Const., art. Fund v. Riley (1937) 9 Cal. omitted. Unlike the federal Constitution, which is a grant of power to Congress, the California Constitution is a limitation or restriction on the powers of the Legislature. Analyst, letter to Sen. Marian Bergeson (July 15, 1993) p. Of course, nothing in this opinion would prevent Caltrans from seeking modification of the 1990 injunction based on a showing that particular contracts are justified because state workers cannot perform the work "adequately and competently," or as economically, or because the work calls for the performance of new state functions. As we explain, the civil service mandate forbids private contracts for work that the state itself can perform "adequately and competently." (Riley, supra, 9 Cal.2d at p. (See Professional Engineers, supra, 13 Cal.App.4th at pp. " According to the dissent, Caltrans did not challenge this new finding, but has relied entirely on the provisions of Chapter 433. (Italics added, fn. Control v. Superior Court (1968) 268 Cal. 786, 520 P.2d 10].) In this case, the principal issue is whether Chapter 433 constitutes a constitutionally valid attempt by the Legislature to encourage private contracting in furtherance of these objectives. (Gov. 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. 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. FN 7. As the amicus curiae brief of various county transportation agencies correctly observes, Riley's test "is broad enough to permit contracting out where the nature of the task is such that the civil service could not perform the task efficiently, or quickly enough, or with the same degree of skill. The trial court found no facts to support a finding that civil service staff would be unable "adequately and competently" to perform the work at issue. As explained below (post, pt. Code, 14130.1; Sts. fn. ", Former section 14130 et seq. 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. Consistent [15 Cal. ), In that case, the Court of Appeal upheld the challenged legislation, concluding that although the design and construction of roads were neither new functions nor ones that state workers could not satisfactorily perform, the privatization program was an experimental one, and no state funds would be used to defray construction costs. App. (Maj. 3d 361, 368 [220 Cal. This is because this court "[is] bound, if possible, to construe a statute in a fashion that renders it constitutional." Code, 3424, subd. App. (a).) Under these circumstances, considerations of efficiency and economy permitted an exception to the private contracting restriction. 844. The trial court also concluded that many of the facts in those findings (of April 17, 1990, and subsequent enforcement orders) were judicially noticeable pursuant to Evidence Code section 452, subdivisions (g) and (h). I recognize that the protracted litigation over Chapter 433 has by now probably defeated the Legislature's intent in this regard. (Stats. These decisions are reasonable, practical ones aimed at preserving the state's civil service from dissolution or decay without unduly hampering state agencies such as Caltrans from private contracting whenever the circumstances reasonably justify it. ), (3) Caltrans may use private contracting on state highway projects funded by federal and state funds "to support state transportation infrastructure funded by local resources, to ensure timely retrofitting for seismic safety on state transportation infrastructure, and to ensure timely and cost-effective project delivery." of Sacramento v. Saylor, supra, 5 Cal.3d at page 692, this court held that a "settled principle" is the "strong presumption in favor of the Legislature's interpretation of a provision of the Constitution." [Citation.]". The question before us here is whether these provisions are consistent with article VII. (Accord, Lundberg v. County of Alameda (1956) 46 Cal. Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal. Professional Engineer applicants who are applying for a waiver of the Fundamentals of Engineering (FE) exam [also known as an Engineering-in-Training (EIT) waiver] need to submit acomplete application. ), This court explained that when dealing with the question of whether to uphold the Legislature's determination that an urgency measure is necessary, it applies "the rule that a declaration of urgency by the Legislature will not be declared invalid 'unless it "appears clearly and affirmatively from the legislature's statement of facts that a public necessity does not exist." Workers v. Ohio State Univ. For instance, Government Code section 14131, which is not altered by Chapter 433, provides: "The department may contract for the services of engineers, architects, surveyors, planners, environmental specialists, and materials testing specialists to provide