocation of Titles Pursuant to Judiciary Law § 37, the Chief Administrative Judge has promulgated a salary schedule reflecting the grades established for all job titles in -7- the Unified Court System's classification plan. That schedule sets a hiring rate for each grade and seven equal annual increments, or steps, leading to a maximum salary in each grade.4 The schedule also provides for the award of two additional "longevity" increments to employees who have reached a grade's maximum salary and thereafter earned "continuous service credit" for an additional four or eight years. Judiciary Law § 37 also governs the manner in which employee salaries are adjusted in the event of a change in title and salary grade. Crucial to that adjustment is the context and purpose of the grade change. Pursuant to section 37(5)(a), a title amendment entailing a substantial change of duties and responsibilities of a position is treated as a reclassification, and entitles an employee to a salary increase of a single increment on the schedule for the new, higher grade.s Following the reclassification, the employee earns additional increments up to the higher maximum salary of the new grade, and longevity increments thereafter -- in the same manner as any other employee at that grade. Because longevity increments require "continuous service credit" at the new 4An example of a salary schedule is set forth in the Record On Appeal at R.72. SIfthe employee's old salary plus the increment are less than the hiring rate of the new grade following reclassification, the employee receives that hiring rate. -8- grade's maximum salary, employees who had earned such credits at the lower maximum salary of their former positions might be unable to apply those credits towards longevity increment in the new grade. In such cases, those employees -- . like all others in the grade -- are required to serve an appropriate additional period at their new, higher salary to qualify for the longevity increment. Thus while an upward reclassification immediately places and keeps all employees in a better financial position, it may alter the timing of future advancement in the new grade. In contrast, a change in salary grade that does not entail a change in duties and responsibilities is treated as a "reallocation" of the position pursuant to Judiciary Law § 37(11). In such cases, the employee moves to the same salary schedule "step" in the new, higher grade that she had reached in her former grade, and receives a salary commensurate with that step.6 In addition, the employee may apply all continuous service credit earned in the former title towards longevity increases in the new, higher title. Thus, the employee both receives an immediate financial benefit, and continues to be eligible for additional increases, including longevity bonuses, in the same fashion and timetable as before. 6In the case of a single-grade reallocation, this increase is slightly more than the "increment" increase provided in a reclassification; in the case of a two-grade reallocation, it is substantially higher than a two-grade reclassification. -9- In short, while both a reclassification and a reallocation result in a salary that is higher than the salary earned in the former position, the reallocation yields a greater salary increase because it seeks to compensate the employee for the time served in a position when the nominal title has changed, but the job duties have not. As required under Judiciary Law § 37, the January 2004 salary adjustment-- which substantially altered the duties and responsibilities of most affected employees -- was treated by the CAJ as a "reclassification." Consequently, employees previously serving in the Court Officer title received a single increment to reflect the reclassification of their position from the JG-16 to the JG-17 salary grade in January 2004 (R. 70-71). 3. The December 2004 Retroactive Reclassification As the statewide reclassification of the unified security series was implemented throughout 2004, the Chief Administrative Judge concluded sua sponte that, albeit not legally required, a grade JG-18 was a more appropriate measure of status and compensation for the responsibilities of the NYS Court Officer title. Because the initial reclassification of the title had occurred recently, and because the further salary change was based upon the change of duties reflected in that earlier reclassification, the CAJ further determined that the -10- adjustment should be applied retroactively to January 2004, granting former Court Officers a single, two-grade increase effective on that date. By administrative order dated December 22, 2004 ("AO/534/04")(R.33-50 and R.123-154), the CAJ implemented this determination. 