2d 644, 652 .) Again, in Delaney v. Lowery (1944) 25 Cal. There is aQualification Flowchartdepicting the requirements. As previously explained, the Legislature's factual determinations may be set aside or disregarded by the courts only if the fact of error " 'appears beyond reasonable doubt from facts or evidence which cannot be controverted, and of which the courts may properly take notice.' (a)(5)), state highway project development is not a "new state function" within the exception recognized by Williams, supra, 7 Cal.App.3d at page 397. Mircom Group is among Canada's most successful intelligent building . fn. Although not explicitly stated in the act, it is apparent that implicit in Chapter 433 is a provision that contracting out must make economic sense-it must be cheaper than using civil service-and that the discretion of the Director of Transportation (Director) to contract out must be exercised toward that end. (a)(4). This obligation to exercise independent judgment when First Amendment rights are implicated is not a license to reweigh the evidence de novo, or to replace Congress' factual predictions with our own. Moreover, the Legislature heard from those knowledgeable on the issue of contracting fn. Founded 1962. And as indicated previously, it is contemplated that these statutory provisions are to remain in effect only until January 1, 1998. fn. Co. v. Deukmejian, supra, 48 Cal.3d at page 822, footnote 15 (attack on facial validity of initiative measure); Metromedia, Inc. v. City of San Diego (1982) 32 Cal. 4th 550] promote efficiency and economy' " in state government, and "to eliminate the 'spoils system' of political patronage." California pecg.org Joined June 2009. . Caltrans, adopting the Court of Appeal majority's similar argument, contends that " the legislative findings themselves are proof " of the propriety of private contracting sufficient to sustain the new legislation, and that the trial court's own contrary findings "are trumped by more recent legislative findings of fact," which "have to be respected unless palpably wrong." Rptr. omitted. [Citation.]" Moreover, the contracting authorized by Chapter 433 will not encourage a return to the spoils system of political patronage. ( 14130, subd. As this court recently explained, "Although the language of California Constitution article III, section 3, may suggest a sharp demarcation between the operations of the three branches of government, California decisions long have recognized that, in reality, the separation of powers doctrine ' "does not mean that the three departments of our government are not in many respects mutually dependent" ' [citation], or that the actions of one branch may not significantly affect those of another branch. 3d 348, 388-389 [261 Cal. As the Court of Appeal dissent notes, that legislative purpose may be exemplary, but it does not afford a proper ground for noncompliance with the civil service mandate. Com. Const., former art. 455 Capitol Mall, Suite 501, Sacramento, CA 95814. 433 (Reg. State Workforce - Bargaining Unit Profiles - California This position does not require Senate confirmation and the compensation is $275,004. (Ch. Daniel E. Lungren, Attorney General, Floyd D. Shimomura, Assistant Attorney General, Linda A. Cabatic and Daniel G. Stone, Deputy Attorneys General, William M. McMillan, Richard W. Bower, O. J. Solander, Stephanie G. Sakai, Irell & Manella, Gregory R. Smith, Joanna Moore and David Z. Moss for Defendants and Appellants. By 2008, PECG-represented employees received pay raises to bring their salaries in line with their counterparts in California's large local public agencies. In short, Riley requires that the state hire new employees, as opposed to contracting with the private sector, whenever it is possible to hire someone to perform the services at issue, regardless of any other considerations. 