The Appellate Division, First Department, needed a year-end cash infusion after replacing 44 of 46 employees who took early retirement last fall.

The Office of Court Administration’s budget office averted a projected $400,000 shortfall by March 31, the end of the 2010-11 fiscal year, by transferring surplus funds from the Second Department.

Presiding Justice Luis A. Gonzalez of the First Department took responsibility for the decision to fill the vacated positions.

“We are a busy court and took a big hit” when 46 employees accepted the court system’s early retirement offers in November, he said in an interview yesterday. “I made the decision that we needed the personnel to serve the public.”

Justice Gonzalez said he had never received “a memorandum or oral communication” limiting his authority to hire needed personnel.

“I am a team player, and had I received any intimation about not being able to fill those positions, I definitely would have gone along with it,” he said.

There are about 300 non-judicial employees in the First Department.

The OCA confirmed that among those hired was Vivian Gonzalez, whom the New York Post reported is Justice Gonzalez’ former wife, on Dec. 23, 2010, as an associate appellate court clerk at an annual salary of $65,000.

Judge Lawrence K. Marks, the court system’s administrative director, sent a memorandum in July 2010 to district executives throughout the state and chief clerks in New York City advising that in order for the court to realize savings through the early retirement program “the number of positions that can be refilled and timing of refilling the positions is critical.” Ultimately, 1,560 of the court system’s 14,200 non-judicial court employees took early retirement.

Judge Marks in September told the Law Journal that the court system expected to save about $10 million through early retirements, and that priority would be given to filling courtroom positions: court clerks, officers and stenographers. Hiring for other positions, such as analysts and middle managers, he said, could be delayed or the jobs could remain unfilled (NYLJ, Sept. 28, 2010).

Chief Administrative Judge Ann Pfau said yesterday that under the state Constitution, the four Appellate Division departments retain responsibility for running “their own shops” and remain independent of the OCA’s jurisdiction, which is limited to trial courts.

On the other hand, she said, it was widely known that, as a condition of being able to participate in the statewide early retirement program, the courts were required to realize savings as a condition of participating.

“Every court” throughout the state was expected to participate, Judge Pfau said.

Susanah Rojas, the First Department’s clerk, said it was unclear why hiring replacements ended up driving the First Department’s expenses over budget.

“Even when people received promotions to fill vacancies,” she said, “their increased salaries were not anywhere near what was being earned by the people who left.”

Sources suggested that one reason the First Department may have come up short is that it replaced retirees shortly after their departures in November while they were still owed pay for various reasons, such as unused annual leave.

OCA reported that in contrast to the First Department, the Second Department filled 24 of 39 positions left vacant by the early retirements and the Fourth Department filled seven of 12. The Third Department, during the last four months of the last fiscal year, hired 15 new workers, while it had only lost 13 to early retirements.

Judge Pfau said those figures only reflect the fact that each department is “very individualized,” with different case loads and a mix in the types of workers who took early retirement.

The decision to fill so many vacancies makes the First Department more vulnerable to layoffs in the current fiscal year, Judge Pfau said. She explained that the court system must make hundreds of layoffs to achieve the additional $70 million in savings required in the 2010-11 budget adopted by the Legislature and Governor Andrew M. Cuomo (NYLJ. April 8). The court system must trim a total of $170 million.

In calculating the level of layoffs each court must absorb, she said, courts are given greater credit the larger the number of unfilled vacancies.

In January, as the state’s financial situation grew more perilous, the OCA imposed a hiring freeze on the 900 positions that remained open as a result of the job freeze.