Loren E. McMaster for Plaintiffs and Respondents. David I. Kelly, Douglas L. Kendrick, Anthony T. Caso, Sharon L. Browne, Francis F. Chin, Nossaman, Guthner, Knox & Elliott, Stephen N. Roberts, Stanley S. Taylor, Patricia Lee Connors, Robert D. Thornton, Kennedy & Wasserman, Wendel, Rosen, Black, Dean & Levitan, R. Zachary Wasserman, Bertha Ontiveros, Best, Best & Krieger, Steven C. DeBaun, Zumbrun & Findley, Ronald A. Zumbrun, John H. Findley, Woodruff, Spradlin & Smart, Kennard R. Smart, Jr., M. Lois Bobak and Jason E. Resnick as Amici Curiae on behalf of Defendants and Appellants. (3) Contrary to Caltrans's contention, new section 14130.1, characterizing seismic retrofitting services as a "short-term workload demand," fails to constitute adequate justification for private contracting because it fails to consider the civil service staff available and obtainable to perform the work. Plaintiffs observe that this "finding" is both factually unsupported and irrational, as every highway project could be deemed "short term" in the sense that it has a finite term lasting until it is completed. (Salazar v. Eastin (1995) 9 Cal. 4th 566] privatization. Responding to the trial court's injunction and orders, Caltrans took some steps to minimize and phase out private contracting during fiscal year 1993-1994. (Amwest, supra, 11 Cal.4th. The parties agree that the Legislature has the authority to amend Proposition 103 without voter approval, but only to further the purposes of the initiative. 433, 13, subd. (Id. Caltrans identified substantial amounts of seismic retrofitting work and reimbursed work for local agencies as eligible for private contracting in fiscal year 1993-1994. v. Williams (1970) 7 Cal. I disagree. (c); see Sts. opn. " (Amwest Surety Ins. Moreover, an Assembly Transportation Committee report submitted to the Legislature before it adopted Chapter 433 acknowledged that questions existed concerning the constitutionality of the legislation. Control v. Superior Court (1968) 268 Cal. Sess.) Moreover, even assuming that non-First Amendment areas exist in which application of a lesser standard of deference might be appropriate, this is not one of them. However, the constitutionality of a statute cannot turn on "the vagaries of litigation tactics." Amazing: The Rebuilding of the MacArthur Maze is a half-hour television special which tells the remarkable story of the fiery collapse and rebuilding (in only 26 days) of a key connector in the Bay Area's MacArthur Maze, where three major freeways meet just east of the San Francisco-Oakland Bay Bridge. par. Introduction. Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal. Two years ago, COVID-19 prodded the state of California to launch a massive telework program, the most significant operational change to public service since the adoption of . The judiciary, in reviewing statutes enacted by the Legislature, may not undertake to evaluate the wisdom of the policies embodied in such legislation; absent a constitutional prohibition, the choice among competing policy considerations in enacting laws is a legislative function. ), Relying on CSEA, supra, 199 Cal.App.3d at pages 851 through 853, the Court of Appeal majority reasoned that the Legislature properly could find that, under present conditions, certain highway construction projects, even though existing state functions, cannot be performed "adequately, competently or satisfactorily" by state employees, but can be performed "efficiently and economically" if privately contracted. 687, 696 [124 P. 427]; Barenfeld v. City of Los Angeles (1984) 162 Cal. Rptr. 2d 21, 890 P.2d 43] (Salazar).) Similar experimentation may be permissible under article VII, if justified by considerations of economy and efficiency and if otherwise consistent with applicable civil service requirements, despite the use of state funding. Dist. 4th 585, illustrates, changing conditions and California's growing transportation needs justify a "liberal, practical common-sense construction" (Amador Valley Joint Union High Sch. 433, 13.) There is also anFE waiver flowchartdepicting the requirements. Emp. Nonetheless, we affirm the Legislature's interpretive efforts unless they are disclosed to be unreasonable or clearly inconsistent with the express language or clear import of the Constitution." Professional Scientific. & Hy. CSEA opined that the voters who enacted the constitutional civil service provision did not intend to impose a system devoid of all considerations of fiscal responsibility and economy in favor of "an infinitely expanding public payroll," and agreed that "[t]he goal of maintaining the civil service must be balanced with the goal of a fiscally responsible state government." I further conclude that Chapter 433 does not violate article VII of the California Constitution (article VII) and is constitutional on its face. Eric M. Moberg v. Contra Costa Community College District, Folsom-Cordova Education Association v. Folsom-Cordova Unified School District, Victor Valley Teachers Association v. Victor Valley Union High School District, Jennifer Koontz v. Pasadena Area Community College District, Service Employees International Union Local 1021 v. County of Alameda, University Professional and Technical Employees CWA Local 9119 v. Regents of the University of California, California Federation of Interpreters, Local 39000 TNG-CWA