419.) "However, this question is not presented by Chapter 433. List of professional designations in the United States 4th 548] outline the general constitutional and statutory principles before discussing their application to the facts of this case. 3d 951, 957, this court determined that it must "subject to careful scrutiny any legislation restricting the ability of defendants to cross-examine witnesses whose testimony is offered as evidence of probable cause [at a preliminary hearing]." In the absence of any substantial evidence supporting this legislative intent to accommodate Caltrans in circumventing the court's injunction, we must deem this purpose, however clearly expressed, insufficient to satisfy the constitutional mandate. They explore the challenges and successes in building and rebuilding major infrastructure projects. Although some studies, such as the one considered by the trial court below, estimated the average total cost of contracting out as being higher than using Caltrans staff (Sen. Appropriations Com., Fiscal Summary of Sen. Bill. 2d 859] [deferring to Georgia Legislature's judgment that capital punishment is valuable as a deterrent of crime, even though statistical attempts to evaluate its worth have occasioned a great deal of debate and results have been inconclusive]; Legislature v. Eu (1991) 54 Cal. (Legis. App. As there described by the Court of Appeal, "[t]his legislation arose from a legislative determination that '[p]ublic sources of revenues to provide an efficient transportation system have not kept pace with California's growing transportation needs, and alternative funding sources should be developed to augment or supplement available public sources of revenue.' "[U]nder the doctrine of separation of powers neither the trial nor appellate courts are authorized to 'review' legislative determinations." 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. of Equalization (1978) 22 Cal. Thus, as the majority acknowledge (maj. PECGs top-notch lawyers, contract negotiators, lobbyists, labor consultant and media specialist represent state-employed engineers, engineering geologists, land surveyors, architects, landscape architects, air pollution specialists, and related professionals individually and collectively. Here, the trial court did not assume that Chapter 433 was valid, but instead found it to be unconstitutional because it authorized Caltrans to contract out in a manner which violated article VII. It is the economic savings exception which is applicable here to find Chapter 433 constitutional on its face. 4th 566] privatization. We will paraphrase or summarize the key provisions here. 4th 589], We must first look to what was decided. 4th 571, 581 [7 Cal. [] For purposes of this section 'displacement' means layoff, demotion, involuntary transfer to a new class, or involuntary transfer to a new work location requiring the employee to change his or her place of residence in order to be able to continue in his or her job classification." 8 (Gov. (a)(1)). (Italics added, fn. Effective September 24, 1993, the Legislature adopted Chapter 433. * concurring. 0y850h%Z2#B 0\$%R*J sN4fu{]2f3X1)(Khx*pz"`Xnhr{so 3>leWp l>9w+ 2d 211] [rejecting equal protection challenge to rationality of legislative classifications in Cable Communications Policy Act of 1984]; cf. (a) [noting that certain of the contracts for retrofit projects were required to be executed by December 31, 1993].) ), The majority note that the trial court's 1990 injunction has become final, and that Caltrans has never challenged the trial court's earlier findings and conclusions. PECG has sponsored and produced several Emmy Award-winning documentaries that have been seen by millions of viewers around the country. [selection of engineers must be based on demonstrated competence, professional qualifications, and price]; Cal. 414-417; see Williams, supra, 7 Cal.App.3d at p. Cameron Knudson is president of Professional Engineers in California Government, representing 14,000 state engineers, architects, geologists, and related professionals. (Maj. As Caltrans readily concedes, it has always been responsible for project development of state highway projects. 3d 420, 444-445 [134 Cal. Governor Newsom Names Sean Duryee CHP Commissioner as amended July 14, 1993.) Instead, Caltrans relied solely on the new legislative findings characterizing seismic retrofitting as "short-term" work subject to private contracting (see new 14130, subd. Neither the Legislature nor the courts can satisfy article VII by the mere expediency of adopting unsubstantiated findings that purport to sustain or create an exception to the constitutional provision. Com. fn. Union: Professional Engineers in California Government (PECG) Percentage of Workforce: 4.5%; Number of Positions: 10,107; Profile: Employees represented by Unit 9 are professional engineers who design and oversee the construction and maintenance of roads, bridges, buildings, dams, and other infrastructure projects throughout the state. As the court observed, "Pursuant to the [new] provisions, [Caltrans] may calculate [its] civil service staffing needs without considering the full workload to be performed, may limit [its] procurement of civil service staff regardless of actual staffing needs or ability to productively use new staff, and [is] required to reinstate contracts for the purpose of fostering employment and business opportunities without regard to the constitutional civil service mandate. 