4. The Article 78 Proceedings and the Rulings Below On July 22, 2005, petitioners commenced this Article 78 proceeding in Supreme Court, Suffolk County (R.23-55), claiming that the December 2004 Order constituted a salary reallocation, that its retroactive application was arbitrary and capricious, and that petitioners had wrongfully been deprived of the full grade increase to which they were entitled under Judiciary Law § 37(11). In a second amended petition filed in October 2010 (R.184-188), petitioners expanded their claims, argued that both the January 2004 and the December 2004 Orders were separate reallocations, and that they were entitled to two grade increases -- rather than a single, two-grade salary increment -- and placement on the Grade 18 salary schedule corresponding to their previous position on the Grade 16 schedule for purpose of future longevity awards. In response, the Chief Administrative Judge argued, inter alia, that (I) petitioners' challenge to the January 2004 Order was barred by the statute of limitations; (2) the January 2004 Order was a proper reclassification of the Court -11- Officer title; and (3) the CAJ had ample authority to adjust petitioners' salaries upwardly and retroactively in December 2004, to award petitioners and others a two-grade salary reclassification, effective January 2004. By decision and judgment (one paper) (R.l2-22),1 the Supreme Court granted the portion of the petition seeking a salary increment reflecting continuous service for former Court Officers serving in Suffolk County.8 Finding the challenge to both determinations to be timely, and showing no deference to the CAJ's distinction between responsibility for service in courts of limited jurisdiction and other courts, the court concluded that former Court Officers were generally performing the same security duties and responsibilities following the reclassification as they had prior to January 2004 (R.14-16). It further held that the CAJ lacked authority to adjust a salary grade retroactively (R.20-21).9 7The decision and judgment is officially reported at O'Neill v. Pfau, 31 Misc.3d 184 (Sup. Ct. Suffolk County 2011). 8The Office of Court Administration has determined that this order would require both pay expenditures of approximately $1.4 million; if applied statewide (notwithstanding jurisdictional and other defenses), that cost would exceed $5.4 million (R.98-99). 9Supreme Court denied that portion of the petition seeking a salary increment reflecting continuous service for personnel in the NYS Court Officer - Sergeant title, finding the duties and responsibilities of that title to be substantially different from the antecedent Court Officer - Sergeant title, and that, in any event, that claim was (continued ... ) -12- On the CAJ's appeal, the Appellate Division reversed in part, and affirmed in part. (R.200-202)10 The Second Department held petitioners' July 2005 challenge to the January 2004 reclassification to be untimely. However, it concluded that, because the record lacked a rational explanation for the retroactive application of the December 2004 grade adjustment, petitioners were entitled to have that order treated as a reallocation rather than a reclassification: With respect to the December Order, the parties dispute whether the appellant [CAJ] even has the authority to make retroactive salary adjustments. We need not address this issue, because regardless of whether the [ appellant] has such authority, the [SCCOs] came forward with evidence that they were financially harmed by the retroactive salary adjustment, and established that no rational basis for retroactivity appears in the record [citation omitted]. Indeed, no explanation, rational or otherwise, for the retroactive application of the December Order was offered in the appellant's answer or submissions in opposition to the petition. Accordingly, the [SCCOs] established their entitlement to the relief sought as to the December Order [citations omitted]. (R.202) (emphasis added). The Court did not address the self-evident explanation for the retroactive order: that having made the decision to amend the salary grade 9( ... continued) barred by the statute of limitations (R.18-19). Petitioners did not appeal that ruling. 10 The order is officially reported at O'Neill v. Pfau, 101 A.D.3d 731 (2dDept. 