
    In the Matter of Edna Bowne et al., Respondents, v County of Nassau et al., Appellants, et al., Respondent. In the Matter of Helen Colvin et al., Respondents, v County of Nassau et al., Appellants, et al., Respondent. In the Matter of Myron Di Pasquale et al., Respondents, v County of Nassau et al., Appellants, et al., Respondent.
    Argued March 25, 1975;
    decided June 9, 1975
    
      John F O’Shaughnessy, County Attorney (William S. Nor-den, Natale C. Tedone and James N. Gallagher of counsel), for appellants.
    I. Petitioners have no standing to challenge the constitutionality of chapter 387 of the Laws of 1971. (Matter of Cullum v O’Mara, 43 AD2d 140, affd sub nom. Matter of 
      
      Taylor v Sise, 33 NY2d 357; Matter of Posner v Rockefeller, 75 Misc 2d 875, 43 AD2d 817, 26 NY2d 970; Hidley v Rockefeller, 28 NY2d 439; St. Clair v Yonkers Raceway, 13 NY2d 72, 375 US 970; Matter of Burke v Sugarman, 35 NY2d 39.) II. The Nassau County Department of Probation is not part of the unified court system of the State of New York. (Matter of Mangano v City of New York, 34 NY2d 135.) III. The transfer of jurisdiction of the Probation Department of Nassau County from the judicial to the executive branch of government by the New York State Legislature, pursuant to chapter 387 of the Laws of 1971, is constitutional and does not violate the doctrine of separation of powers. (Farrington v Pinckney, 1 NY2d 74; Matter of Cullum v O’Mara, 43 AD2d 140, affd sub nom. Matter of Taylor v Sise, 33 NY2d 357; Matter of McAneny v Board of Estimate & Apportionment of City of N. Y., 232 NY 377; Matter of Ricker v Village of Hempstead, 290 NY 1; Matter of Trustees of Vil. of Saratoga Springs v Saratoga Gas, Elec. Light & Power Co., 191 NY 123; People v Tremaine, 252 NY 27; Matter of Richardson, 247 NY 401; Arverne Bay Constr. Co. v Thatcher, 278 NY 222; Schieffelin v Goldsmith, 253 NY 243; Matter of Barton Trucking Corp. v O’Connell, 7 AD2d 36.) IV. The Nassau County Civil Service Commission is not barred by article VI of the Constitution of New York State from administering civil service in the Nassau County Probation Department. (Matter of Crowley v Milone, 55 Misc 2d 660, 31 AD2d 928; McCoy v Helsby, 28 NY2d 790.) V. Chapter 387 of the Laws of 1971 expressly repeals section 255-i of the Executive Law enacted by chapter 545 of the Laws of 1971. (People v Friedman, 302 NY 75; People v Kupprat, 6 NY2d 88; Matter of Hogan v Culkin, 18 NY2d 330; Motor Vehicle Acc. Ind. Corp. v Eisenberg, 18 NY2d 1; Loew v Interlake Iron Corp., 183 Misc 303; People ex rel. Chadbourne v Voorhis, 206 App Div 374, 236 NY 437.) VI. Payment of back pay to the Bowne petitioners, who were properly terminated on May 17, 1973, violates section 1 of article VIII (§ 1) of the New York State Constitution. (O’Hara v City of New York, 46 App Div 518, 167 NY 567, 28 Misc 258; Huffmire v City of Brooklyn, 162 NY 584; Matter of Rindone v Marsh, 183 Misc 10; Matter of Mullane v McKenzie, 269 NY 369, 270 NY 563.) VII. Petitioners-respondents were provisional employees under the unified court system and have continued as provisional employees since the enactment of chapter 387 of the Laws of 1971. (Matter of Fornara v Schroeder, 261 NY 363; Matter of Sandford v Finegan, 276 NY 70.) VIII. The change in petitioners-respondents’ job titles was not a reclassification within the Rules and Regulations of the Nassau County Civil Service Commission. IX. A review by the court of the change in petitioners-respondents’ job titles is barred by the four-month Statute of Limitations contained in CPLR 217. (Matter of Miller v Bromley, 184 Misc 676; Matter of Weiss v Bromley, 185 Misc 7.)
    