2d 575, 579-582 [184 P.2d 505]; Stockburger v. Riley (1937) 21 Cal. The company's filing status is listed as Active and its File Number is 469773. Caltrans never even contended such in the trial court, much less produced any evidence showing such to be the case [citation]." If the law, when thus considered, does not appear to be unconstitutional, the court will not go behind it, and, by a resort to evidence, undertake to ascertain whether the legislature, in its enactment, observed the restrictions which the constitution imposed upon it as a duty to do, and to the performance of which the members were bound by their oaths of office." Rptr. According to the court, this finding could only be based on a study of actual workloads and available staff during particular fiscal years. Remote work options will be considered for this position. Mr. Nyein Chan Thu - Civil Site Engineer - Aung Kyaw Myint Construction There is nothing in the record to refute the implicit legislative finding that sufficient additional staff could not be obtained on a cost-effective basis." Rptr. 6 that contracting would provide more flexibility in addressing relatively short-term workload increases and expedite the delivery of transportation projects, and that waiting for Caltrans to hire and train new employees would delay locally funded projects and potentially increase the cost to local taxpayers. (Superior Court v. County of Mendocino, supra, 13 Cal.4th at pp. (See California State Employees' Assn. endstream endobj 375 0 obj <>stream California Federation of Interpreters, Local 39000 TNG-CWA v. Orange County Superior Court, et al. One would expect the majority to justify the extreme and unprecedented action undertaken in this case with sound [15 Cal. Article VII has been judicially interpreted as a restriction on contracting out state work to the private sector. Gregg v. Georgia (1976) 428 U.S. 153, 184-186 [96 S. Ct. 2909, 2930-2931, 49 L. Ed. What's Required When You Return to State Service, Part-time, Seasonal, and Temporary Employees (PST), Savings Plus Educational Workshops & Webinars, Travel and Accident Insurance for Excluded Employees, Discrimination Complaint Tracking and Monitoring, Limited Examination and Appointment Program (LEAP), Workforce Analysis and Census of Employees, Information Technology Class Consolidation, Layoffs / Reinstatement / State Restriction of Appointment (SROA), Reimbursement - Travel, Relocation, and FlexElect, California Network of Learning Professionals Forum, Appeal of denial of merit salary adjustment, Appeal of involuntary geographic transfer, Appeal of involuntary non-geographic transfer, Request for reinstatement after automatic resignation (AWOL), Request for reinstatement after automatic resignation of permanent intermittent employee (AWOL PI), Merit Award Program - Benefits Administration Manual, Merit Award Program Purpose and Authority, Career Executive Assignment (CEA) and Exempt Employees, Career Executive Assignment - Policy Memos, CEA classifications included in leadership competency model, Supervisor's Responsibilities During the Probation Period, CalHR's Supervisors Guide to Addressing Poor Performance, Model Workplace Violence and Bullying Prevention, Title 2, California Code of Regulations, section 599.859, Title 2, California Code of Regulations, sections 599.893 through 599.910, Pay package for excluded and exempt employees, Statewide Workforce Planning and Succession Management, State of California Workforce Planning Model, Phase 1 - Set The Strategic Direction for the Workforce Plan, Phase 2 - Gather and Analyze Organizational Data for the Workforce Plan, Phase 3 - Develop Strategies and the Workforce Plan, State of California Succession Management Model, Part 1-Identify and Prioritize Key Positions, Part 2 - Identify Candidate Pool and Gaps, Part 3 - Develop Succession Management Strategies, CalHR Workforce Planning and Succession Management Programs, Current Workforce and Succession Plan Status, Virtual Help Desk for Supervisors and Managers, Benefits Administration Training Course Handouts, Common Carrier Travel and Accident Insurance, Part-time