professional and technical services relating to project study reports, project development, surveying, and construction inspection whenever the director determines that the guidelines adopted pursuant to Section 14134 are applicable. Given the pressing demands upon California to meet its growing transportation needs and the funding and safety concerns that support timely project delivery, it behooves this court to uphold legislative experimentation to the maximum extent consistent with article VII of our state Constitution. Because Chapter 433 encourages contracting flexibility on an expressly limited basis and for the very purpose of promoting and ascertaining efficiency and economy, and because it subjects such contracting to rules protecting against political favoritism, I believe it provides a valid basis, consistent with the constitutional civil service provision, for dissolving the 1990 trial court injunction. CalHR 138: Leave Reduction Plan; Casey is a member of the American Society of Civil Engineers and the Professional Engineers in California Government. (See, e.g., State Compensation Ins. This site is protected by reCAPTCHA and the Google. Accordingly, there is no basis for the majority's unacknowledged abandonment of the long line of authorities I have previously discussed. All further statutory references are to the Government Code unless otherwise indicated. (Beach v. Von Detten (1903) 139 Cal. Moreover, as Professional Engineers, supra, 13 Cal. I am working exclusively with a highly reputable . Legislative findings based on evidence elicited at committee hearings or derived from extensive factual studies logically would be entitled to more weight than findings included in legislation solely to accommodate a litigant's request for relief. [Citation.]" This significant increase in project delivery capability must continue in order for the department to meet its commitments for timely project delivery." It also puts lives at risk. (Matter of Application of Miller, supra, 162 Cal. 4.) [Citation.]" CSEA determined that cost savings or efficiency would be a relevant, though not conclusive, factor in applying Riley's "nature of the services" test. ( 14130, subd. (Professional Engineers, supra, 13 Cal.App.4th at pp. Both the Court of Appeal majority and dissent agree that, despite the Legislature's characterization (see 14130, subd. 2d 497] for the proposition that the deference afforded to legislative findings does not foreclose a court's independent judgment of the facts, and that the court is obligated to assure that the legislative body has drawn reasonable inferences based on substantial evidence. Nevertheless, I agree with the majority that Riley and its progeny need not be overruled at this time. 3d 1035, 1040 [209 Cal. 21, 529 P.2d 53] [adoption of constitutional language similar to that in former constitutional provision is presumed to incorporate authoritative judicial construction of former language]; cf. 8 (Gov. 1209 (1993-1994 Reg. 851.) (29 Cal.3d at pp. The legislative history [15 Cal. 4 [15 Cal. Professional Engineers in California Government was formed in 1962 for the sole purpose of representing state-employed engineers and related professionals responsible for designing and inspecting Californias infrastructure, improving air quality, and developing clean energy and green technology. Recruitment Leader | Government Professionals (Construction, Property & Engineering) at Randstad Australia . Rptr. Mircom Group is among Canada's most successful intelligent building . ` 3evNID#DA@$_%Lx~X/s#&h aM XIII A] of a kind, similar to many others, which necessarily and over a period of time will require judicial, legislative and administrative construction. Skilled in JIRA, Microsoft Word, Java, ServiceNow and Rally with sound exposure to Guidewire Policy Center Configuration and Tortoise SVN, bitbucket, Gitlab and Git version control tools. [Citations.] The 'rule of deference to legislative interpretation' of the California Constitution, therefore, has no application in the present case. That is, the challenged legislation did not compel Caltrans to [15 Cal. endstream endobj 378 0 obj <>stream ReviewBusiness and Professions Code section 6759for additional information regarding comity. To me, however, the existence of this provision further shows the Legislature was aware of Riley and its progeny and was attempting to enact legislation that would pass constitutional muster. [15 Cal. Const., former art. App. Annual Leave Comparison Chart. If education is used as a part of the required qualifying experience, the actual work experience must be gained after graduation. #CAStateEngineers. as amended June 24, 1993.) 