2012). -13- of the recently-created position ofNYS Court Officer, that adjustment should apply for the full extent of the title's existence. The Appellate Division subsequently granted the CAJ's motion, and petitioners' cross-motion, for leave to appeal (R.199). -14- POINT ONE INTERPOSED MORE THAN 11 MONTHS AFTER THE JANUARY 2004 RECLASSIFICATION DETERMINATION TOOK EFFECT, PETITIONERS' CHALLENGE TO THAT DETERMINATION IS BARRED BY THE STATUTE OF LIMITATIONS The Appellate Division properly rejected petitioners' belated challenge to the January 2004 reclassification. It is well established that an Article 78 proceeding "against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner .... " CPLR 217(1). A determination is final and binding "when no subsequent events need take place for the petitioner to be affected by the decision." Sutherland v. Village of Suffern, 139 A.D.2d 728, 729 (2d Dept. 1988) (citation and internal quotation omitted). The statute of limitation starts to run once the petitioner "has been aggrieved by the [ administrative determination] or it has an impact on the petitioner." Matter of Maurer v. State Emerg. Mgt. Off., 196 Misc.2d 750, 752 (Sup. Ct. Albany County 2003), affd, 13 A.D.3d 751 (3d Dept. 2004). In addressing matters relating to an administrative decision affecting payment of salary, the limitations period commences upon receipt of a check or salary payment reflecting that decision. See, e.g., Matter of Maurer, supra, 196 Misc.2d at 753 (receipt of paycheck without overtime pay starts the running of the -15- statute of limitations for an Article 78 proceeding to challenge the failure to pay overtime); Matter of Lacosse v. McCauley, 229 A.D.2d 890, 891 (3d Dept. 1996) ("We are not at all persuaded that petitioners could acquiesce in the payment of salary not reflecting their prior service for extended periods of time ... without forfeiting their right to both administrative and judicial challenge."). In this case, the statute of limitations for challenging the January 2004 reclassification determination began to run when the SCCOs received their first pay check without the service credit salary increment that they seek -- April 7, 2004 (R.170-171) -- and expired on August 7, 2004 .. Consequently, any claims addressing that determination in the instant proceeding, which was commenced on July 22, 2005 were properly dismissed as untimely (R.201-202). SCCOs' contrary claims are meritless. Their contention that, in adjusting the NYS Court Officer title from the JG-17 to the JG-18 salary grade in December 2004, the CAJ "necessarily compared duties of the New York State Court Officer (JG-17) with the duties of both prior Court Officer (JG-16) and prior Senior Court Officer positions" (SCCOS Main Brief p. 15) -- is simply mistaken. The December 2004 order did not reconsider the duties of the former Court Officer position. Instead, it reexamined the salary of the NYS Court Officer title within the matrix of other new titles in the reclassified title series. If the seeos were -16- troubled by that latter determination -- that is, if they felt that their salaries should have remained at JG-17, or should have been raised still higher, or that the December 2004 order, standing alone, constituted a title reallocation -- they had the right to challenge that determination on those issues within four months. But the December 2004 salary adjustment did not reopen the January 2004 reclassification determination for belated challenge. The SCCDs' resort to legal authority is likewise unavailing (SCCD Main Briefpp. 13-14, citing Matter ofCamperiengo v. State Lig. Auth., 16 A.D.2d 342 (1st Dept. 1962); Chase v. Bd. ofEduc. of the Roxbury Cent. School Dist., 188 A.D.2d 192 (3d Dept. 1993); Matter of Lower Eastside Service Cntr., In. v. N.Y.S. Div. of Substance Abuse Serv., 156 Misc.2d. 72 (Sup. Ct. N.Y. Co. 1992); King v. City of Newburgh, 84 A.D.2d 388 (2d Dept. 1982). In each of those matters, petitioners presented evidence that the reviewing entity undertook a formal review of its original determination. No such evidence has been presented or alleged in the instant case. In consequence, the January 2004 reclassification stands as final and binding. See Rapuzzi v. City of New York Civ. Servo Commn., 161 A.D.2d 715 (2d Dept. 1990) (reconsideration of decision to deny application for employment in light of subsequently decided cases does not constitute fresh, complete and unlimited examination); Virgin v. N.Y.S. Lig. Auth. 2012 WL -17- 1062815 (Sup. Ct., New York County 2012) (State Liquor Authority's decision to amend liquor license, granted more than four months