Seasonal and Temporary (PST) Program, Career Executive Assignments Delegation Agreement Template, Changes to the Career Executive Assignment (CEA) Program, Enterprise Core Record (ECR) Project Information, Abolished Classification Listing by State Personnel Board Meeting Date, Guide to the CalHR Substance Abuse Testing Program, Apprenticeship Information for Departments, Apprenticeship Information for State Employees, Exceptional Allocation Delegation Agreement Template, Exceptional Position Allocations Requiring Form STD. opn. Plaintiffs also assert there was no objection to the trial court taking judicial notice. (Amwest, supra, at pp. It features interviews with some of the top energy and economic experts along with educators and high-level government officials, all striving to develop clean energy solutions and alternatives to burning fossil fuels. For the judiciary to litigate and reject the factual conclusions of the legislative branch supporting its policy determinations-and even to come to opposite conclusions-strikes at the heart of this delicate structure. I also find troubling the majority's suggestion that legislative action may be validated based only upon data and studies actually considered by the legislative body. opn., ante, at pp. Remarks. In any event, there is an additional reason why the contracting authorized by Chapter 433 is constitutionally permissible despite the perceived absence of concrete data proving the cost-effectiveness of contracting or the inadequacy of civil service staff. FN . An applicant for licensure as a Professional Engineer must meet the qualifying experience requirements outlined in Business and Professions Code sections 6751 (c) and 6753 and Title 16, California Code of Regulations section 424. App. 844-846.) The Professional Engineers in California Government represents 14,000 state-employed engineers and related professionals. 2. PECG (@PECG) / Twitter [15 Cal. Thus, the California Constitution Revision Commission considered and rejected an approach that would have given the Legislature open-ended authority to create exemptions from civil service in any area in which the Legislature felt that public policy would be served better by an alternative to the civil service system. 4th 593] Cal.Rptr.2d 837, 913 P.2d 1046].) [Citation.]" opn., ante, at p. The trial court used similar factual conclusions elsewhere in its order as well. (D'Amico v. Board of Medical Examiners (1974) 11 Cal. ReviewBusiness and Professions Code section 6759for additional information regarding comity. [15 Cal. It is for the Legislature to find the facts and it falls to us to respect those findings unless they are clearly wrong-wrong without reasoned dispute or the influence of opposing perspectives. [15 Cal. Unless a statute's unconstitutionality " 'clearly, positively, and unmistakably appears' " (Calfarm Ins. As a result, [Caltrans] purposely create[s] a need for 'a stable contracting out program' to timely deliver transportation projects, institutionalize the use of contracting in project delivery, and displace civil service employees from the function they have historically performed, in violation of article VII.". In effect, the trial court circumvented Lockard and Stevenson by taking judicial notice of the truth of its own findings. The Majority Err by Not Applying the Presumption of Constitutionality. 1503] and subsequent decisions. ), Finally, in Professional Engineers v. Department of Transportation (1993) 13 Cal. 2d 12, 906 P.2d 1112]; Lockard v. City of Los Angeles (1949) 33 Cal. Thus, " '[L]egislative findings, while not binding on the courts, are given great weight and will be upheld unless they are found to be unreasonable and arbitrary. RH'L`ISJT *2Pe8YcrPXffr!9@1Xr?j [Q%.QV (Turner Broadcasting System, Inc. v. FCC (1994) 512 U.S. 622, 666 [114 S. Ct. 2445, 2471, 129 L. Ed. at p. 1018.) Rptr. Rptr. ", The Court of Appeal next addressed the trial court's conclusion that section 14137 (directing Caltrans to continue contracts in force or awarded on or before July 1, 1993) is invalid because it purports to override the court's injunction without stating facts establishing the contracts at issue satisfied the civil service mandate. One of these orders recited that because Caltrans was underestimating its actual workload and was maintaining an insufficient level of civil service staff, it needed to use private consultants to perform scheduled and unscheduled work beyond the capacity of civil service