180. According to the court, this finding could only be based on a study of actual workloads and available staff during particular fiscal years. (Turner Broadcasting System, Inc. v. FCC (1994) 512 U.S. 622, 666 [114 S. Ct. 2445, 2471, 129 L. Ed. And as indicated previously, it is contemplated that these statutory provisions are to remain in effect only until January 1, 1998. fn. II. 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. (a) [grounds for modifying or dissolving "final injunction"]; see also Salazar, supra, 9 Cal.4th at p. 850 [court has inherent power to vacate an injunction upon a showing of a change in controlling law].). And the Legislature may not undertake to readjudicate controversies that have been litigated in the courts and resolved by final judicial judgment. Caltrans likewise criticizes Riley's progeny and the creation of such extensions or modifications as the "new state function" rule (see Williams, supra, 7 Cal.App.3d at pp. (1995) 11 Cal. (Amwest, supra, at pp. Rptr. 568.). As this very case illustrates, application of the majority's independent-judgment-of-the-facts approach permits legislative determinations and enactments to be "trumped" by court findings based upon scant evidence and never challenged on appeal. FN *. as amended June 24, 1993), such estimates were open to question (Legis. 7, This court has refused to undertake wholesale judicial amendment of legislation. App. 6 [43 Cal. (a)(1)); (2) declaration of a need to be "plan-ready" to maximize use of these funds (former 14130, subd. 3d 1, 8 [118 Cal. ), italics added. 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. 3d 685, 691 [97 Cal. 594.) and to locally funded highway projects fn. 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. Rptr. fn. endstream endobj 376 0 obj <>stream In order to prevail in a facial attack on a legislative enactment, the challenge must establish that under no circumstance can the legislation be applied without violating the Constitution. This site is protected by reCAPTCHA and the Google. of Alcoholic Bev. (Beach v. Von Detten (1903) 139 Cal. 3d 420, 444-445 [134 Cal. App. & Hy. 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. [Citations.]" [Citations.] (See California State Employees' Assn. Rptr. 3d 62, 77 [95 Cal. 4th 548] outline the general constitutional and statutory principles before discussing their application to the facts of this case. It is a legal conclusion to which courts do not defer. Click here to learn more. 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). California pecg.org Joined June 2009. . Click here for information and documentation examples. (Sosinsky v. Grant, supra, 6 Cal.App.4th at p. Rptr. fn. In light of our conclusion that Chapter 433 affords no basis for modification of the trial court's injunction, we need not reach plaintiffs' further argument that Chapter 433 is invalid as a violation of separation of power principles. (Williams, supra, 7 Cal.App.3d at p. 397, italics added.) Dist. 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. 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. Code, 14130.2, subd. 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. 594.) Where other areas of the law are concerned, the United States Supreme Court has made it clear that "a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data. (4) Contrary to Caltrans's contention, new section 14137, directing Caltrans to continue any contracts presently in force or awarded on or before July 1, 1993, is ineffective to override the court's earlier finding that certain contracts with private consultants for work during 1992-1993 did not meet the statutory criteria then in effect (former 14130 et seq.). (Id. 3d 951, 957 [232 Cal. 4th 599] purpose to keep within the restrictions and limitations laid down by the constitution. 16, 474 et seq. I am a bachelor's degree holder and I finished B.E-Civil from SHWEBO Government Technological College since 2015. App. California Federation of Interpreters, Local 39000 TNG-CWA v. Orange County Superior Court, et al. (See Amwest, supra, 11 Cal.4th at pp. Board for Professional Engineers, Land Surveyors, and Geologists, Civil Engineering Examinations Reference List. [Citations.]" A related provision, new section 14137, declares that contracts in force or awarded before July 1, 1993, for project management services "shall not be terminated, but shall continue to the conclusion of those contracts.". 593-595, and fn. 3d 575, 591 [131 Cal. Dist. The court also found that Caltrans made no attempt to show these contracts satisfied the criteria for private contracting listed in section 14130. is binding on the courts in the sense that the courts cannot then go behind those findings to find factual error or lack of what might be termed evidentiary support. App. as amended July 14, 1993). ), That the Legislature intends to encourage contracting out indicates a finding by that body that contracting out is frequently less expensive than hiring new employees, especially when the costs of short-term hiring and layoffs are taken into account. (Professional Engineers v. Department of Transportation (1993) 13 Cal. 2d 912, 916 [152 P.2d 169]; Martin v. Riley (1942) 20 Cal. Rptr. View job description, responsibilities and qualifications. Applicants should keep a copy of all materials submitted to the Board for their records. 