v. Orange County Superior Court, David Southcott v. Julian-Cuyamaca Fire Protection District, California Federation of Interpreters, Local 39000 TNG-CWA v. Region 3 Court Interpreter Employment Relations Committee, C. L. Felicijan & W. Hetman v. Santa Ana Educators Association, American Federation of State, County & Municipal Employees Local 3947 v. City of Compton, Philip Stephen Fay v. Tahoe-Truckee Sanitation Agency, Service Employees International Union Local 1021 v. Alameda Health System, California School Employees Association-Chapter 348 v. South Whittier School District, Union of American Physicians & Dentists v. State of California (California Correctional Health Care Services), Christine L. Felicijan v. Santa Ana Unified School District, Woodville Teachers Association, CTA/NEA v. Woodville Union School District, Terrell Emanuel Turner v. Long Beach Unified School District, Joseph E. Knighten, Sr. v. Painters & Allied Trades, District Council 16, International Brotherhood of Electrical Workers Local 465 v. Imperial Irrigation District, University Professional & Technical Employees Communication Workers of America Local 9119 v. Butte-Glenn Community College District, Grossmont Cuyamaca Community College District Administrators Association v. Grossmont-Cuyamaca Community College District, Newport-Mesa American Federation of Teachers, Local 1794 v. Newport-Mesa Unified School District, Santa Paula Police Officers Association v. City of Santa Paula, Service Employees International Union Local 1000 v. State of California (Department of Corrections and Rehabilitation and California Correctional Health Care Services), Coachella Valley Water District Employee Association v. Coachella Valley Water District, Service Employees International Union, Local 521 v. Kern County Hospital Authority, International Union of Operating Engineers Local 501 v. State of California (Department of Transportation), International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. City & County of San Francisco, Service Employees International Union Local 1021 v. City & County of San Francisco. 3d 208, 244 [149 Cal. 851-853.). Rptr. (1978) 90 Wn.2d 698 [585 P.2d 474, 475]; see also Kaplan, The Law of Civil Service (1958) pp. In the majority's view, "The burden is not on Caltrans to prove the facts support the legislative determination but on plaintiffs, i.e. 3d 575, 591 [131 Cal. Sess.) ). opn., ante, at p. According to Caltrans, former article XXIV was simply intended to restrict appointments and promotions in state service except on the basis of merit and competitive examination, in order to avoid favoritism and the "spoils system" in selecting among existing state employees. VII, 1, subd. 1989, ch. Even were we to conclude, for purposes of argument, that Chapter 433 contains express or implied findings to the effect that Caltrans is unable to perform the services in question "adequately and competently" through civil service, or that private contracting has resulted and will result in substantial cost savings or other significant advantages to the state, these findings, standing alone and without any apparent evidentiary or empirical support, would be insufficient to supplant the trial court's express findings to the contrary. 4th 563] injunction. (a)(2)), and on legislative encouragement of timely private contracting for state highway projects to generate maximum employment and business opportunities ( 14130, subd. Co. v. Wilson (1995) 11 Cal. 3d 903, 910 [226 Cal. * concurring. <br> Please find attached a copy of . Nonetheless, such intent must be considered in assessing the constitutional validity of the enactment. (People v. Superior Court (1937) 10 Cal. I fail to see how this threatens the civil service system or runs afoul of article VII, which was never intended to require an ever-expanding government payroll. 3d 840, 844 [245 Cal. (Maj. (See Salazar, supra, 9 Cal.4th at p. (Delaney v. Lowery (1944) 25 Cal. ReviewBusiness and Professions Code section 6759for additional information regarding comity. 98-99; Becker, With Whose Hands: Privatization, Public Employment, and Democracy (1988) 6 Yale L. & Pol'y Rev. [15 Cal. (Sen. Transportation Com., Rep. on Sen. Bill No. For instance, in Mills v. Superior Court, supra, 42 Cal. In our view, none of the express or implied provisions of Chapter 433 affords a legitimate basis for disregarding the constitutional restriction on private contracting. Accordingly, as the trial court found in its April 19, 1994, order, Caltrans altered its contract projections for fiscal year 1993-1994 and issued new guidelines revising its earlier plan to minimize its private contracting. 851-853). Habtamu has successfully . Article III, section 3 of the California Constitution states: "The powers of state government are legislative, executive, and judicial. Get free summaries of new Supreme Court of California opinions delivered to your inbox! (Professional Engineers, supra, 13 Cal.App.4th at p. 847.) 