(Id. Assuming Riley's premise is correct, however, and the Constitution indeed limits private contracting, these subsequent cases seem reasonable, practical interpretations of the general constitutional provision. (1984) 12 Ohio St.3d 274 [466 N.E.2d 912, 914-915]; Stump v. Dept. Professional Engineers in California Government, The Next Frontier: Engineering the Golden Age of Green, Amazing: The Rebuilding of the MacArthur Maze, "California state engineers say yes to 8.5 percent raise, other perks", Bargaining Unit Contracts - Bargaining Unit 9, (PECG) - Professional Engineers, Engineers' Union Takes Labor Savings Ideas to Legislature, California Supreme Court Upholds Furlough Order for State Workers, Professional Engineers in California Government (PECG), https://en.wikipedia.org/w/index.php?title=Professional_Engineers_in_California_Government&oldid=1012499074, 455 Capitol Mall, Suite 501, Sacramento, CA 95814, This page was last edited on 16 March 2021, at 18:13. as amended July 14, 1993, p. 4; see ante, at p. 570) and a letter from the Legislative Analyst to a state senator indicating that figures purporting to show the respective costs of private and public service "are not directly comparable." (Italics added. 4th 547]. 548-550), as applied to those contracts. Similarly, section 14130.2, subdivision (a)(2), purports to relieve Caltrans of its obligation to maintain a civil engineering staff "at a level to provide services for other [local] agencies" that arrange their own financing for state highway projects. hXMk#G+}GJ`A z!%_S3d}p^nw1.%j cR1;0"3 L?gv,. Thus, even though the experimental nature of Chapter 433 may result in individual contract awards which are later demonstrated to lack cost-effectiveness, the Legislature reasonably could have concluded that the act's provisions will-on an overall basis, or in the long term, or both-further the objectives of efficiency and economy in project delivery. ), 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 primary question we must decide is whether intervening legislation (Stats. (Id. References to undesignated code sections are to provisions of the Government Code as contained in Chapter 433. Caltrans claimed this staff reduction was needed to avoid a budget shortfall, but it was really attributable to Caltrans's preference for private contracting. ), In Riley, we considered and rejected this precise argument, concluding that the civil service mandate does not distinguish between "employees" and "independent contractors," but is more concerned with whether the civil service staff could perform the services involved. Click here for information and documentation examples. Rptr. (CSEA, supra, 199 Cal.App.3d at p. Indeed, the substantial interrelatedness of the three branches' actions is apparent and commonplace: the judiciary passes upon the constitutional validity of legislative and executive actions, the Legislature enacts statutes that govern the procedures and evidentiary rules applicable in judicial and executive proceedings, and the Governor appoints judges and participates in the legislative process through the veto power. Traffic Engineer Applicants 1993, ch. 135.) (Alaska 1994) 875 P.2d 765, 768-773; Colorado Ass'n of Pub. George, C. J., Mosk, J., Kennard, J., and Benke, J., fn. (See, e.g., County of Madera v. Gendron (1963) 59 Cal. (Turner, supra, 512 U.S. at p. 666 [114 S.Ct. (Ferguson v. Skrupa (1963) 372 U.S. 726, 729 [83 S. Ct. 1028, 1030, 10 L. Ed. Such a system, operating without regard to considerations of economy or efficiency, and open to a "patronage/spoils system" method of contracting, would conflict with the electorate's probable intent in adopting article VII and its predecessor. 288, 775 P.2d 1057] [drafters of initiative measure, and voters adopting it, are deemed to know judicial construction of law serving as its source]. 2d 437, 449-450 [94 P.2d 794].) 7, p. 12, italics added. opn., ante, at pp. 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. Caltrans relies in part on the August 1993 Assembly Committee on Transportation report indicating that the cost-effectiveness of contracting for professional services "is a hotly disputed topic" and commenting briefly on Caltrans's improved "project delivery" (resulting, as the trial court found, from Caltrans's deliberate failure to maintain an adequate civil service staff) (Assem. 313, 1.5) dealt with contracts for professional and technical services. Prior to joining BAe systems Applied Intelligence in 2005 she worked for several international IT consultancies and corporations.