1989, ch. Environmental Engineer, Water Engineer. 9," and Dennis Alexander, a taxpayer (collectively Professional Engineers), filed a petition for writ of mandate in the San Francisco . 4th 556] retrofitting and locally funded project categories. 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. By September 1, 1996, Caltrans was to submit data to the Legislative Analyst on total project costs for two groups of comparable highway projects. "[A]n as applied challenge assumes that the statute violated is valid and asserts that the manner of enforcement against a particular individual or individuals or the circumstances in which the statute is applied is unconstitutional." (Gov. 4th 571, 581 [7 Cal. hRKO0+s+*T]"QVE|0,IDz=qIH,\]cF5geOauuZwmE3&T:@1rm d(Y@p\R2SJaRs[)Fo.DF))ms5Jn& *d! (Estate of Horman (1971) 5 Cal. There is one area in which it has been said "that the ordinary deference a court owes to any legislative action vanishes," and that is "when constitutionally protected rights are threatened." Supervisors and Managers An Instrumental Part of PECG, PECG also sponsors and distributes educational documentaries that explore innovative solutions to the most serious problems facing our environment, economy, and livability. Analyst, letter to Sen. Marian Bergeson (July 15, 1993) p. No. Professional Engineer: Employees providing engineering, design, research, and related analytical information regarding structures such as highways, bridges, dams, and water treatment plants. (1 Witkin, Cal. 817, 621 P.2d 856].) In examining Chapter 433, it must be presumed the Legislature intended its act to be valid and to fall within the scope of its constitutional powers. [] Such is not the case. [Citations.] ( 14130, subd. As we explain, the civil service mandate forbids private contracts for work that the state itself can perform "adequately and competently." 2d 12, 906 P.2d 1112] (Amwest), quoting California Housing Finance Agency v. Elliott (1976) 17 Cal. opn., ante, at p. 433, 485 P.2d 785].) Effective September 24, 1993, the Legislature adopted Chapter 433. [Citations.] FN 7. The Court of Appeal ordered the 1990 injunction dissolved and the matter remanded to the trial court for further proceedings. The dissent disagreed, stating that "We are bound by the trial court's factual determination that the necessity to contract out, if any, arises out of an artificial, political constraint on the hiring of new civil service staff. 4th 590], It was by judicially noticing the truth of these factual findings that the court fundamentally erred. Government Code section 19849.13; Resources Forms. The trial court made a determination that the Legislature's factual findings were unsupported and erroneous based on factual conclusions reached by the trial court in its 1990 judgment and various orders of enforcement. The following instructions summarize the requirements for licensure as a Professional Engineer, but they are not intended to apply to every situation. Board staff is diligently working to process all applications as expeditiously as possible. (Gov. (Elliott, supra, 17 Cal.3d at p. 4th 765, 780 [35 Cal. Respondents' petition for a rehearing was denied July 16, 1997. In its April 19, 1994, order, the court accordingly affirmed its prior 1990 injunction, stating that "[t]o the extent that [Caltrans] justif[ies its] contracts with private consultants on the basis of the provisions of Chapter 433 instead of a factually supported determination pursuant to sections 14131 and 14134, the contracts are invalid and [Caltrans is] in violation of the injunction." (See CSEA, supra, 199 Cal.App.3d at pp. "However, this question is not presented by Chapter 433. The undisputed fact remains, as found by the Legislature, that at the time Chapter 433 was enacted staff was inadequate to perform the work. 550, 568), the constitutional civil service provision has been construed to allow the state to contract privately for services that state employees have [15 Cal. Finding that California Constitution, article VII did not discourage such experimentation, the Court of Appeal reasoned: "[T]o strike down these efforts would denigrate a key purpose of the civil service mandate-to promote efficiency and economy in state government. 1503] and subsequent decisions. Please view theFingerprinting FAQsfor detailed information. Citizenship nor California residency is required for licensure; however, disclosure of your Social Security Number or Individual Taxpayer Identification Number is mandatory. 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. 364-365; Note, State Civil Service Law-Civil Service Restrictions on Contracting Out by State Agencies (1980) 55 Wash. L.Rev. The state did not appeal and the decision is final. Strong operations professional graduated from California State University-Northridge. The Court of Appeal majority, after reviewing the relevant constitutional and statutory principles, initially rejected Caltrans's contention that new section 14130, subdivision (a)(5), makes Caltrans's use of private consultants to assist in project delivery a "new state function" exempt from the civil service mandate. 