4th 565] concluded that California has one of the best civil service systems in the nation and that constitutional treatment of the basic elements of the system is essential to insure continuance of its high quality. Com. 9," and Dennis Alexander, a taxpayer (collectively Professional Engineers), filed a petition for writ of mandate in the San Francisco . This total break with precedent is not warranted by Chapter 433. If applicants fail to provide additional information or references within 90 days following the request by Board staff, the application may be considered abandoned, and the application fee forfeited (Title 16, California Code of Regulations section 428). Otherwise, the judicial branch may be perceived as assuming the role of arbiter of social and fiscal policy, a role which is properly left to the representative branch of government. " (Amwest Surety Ins. 2d 1244, 1249; Moore v. State, Dept. App. From time to time before adopting Chapter 433, the Legislature had enacted provisions governing the state's authority to contract with private entities. 4th 594] This court has adhered to these principles in numerous cases involving diverse situations. (Id. Thus, section 14130, subdivision (d), purports to relieve Caltrans from its obligations (1) to use state employees to perform engineering and related services "to the maximum extent required to meet the goals of this article," and (2) "to staff at an internal level that matches its ability to assimilate and productively use new staff." Rptr. 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. (See Department of Transportation v. Chavez (1992) 7 Cal. In April 1990, the trial court enjoined defendant state Department of Transportation (Caltrans) from privately contracting for engineering and inspection services that state civil service employees had traditionally performed on state highway projects. References to undesignated code sections are to provisions of the Government Code as contained in Chapter 433. 1993, ch. Dist. 568.). of Kennedy, J. A title authority indicates a proficiency in that field greater than what is required for Civil Engineering licensure. ["Neither due process nor the First Amendment requires legislation to be supported by committee reports, floor debates, or even consideration, but only by a vote."]. As envisioned by the Legislature, one group of projects was to consist of projects for which engineering services were provided primarily by civil service staff and the second group was to consist of similar projects for which engineering services were provided primarily by outside consultants. But Caltrans fails to offer any alternatives short of simply abrogating the private contracting restriction in its entirety. 568-569; Collins v. Riley (1944) 24 Cal. 397.) This includes submitting all required documents and information. (Riley, supra, 9 Cal.2d at pp. As this court cogently stated more than 90 years ago, "In determining the constitutionality of an act of the legislature, courts always presume in the first place that the act is constitutional. 2023 National Society of Professional Engineers | 1420 King St . 4th 581] confirms that when Chapter 433 was passed, the issue of cost-effectiveness of contracting for professional services was a hotly disputed matter. (Superior Court v. County of Mendocino, supra, 13 Cal.4th at pp. Accordingly, the Court of Appeal majority concluded that Chapter 433 is constitutional "on its face," reserving the question whether its provisions are "now or will be applied constitutionally." Section 14133, subdivision (a), provides that the "personal services contracts" provisions of section 19130 (discussed in the following paragraph) [15 Cal. 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. (CSEA, supra, 199 Cal.App.3d at pp. 2d 126 [69 P.2d 985, 111 A.L.R. App. Consistent with the view that Chapter 433 is provisional in nature, the Legislature declared that engineering services necessary for seismic safety retrofitting "shall be considered a short-term workload demand." of Equalization, supra, 22 Cal.3d at p. 244 [construing Cal. 433, 485 P.2d 785].) The result is Chapter 433." of Health (1986) 28 Ohio St.3d 463 [504 N.E.2d 1108, 1109-1110]; Local 4501, Comm. 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." Code, 143, subd. 854, 616 P.2d 836] (involuntary conservatorship provisions); In re Klor (1966) 64 Cal. Rptr. The application must demonstrate that an applicant is fully qualified for licensure. 361, 551 P.2d 1193]; see also Spiritual Psychic Science Church v. City of Azusa (1985) 39 Cal. Code, 14130.1, subd. Const., art. ), Caltrans asserts supposed policy reasons why we should overrule or disapprove 60 years of settled case law: "As a result [of the existing case law], Californians have had to forego promising new techniques for providing services, ranging from contracting with private contractors to outright [15 Cal. [Citation.]" 