staff. App. 4th 585, illustrates, changing conditions and California's growing . (Ballot Pamp., Proposed Amends. The Registered Agent on file for this company is Ted E Toppin and is located at 455 Capitol Mall Suite 501, Sacramento, CA 95814. (a)(5). App. ), In this connection, we note that in 1966, in summarizing its recommendations with regard to the proposed revision of former article XXIV, the California Constitution Revision Commission stated: "The first question discussed in considering Article XXIV was whether the matters treated in the article, and particularly the enumeration of exemptions [from civil service] in Section 4, ought to be retained in the Constitution. According to Williams, the civil service mandate is aimed at protecting "the existing civil service structure," and does not compel the state "to fulfill every new state function through its own agency." Rptr. 463, 382 P.2d 583]; Delaney v. Lowery, supra, [15 Cal. In my judgment the majority, although purporting to follow settled rules, in fact apply a totally unprecedented standard for invalidating Chapter 433 without offering any justification or rationale for rejecting a century of decisional law in California. (Delaney v. Lowery (1944) 25 Cal. FN 10. (13 Cal.App.4th at pp. He preceded his analysis with this succinct, and we believe accurate, description of the private contracting restriction in article VII: "History has shown that patronage hiring of public employees corrupts the political process, leads to waste, and depletes the quality of the public workforce. 180. 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. This is elementary. 568-569; Collins v. Riley (1944) 24 Cal. On the contrary, we [15 Cal. Rptr. at pp. I see no legitimate basis for such an approach, which intrudes upon the legislative process in outright disregard of the separation of powers. Rptr. (1985) 40 Cal. (Professional Engineers, supra, 13 Cal.App.4th at p. Greg has over 10 years of Defence + 19 years of industry experience and is a professional project manager. That is, the challenged legislation did not compel Caltrans to [15 Cal. "This is entirely consistent with the civil service mandate, a key purpose of which is to encourage efficiency and economy in state government. 1209 (1993-1994 Reg. San Jacinto Community College District, Paul Sanchez v. Orange County Employees Association, Panama-Buena Vista Teachers Association v. Panama-Buena Vista Unified School District, Unite Summit, CTA/NEA v. Summit Public Schools, Registered Nurses Professional Association & Service Employees International Union Local 521 v. County of Santa Clara, Oakland Education Association v. Oakland Unified School District, Pittsburg Education Association, CTA/NEA v. Pittsburg Unified School District, Gavin English v. Inglewood Unified School District, David Lisker v. San Francisco Community College District, Mammoth Lakes Police Officers Association v. Town of Mammoth Lakes, Alameda Probation Peace Officers Association v. County of Alameda (Probation Department), Compton Firefighters, IAFF Local 2216 v. City of Compton, Daniel Boreen v. City & County of San Francisco, United Public Employees, Inc. v. Sacramento County Superior Court, Jorge Robles v. State of California (Department of Corrections & Rehabilitation), Long Beach Association of Engineering Employees v. City of Long Beach, Service Employees International Union Local 1000 v. State of California (Department of Motor Vehicles), Cerritos College Faculty Federation, AFT Local 6215 v. Cerritos Community College District, Sacramento City Teachers Association v. Sacramento City Unified School District, United Teachers Los Angeles v. Los Angeles Unified School District, Operating Engineers Local 3 v. Santa Clara County Superior Court, Lillian Edith Grant v. Inglewood Unified School District, Sacramento City Teachers Association. [Caltrans] is not required to staff at a level to provide services for other agencies." 42, 486 P.2d 1242, 45 A.L.R.3d 1206].) (See, e.g., Rockwell v. Superior Court (1976) 18 Cal. 464-465), I conclude the statutory scheme and its call for a cost-effectiveness study are rationally related to the goal of achieving the most economical mix of public and private service for the timely delivery of state transportation projects. 