      William D. Friedman for respondents.
    I. The executive branch by legislative act cannot constitutionally exercise the powers of appointment, classification ór termination of personnel of the Department of Probation of Nassau County which is in the unified court system. (Crowley v Milone, 55 Misc 2d 660, 31 AD2d 928; Szymborski v County of Onondaga, 62 Misc 2d 179; Matter of Kleinman v McCoy, 19 NY2d 292; Matter of Brown-Lipe Gear Co. v Ferris, 275 NY 418; Matter of Wendell v Lavin, 246 NY 115; People ex rel. Town of Pelham v Village of Pelham, 215 NY 374; People ex rel. Metropolitan St. Ry. Co. v State Bd. of Tax Comrs., 174 NY 417; Mangano v City of New York, 34 NY2d 135; Matter of Frey v McCoy, 35 AD2d 1029; Association for Protection of Adirondacks v MacDonald, 253 NY 234.) II. The executive branch cannot by legislative act constitutionally exercise the powers of appointment, classification or termination of personnel of the Department of Probation of Nassau County even if such department is not in the unified court system. (Lanning v Carpenter, 20 NY 447; Matter of Anonymous, 21 AD2d 48; Devoy v City of New York, 36 NY 449; People ex rel. Swift v Luce, 204 NY 478; Decker v Canzoneri, 256 App Div 68; Popfinger v Yutte, 102 NY 39; Matter of Wendell v Lavin, 246 NY 115; Matter of Chase v Falk, 8 AD2d 655, 7 NY2d 817; Matter of Mendelson v Finegan, 253 App Div 709, affd sub nom. Mendelson v Keen, 278 NY 568; Town of Stony Point v McDonnell, 70 Misc 2d 490.) III. The personnel of the Department of Probation of Nassau County employed by appointment on or before June 7, 1971 and still so employed on September 1, 1971 cannot have their right of employment affected by the enactment of chapter 387 of the Laws of 1971 except to be frozen in. (Matter of Fornara v Schroeder, 261 NY 363; Matter of Goldstein v Lang, 16 NY2d 735; McCoy v Helsby, 28 NY2d 790; Matter of Sandford v Finegan, 276 NY 70.) IV. The personnel of the Department of Probation of Nassau County have their appointments, classifications and terminations governed by section 255-i of the Executive Law as enacted by section 10 of chapter 545 of the Laws of 1971 and not by the provisions of section 1 of chapter 387 of the Laws of 1971. (Commissioners of State Ins. Fund v H. W.E. Realty Co. of Brooklyn, 188 Misc 111; Abate v Mundt, 25 NY2d 309, 403 US 182; Matter of Carter v Board of Supervisors of County of Nassau, 25 NY2d 420; Society of N. Y. Hosp. v Johnson, 9 Misc 2d 73, 5 AD2d 552, 5 NY2d 102; Mongeon v People, 55 NY 613; Matter of Corrigan v Joseph, 304 NY 172; Foy v Schecter, 1 NY2d 604; People ex rel. Chadbourne v Voorhis, 236 NY 437; People ex rel. Pierce v Howe, 218 App Div 273; People ex rel. Navano v Van Nort, 64 Barb 205.) V. The letter of October, 1972 notifying petitioners of a change in their titles was in violation of section 2 of chapter 387 of the Laws of 1971. (Roistacher v McCoy, 32 NY2d 479.) VI. The letter of October, 1972 was a reclassification of petitioners’ positions. (Matter of Ainsberg v McCoy, 26 NY2d 56; Matter of Roistacher v McCoy, 32 NY2d 479.) VII. The procedure used for the title change and reclassification of petitioners’ positions was unlawful. (Matter of Millis v Young, 37 AD2d 532, 29 NY2d 778; Matter of Chiaverini v Murray, 237 App Div 856; Matter of De Salvo v Murray, 237 App Div 857, 262 NY 573; Matter of Baldwin v McCoy, 35 AD2d 1059.) VIII. Petitioners are not barred by the Statute of Limitations from raising the issue of the legality of their title change and reclassification. (Village of Williston Park v Israel, 191 Misc 6, 301 NY 713; Foy v Schecter, 1 NY2d 604; Matter of Powers v La Guardia, 181 Misc 624, 267 App Div 807, 292 NY 695; Matter of Corrigan v Joseph, 304 NY 172.) IX. Petitioners whose employment was terminated are entitled to back pay from date of termination. (Matter of Mullane v McKenzie, 269 NY 369.) X. Petitioners have standing to bring this action. (Matter of Burke v Sugarman, 35 NY2d 39.)
    