<br>Mivy started her career as an analyst / programmer after completing a degree in Computer Science and Maths and soon moved into technical leadership and system design. " 'In considering the constitutionality of a legislative act we presume its validity, resolving all doubts in favor of the Act. opn., ante, at p. [15 Cal. It was recognized, for example, that the alternative of placing the entire exemption power with the Legislature would [subject] the legislators to unduly severe pressures to carve out various exceptions to the application of civil service laws and that much strain on the integrity and efficacy of the civil service system could result." The dissent observed that in reaffirming its 1990 injunction, the trial court found that Caltrans's " 'contracting activity during 1993-94 is contributing to the displacement of permanent, temporary and part-time civil service staff in the performance of project development work.' (1 Witkin, Cal. 471 [624 A.2d 229, 231]; Teamsters Local 117 v. King County (1994) 76 Wn. 4 [15 Cal. 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. Article VII has been judicially interpreted as a restriction on contracting out state work to the private sector. Rptr. One of PECGs goals is to promote the highest standards of professional practice. 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. By adopting Chapter 433, the Legislature has made clear [15 Cal. 114, 708 P.2d 693] [legislation must be upheld unless conflict with constitutional provision is "clear and unquestionable"].) Thus, the Legislature's determination of the facts warranting its action " 'must not be set aside [15 Cal. [establishing criteria for selection of contractors, selection process, and rules against conflicts of interest and unlawful activity].) 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. As the Court of Appeal majority recognized, these provisions, though somewhat inartfully drafted, seem aimed at authorizing Caltrans's private contracting and circumventing the trial court's injunction and subsequent enforcement orders. 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. (Estate of Horman (1971) 5 Cal. 1209 (1993-1994 Reg. 3d 188, 200-201 [182 Cal. Accordingly, there is no valid basis for a claim that Chapter 433 conflicts with the injunction because it imposes this burden upon the state." 3d 161, 175 [167 Cal. Rptr. Accordingly, there is no basis for the majority's unacknowledged abandonment of the long line of authorities I have previously discussed. fn. The Professional Engineers in California Government, which represents about 11,000 state engineers, recently contributed $250,000 to the main campaign committee supporting Newsom. The rule, moreover, remains viable today. [] Such is not the case. This case is about whether the state must hire new employees to perform such work or may contract out those services under statutory provisions. In such a case, the statute represents a considered legislative judgment as to the appropriate reach of the constitutional provision. 2d 93] (conc. Thus, contrary to the majority, I conclude that the trial court's prior findings of fact should not and cannot properly be utilized to invalidate the legislation in Chapter 433 as unconstitutional. "[W]herever possible, [this court] will interpret a statute as consistent with applicable constitutional provisions, seeking to harmonize Constitution and statute. App. (Lockard v. City of Los Angeles, supra, 33 Cal.2d at p. 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. 572-574.). Dist. 4th 585, 592-594 [16 Cal. ), 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. 576] [rejecting equal protection challenge to Judges' Retirement Law, which used age as a proxy for judicial competence, and following federal precedent declaring that correlation between increasing age and decreasing ability to competently perform work is a logical assumption that [15 Cal. (Lockard v. City of Los Angeles, supra, 33 Cal.2d at pp. (Riley, supra, 9 Cal.2d at p. 903] (taxation; "[W]hen the general nature of counties is considered and weight is given to the proper rules of construction, we are bound to read this limitation into the statute, in order to sustain, if possible, the constitutionality of the act. Rptr. v. State of California (1988) 199 Cal. (Italics added.). 387].). The Court of Appeal in Stockburger, supra, 21 Cal.App.2d at page 167, had questioned the relevance of cost savings, but CSEA overruled that decision in light of the ballot argument's emphasis on "efficiency and economy." No provision of Chapter 433 alters the traditional burden of proof that the government show that contracting out is warranted by considerations of economy or efficiency. 4th 591] Evidence (3d ed. Recruitment Leader | Government Professionals (Construction, Property & Engineering) at Randstad Australia . 1503] (Riley).) ", The dissent reviewed the history of the proceedings in this case and observed that, "[u]nable to make headway with the judicial branch's tiresome requirement that Caltrans produce evidence that contracting out was warranted as cheaper or more efficient, Caltrans sought a sanction from the Legislature for its practice of contracting out. (Cal. Section 14101 permits Caltrans to contract with qualified private architects and engineers if "the obtainable staff is unable to perform the particular work within the time the public interest requires such work to be done. No. In 1981, this court made quite plain that the foregoing presumptions and rules of deference apply when legislation is challenged as being in conflict with article VII of the California Constitution (article VII). 