114, 708 P.2d 693] [legislation must be upheld unless conflict with constitutional provision is "clear and unquestionable"].) at p. [15 Cal. Such interrelationship, of course, lies at the heart of the constitutional theory of 'checks and balances' that the separation of powers doctrine is intended to serve. Fed., etc. 548-550.) ), The majority cite Amwest as supporting greater judicial latitude regarding legislative findings, noting that even though legislative findings generally will be upheld, "we also must enforce the provisions of our Constitution and 'may not lightly disregard or blink at a clear constitutional mandate.' Evidence (3d ed. We conclude that Riley and its progeny are consistent with article VII's civil service mandate. As this court stated 60 years ago, "judicial decisions abound with declarations to the effect that all presumptions and intendments favor the validity of statutes; that mere doubt by the judicial branch of the government as to the validity of a statute will not afford a sufficient reason for a judicial declaration of its invalidity, but that statutes must be upheld as constitutional unless their invalidity clearly, positively, and unmistakably appears." [selection of engineers must be based on demonstrated competence, professional qualifications, and price]; Cal. 4th 576] or disregarded by the courts, unless the legislative decision is clearly and palpably wrong and the error appears beyond reasonable doubt from facts or evidence which cannot be controverted, and of which the courts may properly take notice.' Caring for the world, one person at a time has inspired and united the people . PECG is committed to your success. ( 14130, subd. Board staff is diligently working to process all applications as expeditiously as possible. fn. Clickhereto learn more. (1989) 49 Cal. Thus, an August 1993 report of the Assembly Committee on Transportation states that although "existing law" requires Caltrans to show the inadequacy of existing and recruitable staff to complete project development, Chapter 433 "would specify that Caltrans is not obligated to meet that or any other test relative to hiring to assimilation and productive use of civil service employees, and instead, can contract out at the discretion of the director." ), Article VII also creates the State Personnel Board ( 2), to which enforcement and administration of the civil service laws are delegated ( 3), and exempts from the civil service certain positions that are not pertinent here ( 4). The court concluded that Chapter 433 contains sufficient pronouncements, directions, and safeguards to satisfy plaintiffs' earlier objections based on the private contracting restriction of article VII. Sess.) 2023 National Society of Professional Engineers | 1420 King St . fn. We also observe that, by its very nature, the civil service mandate does not readily lend itself to broad legislative exemptions. According to the Court of Appeal majority, nothing in the record supports a conclusion that the legislative findings were clearly and palpably wrong. Caltrans points to no new legal developments, such as scholarly criticism or commentary, or contrary case law in other states, that would cast doubt on the continued vitality of Riley and its progeny. 4th 584] highly and technically skilled in his science or profession is one which may properly be made without competitive bidding.' Based on that premise, the trial court found Chapter 433 unconstitutional and concluded, therefore, that Chapter 433 could not then be considered a change in circumstances justifying modification of the 1990 injunction. Easy 1-Click Apply (DUNHILL PROFESSIONAL SEARCH & GOVERNMENT SOLUTIONS) System Engineer Lead - Remote job in Fairfax at Dunhill Professional Search job in Dallas, TX. Founded in 1962, PECG represents 14,000 state-employed engineers and related professionals responsible for designing and inspecting California's infrastructure, improving air and water quality, and developing clean energy and green technology. The majority determine that Chapter 433 does not contain findings that would excuse noncompliance with the civil service mandate or afford a legitimate basis for disregarding the constitutional restriction on private contracting. (Gov. at p. The court may not simply rely on its finding preceding enactment of Chapter 433 that any inadequacy of staff was caused by a policy and practice of maintaining staff at an artificially low level. 490.). (Pacific Legal Foundation v. Brown (1981) 29 Cal. 1993, ch. [Caltrans] is not required to staff at a level to provide services for other agencies." (Pacific Legal Foundation v. Brown, supra, 29 Cal.3d at p. 2d 176], Caltrans sought to enter into contracts with private firms to maintain roadside rest areas. (D'Amico v. Board of Medical Examiners (1974) 11 Cal. ), Finally, in Professional Engineers v. Department of Transportation (1993) 13 Cal. Riley rejected the argument that the services independent contractors perform are beyond the civil service mandate's reach, stating that "[a]ny other construction of the constitutional provision would have the effect of weakening, if not destroying, the purpose and effect of the [civil service] provision." 