earlier, to authorize installation of two additional bars does not constitute a fresh, complete and unlimited examination). Finally, the SCCOs have raised a claim in their brief to this Court, for the first time on appeal, that the CAJ waived the statute of limitations defense in another matter (McKillop v. Lippman, 9 Misc.3d 635 [Sup. Ct. N.Y. County 2005]), and are therefore barred from invoking that defense here (SCCO Main Brief p. 16). Since this argument was not raised in the original Article 78 proceeding, this Court should not consider it now. See Whitehead v. City of New York, 79 A.D.3d 858, 861 (2d Dept. 2010) ("An appellate court should not, and will not, consider different theories or new questions, if the opposing party might have offered proof or refute or overcome them had these theories or questions been presented to the court in the first instance.") In any event, the SCCOs cite no authority for this mistaken legal proposition, and we are aware of none. -18- POINT TWO IN ANY EVENT, THE CHIEF ADMINISTRATIVE JUDGE CORRECTL Y ADMINISTERED THE JANUARY 2004 DETERMINATION, WHICH SUBSTANTIALLY CHANGED THE SCOPE OF POSITIONS TO WHICH PETITIONER MIGHT BE ASSIGNED, AS A "RECLASSIFICATION" RATHER THAN A "REALLOCATION" Petitioners are not only incorrect in the procedural posture of their belated challenge to the January 2004 reclassification: they err on the merits as well. As noted supra, Section 37 of the Judiciary Law governs the manner in which the salary of a court employee is adjusted in the event of a change in title and grade. Where the title change results in a substantial change in the duties and responsibilities of a position, Judiciary Law § 37(5)(a) dictates that the employee receive a salary increment to this new title's higher grade. In contrast, where the new title "represents no substantial change in the duties and responsibilities from those associated with the former title," Judiciary Law § 37(11) calls for both receipt of salary increase and retention of continuous service credits earned in the former position. It is well established that two titles are not substantially similar to each other where one title performs duties the other does not, see Civ. Serv. Employees Assn., Inc. Local 810 v. Clinton County Dept. of Pub. Health, 169 A.D.2d 970, 972 (3d Dept. 1991), and where a title has qualitatively different -19- responsibilities from its predecessor; Adelman v. Bahou, 85 A.D.2d 862, 864 (3d Dept. 1981) ("Changes [i.e., increases in job knowledge, expertise, and supervisory duties] have occurred which cumulatively have substantially increased the responsibilities, required quality, accountability and complexity of [the reclassified] supervisory positions"). See generally, Civ. Serve Employees Assn., Inc. v . State of N.Y. Unified Ct. Sys., 55 A.D.3d 1070, 1070-71(3d Dept. 2008) (upholding, as rational and not arbitrary, the CAJ's decision to allocate the Support Magistrate title to the JG-31 salary grade because the duties and responsibilities of that title were comparable to whose of the Court Attomey- Referee title which was allocated to the JG-31 salary grade); McGreevy v. Classification Rev. Bd. of the Unified Ct. Sys. of State of N.Y., 154 A.D.2d 678, 679 (2d Dept. 1989) (upholding the "CAJ's allocation of the position ... to a salary grade JG 31 on the basis of internal comparisons with other and predecessor legal titles having comparable levels of duties and responsibilities"), Iv denied, 75 N.Y.2d 707 (1990). Applying these principles, the CAJ properly treated the adjustment of petitioners' title under the January 2004 Order as a reclassification. Previously, the Court Officer (JG-16) title comprised an entry-level position for the former series, and authorized service in a fixed group of courts of limited jurisdiction -20- (R.61-63 and 85). Thereafter, the NYS Court Officer title was promotional, requiring for new officers two years of prior service in the newly-created trainee position. Moreover, the new title authorized service in all courts throughout the State, required familiarity with practices in courts of general jurisdiction, and required officers to be prepared to perform tasks -- including management of more jury trials, handling of press, security oversight of courts handling felonies and other highly contentious legal matters -- that were prevalent in courts of general jurisdiction (R.38-41 and 92). As Justice Richter noted in McKillop (9 Misc.3d at 641), "[n ]owhere is the change [of responsibilities in the new title series] more apparent than in the title