2d 165, 170 [68 P.2d 741] (Stockburger) [enjoining state from hiring private independent contractors to clean state building].) 592-593; Williams, supra, 7 Cal.App.3d at pp. The Majority Err by Approving the Trial Court's Reliance on the Truth of its Own 1990 Findings to Reject the Legislature's Subsequent Factual Findings. See the complete profile on LinkedIn and discover SATENDRA'S connections and jobs at similar companies. Com. 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. 37]; Barenfeld v. City of Los Angeles, supra, 162 Cal.App.3d at p. 1040; cf. The authority and duty to ascertain the facts which ought to control legislative action are, from the necessity of the case, devolved by the constitution upon those to whom it has given the power to legislate, and their decision that the facts exist is conclusive upon the courts, in the absence of an explicit provision in the constitution giving the judiciary the right to review such action. (Gov. Clickhereto learn more. Membership. Loren E. McMaster for Plaintiffs and Respondents. According to the court, Caltrans was displacing civil service staff from project development work that staff had historically performed and was maintaining staff at an inadequate level to create an artificial need for private contracting. on Transportation, Rep. on Sen. Bill No. ), 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. 461, 464 , the same reasoning led us to the statement that 'For the purpose of determining constitutionality, we cannot construe a section of the Constitution as if it were a statute, and adopt our own interpretation without regard to the legislative construction. 903, 415 P.2d 791] (anti-obscenity statute); Geiger v. Board of Supervisors (1957) 48 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. ), In Department of Transportation v. Chavez (1992) 7 Cal. The dissent believed that "[t]he majority would permit contracting out without adherence to any of the safeguard criteria developed in the case law. The content on this webpage reflects the information available to our office at the time it was published. Sess.) VII, 1, subd. h]k0. App. 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. 1991, ch. 552, 537 P.2d 384]; Miller v. Municipal Court, supra, 22 Cal.2d at p. 828; see San Francisco Taxpayers Assn. 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. Rptr. 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. In sum, article VII would not be undermined by the operation of Chapter 433. 3d 797, 812 [183 Cal. 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. 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." [] 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." Moreover, the Legislature heard from those knowledgeable on the issue of contracting fn. 1.) [Citation.]" For items not listed here, please contact CalHR Labor Relations. Rptr. opn., ante, at p. 1209 (1993-1994 Reg. 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. of Transp. at p. 416-417. This court continued: "That presumption has been phrased differently over the years, but its import remains clear. Rptr. Thus, as the majority acknowledge (maj. 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. 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. In summary, the court found that Caltrans was violating the 1990 injunction by contracting with private entities without factually demonstrating that it had met the statutory criteria for doing so. I do so not because I agree with the possible consequences of these cases, but because it is not necessary to overturn established precedent in order to uphold the legislation at issue here. There is also anFE waiver flowchartdepicting the requirements. as amended June 24, 1993; Assem. v. State Bd. In amending the Government Code in 1993, Chapter 433 sought to extend additional flexibility in contracting only to engineering services pertaining to projects involving statutorily required seismic safety retrofitting of publicly owned bridges (Gov. Analyst, letter to Sen. Marian Bergeson (July 15, 1993) p. After reviewing the new provisions at length, the court made the following findings and determinations: (1) Contrary to new section 14130, subdivision (a)(5), project development service is not a new state function exempt from the constitution al restriction on private contracting, and using private contractors for pro ject development duplicates existing state agency functions. 397.) No. 6 [43 Cal. 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."
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