      Louis J. Lefkowitz, Attorney-General (Jesse J. Fine and Samuel A. Hirshowitz of counsel), in his statutory capacity under section 71 of the Executive Law.
    I. Petitioners do not have standing to challenge the constitutionality of chapter 387 of the Laws of 1971. II. The Legislature had the power to transfer the probation service to the county government. (Matter of Briguglio v New York State Bd. of Parole, 24 NY2d 21.)
   Per Curiam.

Section 256 of the Executive Law (L 1971, ch 387) places the Probation Department of Nassau County under the supervision and control of the county executive. Prior to the effective date of this statute, this power had been exercised by the judiciary originally on the local level and later by the Judicial Conference. The petitioners, employees of the department, claim that the current statute violates article VI of the State Constitution. The question is whether the Probation Department is constitutionally part of the unified court system as defined in section 28 of article VI of the Constitution. Special Term held that it was not, and the Appellate Division reversed. We have concluded that the order of Special Term should be reinstated.

The only explicit reference to the Probation Department, in the Constitution is found in section 5 of article XVII, which empowers the Legislature to "provide for the maintenance and support of institutions for the detention of persons charged with or convicted of crime and for systems of probation and parole of persons convicted of crime.” The judiciary’s past authority over the Nassau County Probation Department derived solely from legislation (Code Crim Pro, § 938-d) which vested in the Judges of the County and Family Court power to appoint directors of probation and certify payrolls for employees of the Probation Department. Then, in 1962, the Constitution was amended to provide for a unified court system (NY Const, art VI). Central to constitutional reorganization of the court system was the concept that the general supervisory powers formerly granted to individual courts should pass to the Administrative Board of the Judicial Conference (NY Const, art VI, § 28). Thereafter we recognized that the Probation Departments were subject to the supervision and control of the board rather than the individual courts designated by statute (Matter of Kleinman v McCoy, 19 NY2d 292; McCoy v Helsby, 28 NY2d 790). In neither of these cases however did we consider or decide whether the Probation Department is for all purpose constitutionally a part of the unified court system.

In Kleinman (p 295) the New York City Labor Department had certified the collective bargaining agent for all probation officer trainees and probation officers employed in the courts in New York City. This was done pursuant to an agreement between the Administrative Board and the city, and the petitioners claimed that this was an invalid delegation of the board’s constitutional power of "administrative supervision” of the "court system”. We held that it was not since "[i]n collective bargaining with court personnel on salaries and other money benefits, where the City of New York is to pay the cost, both the board and the city are jointly concerned in any negotiation.” By approaching the issue in this matter we affirmed the board’s constitutional power to administer the Probation Department as part of the "court system” of which it was legislatively then a part.

This does not mean however that these agencies are expressly, or even necessarily, an integral part of the unified court system. Since their relationship to the administration of justice itself is although often intimate, always collateral, it is reasonable that their place in the judicial scheme should depend solely in legislation.

Our later decision in McCoy v Helsby (supra, p 791) is not to the contrary. There the question was whether the application of the Taylor Law to Probation Department employees conflicted with the board’s supervisory powers over the court system. Although we upheld the application of the law to nonjudicial employees as a "reasonable limitation” on the "exercise of this power” we took occasion to note that "It may be that some future legislative action would so deeply cut at the basic fibre of administrative power as to be violative of section 28 of article VI of the Constitution.” In stating this caveat we simply meant to indicate that so long as these agencies performed functions in the court system, the power to supervise and control those functions was in the board and might not be abridged by legislation.

In sum, the Constitution grants to the Legislature the power to maintain and support Probation Departments. The establishment of the unified court system did not necessarily affect this grant of power any more than it impaired the legislative power to build courthouses, staff them with nonjudicial employees, or supply them with facilities, supplies, or building maintenance. In the final analysis judicial control over the regulation of employment in those agencies depended solely on existing statutory authority which the Legislature was free to withdraw (see, e.g., City of New York v Maltbie, 274 NY 90, 97). Thus by enacting chapter 387 of the Laws of 1971 (now Executive Law, § 256) which transferred jurisdiction over the civil service in the Probation Department to the county executives, the Legislature did not violate article VI of the State Constitution.

The orders of the Appellate Division should be reversed and the judgments of Special Term reinstated.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in Per Curiam opinion.

Orders reversed, without costs, and the judgments of Supreme Court, Nassau County, reinstated.-  