225, 703 P.2d 1119].) at p. Code, 14130, subd. 4th 569] it prefers private contracting in the areas it mentioned, but legislative preference affords no proper ground for excusing a constitutional violation that a trial court's final judgment previously enjoined. SATENDRA SHARMA - Senior System Engineer - Infosys | LinkedIn 2d 599].) (Sosinsky v. Grant (1992) 6 Cal. App. I am working exclusively with a highly reputable . 232] (CSEA).) In other words, the trial court cannot do indirectly what it is not permitted to do directly. 593-594, italics added. Moreover, although the experimentation in that case called for private entities to construct and operate the particular projects at issue, it nonetheless contemplated that Caltrans would maintain a supervisory role and " 'exercise any power possessed by it with respect to the development and construction of state transportation projects.' 4th 581] confirms that when Chapter 433 was passed, the issue of cost-effectiveness of contracting for professional services was a hotly disputed matter. 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. Chap. 361, 551 P.2d 1193]; see also Spiritual Psychic Science Church v. City of Azusa (1985) 39 Cal. Although the legislation at issue in Professional Engineers differs from Chapter 433 insofar as it involved no expenditure of state funds, the majority recognize that article VII would permit experimentation "despite the use of state funding." 4th 585 [16 Cal. Rptr. 2d 437, 449-450 [94 P.2d 794].) 558, 718 P.2d 920].) Rptr. Reaching out to all Roads/Highway Engineers! Rptr. Mivy James FBCS - Engineering Fellow - BAE Systems | LinkedIn Rptr. As I shall explain, Chapter 433 provides a constitutionally valid basis for dissolving the 1990 injunction on the same ground. 2d 818, 828 [142 P.2d 297].) 305] (Williams).). Rptr. 4th 594] This court has adhered to these principles in numerous cases involving diverse situations. [Citations.]" Dissenting.-The majority find chapter 433 of Statutes 1993 (Chapter 433) violative of the state Constitution's civil service provision (Cal. [Citation. The legislative history [15 Cal. 800, 647 P.2d 76] (vagueness challenge to special circumstance statute); In re Ricky H. (1970) 2 Cal. (Gov. ), Second, contrary to the majority's suggestion, the experimentation at issue in Professional Engineers did not require the "total" withdrawal of a state function. Even when applying "careful scrutiny," however, this court stated: "At the same time, we are mindful that it is our duty to uphold a statute unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity. In so holding, the Court of Appeal relied heavily on legislative findings and declarations that purport to justify Caltrans's contracting activities. The majority find Chapter 433's provisions "too far-reaching in scope" to qualify as permissible legislative experimentation under Professional Engineers, supra, 13 Cal. Two important consequences flow from this fact. Of course these efficiencies and economies remain to be proven, but the very purpose of the demonstration projects is to explore the feasibility of the private financing/management approach." " (Professional Engineers, supra, 13 Cal.App.4th at p. 590, quoting Sts. There is nothing in Riley to suggest that personnel shortages, earthquakes, economic efficiencies, new state functions, higher skills, etc., would not be within the meaning of this exception. PECG is a volunteer organization assisted by professional negotiators, consultants, attorneys, and Sacramento lobbyists and is not affiliated with any organization or union. at p. For information regarding the qualification requirements, reviewBusiness and Professionals Code section 6755andTitle 16, California Code of Regulations section 438(a). See, e.g., In re M.S., supra, 10 Cal.4th at page 710 (overbreadth and vagueness attacks on hate crimes statute); Calfarm Ins. Below are lists of the top 10 contributors to committees that have raised at least $1,000,000 and are primarily formed to support or oppose a recall election. (See County of Los Angeles v. Legg (1936) 5 Cal. at p. 696; Miller v. Board of Public Works, supra, 195 Cal. Dennis F. Moss, Gary P. Reynolds, Harry J. Gibbons, Sam A. McCall, Jr., Neil Robertson, Williams, Romanski, Polverari & Skelton and Anthony M. Santana as Amici Curiae on behalf of Plaintiffs and Respondents. In support of this finding, subdivision (a)(4) indicates that the use of private consultants has substantially enhanced project delivery; that private consultants recently helped to accelerate nearly one billion dollars worth of state highway projects; and that this increase in project delivery capability must continue for timely project delivery.