standards for the line court officer title." Tellingly, case authority had unequivocally established that Court Officers and Senior Court Officers performed duties warranting separate titles well before January 2004. That question was specifically addressed in Cove v. Sise, 124 A.D.2d 486,487-488 (1st Dept. 1986) ("valid distinctions did exist injob requirements and duties [of Court Officers and Senior Court Officers], thus warranting allocation of different grade levels") affd, 71 N.Y.2d 910 (1988). Inasmuch as these positions were previously distinct as a matter of law, the conclusion that former Court Officers had substantially increased legal duties in the new, consolidated title after January 2004 is logically inescapable. -21- SCCOs' contrary claims are meritless. At bottom, they rely upon a single contention -- that individual court officers have not changed job duties after January 2004 (SCCO Main Brief pp. 9-10). But this argument rests on a legal misapprehension: it is not the daily routine of a particular officer which determines the appropriateness of a reclassification, but the full scope of the title's new responsibilities. See Gavigan v. McCoy, 37 N.Y.2d 548, 551 (1975) ("Determinative of what duties are properly performed within a given title are the job specifications for the title."); Judiciary Law § 39(8)(a) ("classification structure for non-judicial officers and employees [of the Unified Court System] shall provide for the classification of positions in accordance with duties required to be performed in title in these positions") (emphasis added); Cohen v. N.Y.S. Civ. Servo Commn., 90 A.D.2d 884, 886 (3d Dept. 1982) (upholding a reclassification even though assignment to the newly reclassified duties will happen "as the need occurs."); McKillop v. Lippman, supra, 9 Misc.3d at 639-640. In sum, petitioners have failed to meet their burden of demonstrating a clear right to have the promulgation of the NYS Court Officer title treated as a reallocation for salary purposes. See Assn. of SUITog. & Sup. Ct. Rptr. within New York City v. Bartlett, 40 N.Y.2d 571, 574 (1976); McKillop v. Lippman, supra, 9 Misc.3d at 638-639. -22- POINT THREE BECAUSE THE CHIEF ADMINISTRATIVE JUDGE HELD BROAD DISCRETIONARY AUTHORITY TO INCREASE PETITIONERS' SALARY GRADE RETROACTIVEL Y IN DECEMBER 2004, AND RATIONALLY EXERCISED THAT AUTHORITY, THE APPELLATE DIVISION ERRED IN NULLIFYING THAT RETROACTIVE ADJUSTMENT Albeit correctly dismissing petitioners' challenge to the January 2004 reclassification, the Appellate Division erred in its treatment of the December 2004 adjustment. It is a commonplace that the Chief Administrative Judge of the Courts has broad authority and discretion in the classification of civil service titles within the Unified Court System. Art. VI, § 28(b) of the N.Y.S. Constitution provides that the Chief Administrative Judge, appointed by the Chief Judge with the advice and consent of the administrative board of the courts, shall supervise the administration and operation of the unified court system, and in the exercise of such responsibility "shall have such powers and duties as shall be delegated to him by the chief judge and such additional powers and duties as may be provided by law." The Chief Judge has delegated numerous powers to the Chief Administrative Judge, including the authority to (22 N.Y.C.R.R. [Rules of the Chief Judge] § 80.1 [16]): -23- adopt classifications and allocate positions for nonjudicial officers and employees of the unified court system, and revise them when appropriate .... See also, 22 N.Y.C.R.R. (Rules of the Chief Judge) § 25.5(a) ("The Chief Administrator of the Courts shall have the power to classify and reclassify, and to allocate and reallocate to an appropriate salary grade, all positions in the classified service of the unified court system"); § 25.5(c) ("The effective date of any classification, reclassification or reallocation shall be such date as is determined by the Chief Administrator of the Courts"). Assessing the scope of the CAJ's administrative powers over employee title classifications in Corkum v. Bartlett, 46 N.Y.2d 242, 428-29 (1979), this Court reached an emphatic conclusion: In short, the Chief Judge's administrative powers are complete, and the Chief Administrator may employ them fully when and while and to the extent that they have been delegated to him. See also, Matter of Bellacosa v Classification Rev. Bd., 72 N.Y.2d 383, 391-392 ( 1988) (authority to adopt and revise classifications and allocations constitutes a "core administrative