1503] (Riley); California State Employees' Assn. 4th 1548, 1564-1565 [8 Cal. PECG is committed to your success. as amended July 14, 1993.) 114, 708 P.2d 693] [legislation must be upheld unless conflict with constitutional provision is "clear and unquestionable"].) Rptr. 1227-S November 5, 1997 ) ) ) ) ))) ) Appearances; Dennis F., Moss Attorney, for Professional Engineers in California Government; State of . v. State Bd. Professional Engineers in California Government (PECG) 10 . 558, 718 P.2d 920].) But never before has that approach been invoked to invalidate legislation resembling Chapter 433. (Professional Engineers, supra, 13 Cal.App.4th at p. Former section 14130, subdivision (a), set forth certain legislative findings, including: (1) recognition of a "compelling public interest" in capturing and using in a timely manner available federal, state, local, and private funds for the state highway program (former 14130, subd. as amended July 14, 1993, p. This has made more expensive by possibly billions of dollars the delivery of services in California. Section 14134, subdivision (a), sets forth guidelines that include ensuring the timely capture and use of available federal, state, and local funding, reducing "short-term fluctuations" in workload relating to project study and development, ensuring that "the cost effectiveness of contracting" is considered equally with other factors in contracting decisions, and ensuring that the contract selection process complies with state law and avoids unlawful or unfair procedures. As I shall explain, Chapter 433 provides a constitutionally valid basis for dissolving the 1990 injunction on the same ground. The majority's reliance on Turner is misplaced. At oral argument, plaintiffs conceded that the appropriate standard of review for legislative findings was expressed in Lockard v. City of Los Angeles (1949) 33 Cal. Sess.) omitted. 4th 604] review. ]; Gov. 592-593; Williams, supra, 7 Cal.App.3d at pp. Unit 9 (Professional Engineers) MOU Analysis Format: HTML; August 25, 2022 - We reviewed the proposed memorandum of understanding for Bargaining Unit 9 (Professional Engineers). A Span in Time tells the saga of the 2007 Labor Day weekend Bay Bridge construction project, with the now-legendary C.C. at pp. Plaintiffs also assert there was no objection to the trial court taking judicial notice. Sess.) " (Spiritual Psychic Science Church v. City of Azusa, supra, 39 Cal.3d at p. 514, italics added, and cases cited therein.) 3d 390. I am interested in your organization and I want to be a member of your team. (Maj. (Lockard v. City of Los Angeles (1949) 33 Cal. In the many proceedings which produced the injunction and enforcement, Caltrans, the administrative agency which is the necessary source of evidence that contracting out is cost-effective, has been unable to provide any such evidence. 4th 598] (1943) 22 Cal. Listing for: Atlas Technical Consultants. 4th 555] public safety, and to provide expertise unavailable through civil service. 847.) www.pecg.org. endstream endobj 375 0 obj <>stream App. It is specifically in the context of locally funded highway projects that the Legislature excused Caltrans from the requirement of having to staff at a level to provide services for other agencies. 2d 497] [overturning summary judgment in favor of government in case challenging "must-carry" provisions of Cable Television Consumer Protection and Competition Act of 1992].) Information Collection, Access and Disclosure page, Business and Professions Code sections 6751(c) and 6753. I further conclude that Chapter 433 does not violate article VII of the California Constitution (article VII) and is constitutional on its face. App. omitted, italics added.). (b). (See, e.g., County of Madera v. Gendron (1963) 59 Cal. 4th 585. App. 121, 128 [294 P. 3] ["It is to be presumed that the commission will exercise its powers in conformity with the statute and Constitution of the state."].) & Hy. 2d 817, 820 [161 P.2d 456, 171 A.L.R. (1978) 90 Wn.2d 698 [585 P.2d 474, 475]; see also Kaplan, The Law of Civil Service (1958) pp. Janssen Supply Group, LLC, part of Janssen Supply Chain (JSC), is recruiting for a Senior Staff Process Engineer, to be located in Horsham, PA, Cork, Ireland, Schaffhausen, Switzerland, or Leiden, Netherlands. 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." 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. 3d 951, 957 [232 Cal. 3d 492, 524 [286 Cal. 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. 3d 168, 180, this court applied the foregoing "fundamental principles of constitutional adjudication" to a challenge to legislation based on article VII. of Transp. 