4.) The department is not required to staff to an internal level that matches its ability to assimilate and productively use new staff.". Having reviewed the general constitutional, statutory, and decisional framework, we return to the facts of this case. A related provision, section 14130.3, indicates that one purpose of section 14137 was to reinstate contracts awarded to minorities, women, or disabled veterans, but section 14137 [15 Cal. FN *. Article VII has been judicially interpreted as a restriction on contracting out state work to the private sector. opn., ante, at p. 569, citing Spiritual Psychic Science Church v. City of Azusa, supra, 39 Cal.3d at p. ), Additionally, the Legislature added sections 14130.1, providing that engineering services needed to complete the seismic safety retrofit program "shall be considered a short-term workload demand" ( 14130.1, subd. Craft and Maintenance. At issue was whether a subsequently enacted statute furthered the purposes of the act. (Dis. This obligation is to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence. To accomplish this, PECG supports and sponsors programs that promote Science, Technology, Engineering and Mathematics (STEM). It would appear the majority sought to find the legislation unconstitutional, whereas long-standing precedent requires just the opposite-that the court attempt to uphold the enactment. (b); see Cal. Caltrans did not appeal that judgment, which is now final. 2d 162, 165-167; Michigan State Employees v. Civil Service Com'n (1985) 141 Mich.App. ), Second, contrary to the majority's suggestion, the experimentation at issue in Professional Engineers did not require the "total" withdrawal of a state function. 589. The Board regulates the practices of engineering and land surveying in the state of California by evaluating the experience and administering examinations to prospective licensees and by enforcing the laws regulating licensed professional engineers and land surveyors. Process Flowcharts for Scheduling Exams and Applying for Licensure, Applying for Licensure as aProfessional Engineer, How to Use BPELSG Connect to Complete and Submit a PE Application, Work Experience Engagement/Reference Instructions for Professional Engineer Applicants, Applying for Licensure as aCivil Engineer, How to Use BPELSG Connect to Complete and Submit a PE Application, Work Experience Engagement/Reference Instructions for Professional Engineer Applicants, Applying for Licensure as aTraffic Engineer. Rptr. 283, 816 P.2d 1309] [rejecting federal constitutional challenge to term limits initiative and finding no need for initiative's defenders to empirically demonstrate that the initiative will accomplish each of its objectives]; Buhl v. Hannigan (1993) 16 Cal. as amended June 24, 1993, pp. opn., ante, at p. (See, e.g., Amwest Surety Ins. opn., ante, at p. 569), the majority nonetheless decide that the ordinary deference courts owe to legislative action "vanishes" when "constitutionally protected rights" are threatened and that courts are not foreclosed from exercising "independent judgment of the facts" bearing on an issue of constitutional law (ibid.). 1515 S Street, North Building, Suite 500 Secretary, Government Operations Agency Yolanda Richardson Sacramento, CA 95811 Director . (Gov. It is settled that "constitutional and other enactments must receive a liberal, practical common-sense construction which will meet changed conditions and the growing needs of the people." (c). Yet it is paradoxical for the majority to acknowledge that the results of the cost-comparison study mandated by Chapter 433 (which the majority concede was intended to help determine the economies of private contracting) "could well assist" Caltrans in making such a showing, while at the same time holding that Caltrans is not entitled to relief before such a study is performed. [Citation.]" The trial court stated: "The Court concludes that Chapter 433 of the Statutes of 1993 is unconstitutional in that it authorizes defendants to contract with private consultants for the performance of project development services without a factual showing that the contracts are permissible under article VII. Accordingly, the propriety of the trial court's action in taking judicial notice may be considered on appeal despite the lack of objection in the trial court. In my view, the majority err by presuming not that the Legislature intended its enactment to be consistent with the purposes of article VII, but that it intended its enactment as a way to circumvent the limitations which have been judicially imposed to implement that constitutional mandate. v. D.O.H. 2d 365, 371 [310 P.2d 7] (apportionment of workers' compensation award); Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal. 615. (See 14130, 14130.1, subd. The constitutionality of Chapter 433 is a question of law; hence, "we are not bound by evidence presented on the question in the trial court. 3d 180, 186 [185 Cal. 1-2; Sen. Appropriations Com., Fiscal Summary of Sen. Bill. Headquarters. The record indicated, however, that Caltrans had assumed responsibility for this work since 1963, so no "new state functions" were involved that might have justified an exception to the implied civil service mandate. 3d 692, 699 [170 Cal. [15 Cal. It recounts the progress, delays, setbacks, and politics during the design and construction of a new, safe bridge to re-complete the connection across the Bay between San Francisco and Oakland. Although the trial court stated that section 14137 raises a "serious question" about a violation of the separation of powers doctrine, it is clear that the trial court's decision did not rest on this point. (California State Employees' Assn. 3. This court had to determine the standard of review applicable to that question. The documents and information submitted with the application must substantiate that the requirements have been met.