power" delegated exclusively to the CAJ). Courts have traditionally accorded wide deference to the CAJ in their review of the classification and allocation determinations. Assn. of Sec. to Justices of the Sup. Cts. and Surrog. Cts. v. Off. ofCt. Admin., 75 N.Y.2d 460, 476 (1990). A classification determination of the Chief Administrative Judge is -24- presumed to be reasonable, is subject to limited judicial review, and will not be disturbed unless the determination is wholly arbitrary or without any rational basis. Cove v. Sise, 71 N.Y.2d 910, 912 (1988); McGreevy v. Classification Rev. Bd. of the Unified Ct. Sys. of State of N.Y., 154 A.D.2d 678, 679 (2d Dept. 1989), Iv denied, 75 N.Y.2d 707 (1990); Matter of Bellacosa, supra, 72 N.Y.2d at 390. A reviewing court may not substitute its judgment for the judgment of the CAJ; if any rational basis exists for the challenged classification or allocation, the determination must be upheld, even though the court may differ from the body or officer with respect to the wisdom of the challenged determination. See, Donegan v. Nadell, 113 A.D.2d 676, 680-681 (2d Dept. 1986), citing Dillon v. Nassau County Civ. Servo Commn., 43 N.Y.2d 574,580 (1978) and Grossman v. Rankin, 43 N.Y.2d 493,503-504 (1977), rearg. denied, 44 N.Y.2d 733 (1978); Goodfellow v. Bahou, 92 A.D.2d 1085 (3d Dept.), Iv denied, 59 N.Y.2d 606 (1983).11 These principles compel the conclusion that the Chief Administrative Judge acted well within his discretion in issuing the December 2004 grade adjustment, retroactive to January 2004. The retroactive date was in accord with the broad lIThe rational basis standard of review is the lowest and least rigorous level of judicial review, representing the "paradigm of judicial restraint" and deference to administrative authority. See Affronti v. Crosson, 95 N.Y.2d 713, 719 (2001); Port Jefferson Health Care Facility v. Wing, 94 N.Y.2d 284,289-290 (1999). -25- delegation of authority of 22 N. Y .C.R.R. § 25 .5( c) (reclassifications effective on "such date as determined by the Chief Administrator of the Courts"). It had an obvious purpose: to enable NYS Court Officers, including petitioners, to receive the higher JG-18 salary for the entire period following the January 2004 reclassification -- in effect, to place them in exactly the position they would have occupied had the January 2004 adjustment been a two-grade increase. This retroactive application to the recent starting point of petitioners' new position was moderate in scope and patently rational. Moreover, all of the factors underlying the retroactive grade adjustment (including the fact that the former Senior Court Officer position held a JG-18 grade) were self-evident from the record and the history of the initial reclassification. In failing to acknowledge this original and continuing rationale, and to consider it under the highly deferential standard set forth in Cove and Dillon, the Appellate Division erred. * * * In sum, the Appellate Division properly determined that petitioners' challenge to the 2004 reclassification was untimely. Yet it erred in striking the retroactive application of the December 2004 adjustment to petitioners' salary grade. That error is not trivial. It would grant petitioners an unjustified financial windfall for a title adjustment rooted in a substantial change in their job duties. It -26- would result in a substantial and unwarranted budgetary burden upon the Unified Court System, at a time of scarce resources and tight fiscal constraint. Finally, it would impose a novel and inappropriate constraint upon the power and traditional broad discretion of the Chief Administrative Judge to fairly fashion the title standards and salary grades of Unified Court System employees, through the retroactive application of adjustments to recent reclassification determinations. This is a deeply unfortunate -- and an ironical -- treatment of the December 2004 determination, which was intended to benefit petitioners through the sua sponte exercise of the very powers they now seek to curb. We respectfully submit that this portion of the Appellate Division's holding cannot stand. -27- Dated: CONCLUSION THE DECISION AND ORDER OF THE APPELLA TE DIVISION SHOULD BE MODIFIED, AND THE PETITION SHOULD BE DISMISSED New York, New York October 24,2013 Respectfully submitted, JOHN W. McCONNELL, Counsel Office of Court Administration 25 Beaver Street - Illh Floor New York, New York 10004 (212) 428-2150 Attorney for Respondent-Appellant By: &-.J~ LEE ALAN ADLERSTEIN LEE ALAN ADLERSTEIN PEDRO MORALES Of Counsel -28-