2d 245, 828 P.2d 147].) Under these circumstances, the legislative judgment may not be set aside. Thus, the court concluded that Chapter 433's legislative findings and directives are "obviously erroneous, unreasonable and inconsistent with the constitutional civil service mandate," and for that reason the provisions are unconstitutional to the extent they purport to authorize Caltrans to contract privately without a factual showing that the contract is permissible under applicable constitutional principles. Moreover, Caltrans had not attempted to prove that private contracting could produce any substantial cost savings. (Legis. [Citations.]" 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. This court has followed this principle in a wide variety of situations. PROFESSIONAL ENGINEERS IN CALIFORNIA GOVERNMENT is a California Non-Profit Corporation - Ca - Mutual Benefit filed on April 29, 1964. FN 6. fn. omitted.) As I shall explain below, however, due deference to the legislative process, coupled with straightforward adherence to precedent interpreting the proper reach of the constitutional civil service provision, foreclose such a bizarre result. 18 [881 P.2d 1059, 1061-1062]; Wash. As Caltrans graphically puts it, "[t]he incoherent, unworkable, and potentially crippling tests which encrust and distort article VII are not even hinted at by its language." Likewise, the majority fail to identify what "constitutionally protected rights" are at stake here which might cause the ordinary rules of deference to "vanish." (See maj. fn. This includes administering teacher training workshops, providing educational curriculum to schools and conducting engineering competitions. Read the Department's. (Ch. Rptr. of Sacramento v. Saylor, supra, 5 Cal.3d at pp. 3, AFL-CIO, Francisco J. Gonzalez v. City of Beverly Hills, Long Beach Supervisors Employees Association v. City of Long Beach, Service Employees International Union Local 521 v. County of Madera, Yuba City Teachers Association v. Yuba City Unified School District, Service Employees International Union Local 1021 v. County of Contra Costa, Professional Engineers in California Government v. State of California (Office of Statewide Health and Planning Development), Salena Ann Gonzales v. California School Employees Association, Carpinteria Association of United School Employees, Local 2216 v. Carpinteria Unified School District, Service Employees International Union Local 1021 v. Sacramento City Unified School District, Bellflower Teachers Association, CTA/NEA v. Bellflower Unified School District, Randi Winter v. El Camino Community College District, Sacramento City Unified School District v. Sacramento City Teachers Association, Santa Clara County District Attorney Investigators Association v. County of Santa Clara, Teamsters Local 853 v. City & County of San Francisco (Public Works), Alex Hernandez v. State of California (Employment Development Department), California School Employees Association, Chapter 32 v. Bellflower Unified School District, Bellflower Teachers Association v. Bellflower Unified School District, California School Employees Association Chapter 83 v. Visalia Unified School District, American Federation of State, County & Municipal Employees Council 36 v. Long Beach Public Transportation Company. By enacting article VII, the electorate sought to obtain fiscal responsibility in government. In 1986, plaintiffs (a labor organization representing state engineers and a citizen/taxpayer) filed suit to enjoin Caltrans from contracting with private entities to carry out state highway projects traditionally done by state civil service employees. (Accord, California Housing Finance Agency v. Patitucci (1978) 22 Cal. 0y850h%Z2#B 0\$%R*J sN4fu{]2f3X1)(Khx*pz"`Xnhr{so 3>leWp l>9w+ ), 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.' ), In Caltrans's view, Riley erred in inferring from California Constitution, former article XXIV, the predecessor of article VII, that the state is prohibited from using "independent contractors" except in narrow, exceptional situations. Two important consequences flow from this fact. Rptr. 7, This court has refused to undertake wholesale judicial amendment of legislation. At oral argument, plaintiffs conceded the trial court found Chapter 433 unconstitutional on its face. of Scalia, J.) (1963) 59 Cal. ), Caltrans acknowledges that although the federal government "actively encourages" private contracting, applicable legislation calls for "policies, procedures, and practices which will provide the Government with property and services of the requisite quality, within the time needed, at the lowest [15 Cal. The court found insufficient evidence to support Caltrans's contentions that (1) its increased project workload involved short-term or temporary work that private contractors could perform most economically and efficiently, or (2) private contracting would allow Caltrans to perform its work in a more timely and effective manner than hiring new civil service staff.