3d 171, 177, this court stated: "We are very mindful that article XXXIV [concerning local elections on low-rent housing projects] is a direct expression of the People who, alone, have the power to adopt or change the Constitution [citation], and that the judiciary, rather than the Legislature, is principally charged with its construction. Rptr. In other words, 'we do not look to the Constitution to determine whether the legislature is authorized to do an act, but only to see if it is prohibited.' Although Caltrans asserts that many other states allow private contracting, our review of the sister state decisions indicates that, like California, most of these states have substantial restrictions and "efficiency and economy" requirements to protect their civil service systems from deterioration through private contracting. 2d 599].) This increase in project delivery capability "must continue in order for [Caltrans] to meet its commitments for timely project delivery," and, accordingly, a "stable contracting out program" using private consultants is needed to allow Caltrans to perform project delivery "adequately, competently, or satisfactorily." opn., ante, at pp. (Accord, Lundberg v. County of Alameda (1956) 46 Cal. There, the initiative measure known as Proposition 103 provided that it could not be amended by the Legislature except to further the purposes of that act. (CSEA, supra, 199 Cal.App.3d at p. In any event, Caltrans fails to indicate whether these studies were [15 Cal. Please view theFingerprinting FAQsfor detailed information. ), The ballot argument to the voters at the time California Constitution, former article XXIV was adopted in 1934 stressed the purpose of the civil service provision was " 'to promote efficiency and economy' " in state government by " 'prohibit[ing] appointments and promotion in the service except on the basis of merit, efficiency, and fitness ascertained by competitive examination.' " (Riley, supra, 9 Cal.2d at p. App. (See, e.g., Moradi-Shalal v. Fireman's Fund Ins. 387].). 10. " 'In considering the constitutionality of a legislative act we presume its validity, resolving all doubts in favor of the Act. 4th 596] system over considerations of economic responsibility and economic sensibility. 232] (CSEA).) 135.) Rptr. of Education (1955) 134 Cal. A title authority indicates a proficiency in that field greater than what is required for Civil Engineering licensure. ), 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. FN 13. It is questionable whether a statute constitutionally could expressly bar the application of these safeguards. [] It would raise serious constitutional questions if we construed a statute to bar the safeguards against patronage developed in the case law, including the safeguard that the state be prepared to prove in a judicial forum that contracting out is warranted by considerations of economy or efficiency. & Hy. The new section states no facts to establish those contracts were exempt from the constitutional restriction on private contracting. 3d 168, 180-181 [172 Cal. 4th 1243 at page 1252 [48 Cal. Habtamu has successfully . VII, 1, subd. 2015-12-21, 10:17 AM - Flash Flood in the Northern California, Sacramento and Placer Counties until 12:15 PM. & Hy. at p. 2458]), courts have determined that " '[t]he rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack , will not suffice.' By adopting Chapter 433, the Legislature has made clear [15 Cal. 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. 2 In my view, the court erred in its determination of what constituted judicially noticeable facts. 2d 606, 618-620 [110 P.2d 1036] [same]; Williams, supra, 7 Cal.App.3d at pp. Unlike the majority, I believe these circumstances amply support the Legislature's decision to categorize the engineering services required for such projects as a short-term workload demand. Easy 1-Click Apply (DUNHILL PROFESSIONAL SEARCH & GOVERNMENT SOLUTIONS) System Engineer Lead - Remote job in Fairfax at Dunhill Professional Search job in Dallas, TX. As the dissent explained, "The trial court had determined the rights and obligations of the parties to this litigation under contracts entered into under the law preceding Chapter 433. (1978) 90 Wn.2d 698 [585 P.2d 474, 475]; see also Kaplan, The Law of Civil Service (1958) pp. (Id. Rptr. Code Regs., tit. Since the trial court erred in its determination that Chapter 433 was unconstitutional, the entire basis upon which it refused to modify or dissolve the injunction must be reversed. This reading is supported by the Legislature's express finding in section 14130, subdivision (a)(3), which recites that contracting out "avoid[s] the costly process of short-time hiring and layoff while still responding in a timely manner to funding opportunities and uncertainties[. XIII A] of a kind, similar to many others, which necessarily and over a period of time will require judicial, legislative and administrative construction. 134.) Co. v. Wilson, supra, 11 Cal.4th at p. 1252, quoting from California Housing Finance Agency v. Elliott (1976) 17 Cal. (See maj. ), FN 3. (Ferguson v. Skrupa (1963) 372 U.S. 726, 729 [83 S. Ct. 1028, 1030, 10 L. Ed. App. App. In many cases, engineers who work for the federal government are exempt from those laws, although federal agencies can set their own rules. "Whether a factual finding is true is a different question than whether the truth of that factual finding may or may not be subsequently litigated a second time. In 2003, 2010, 2012, and 2020 PLP was reinitiated to assist in achieving budget savings to improve the state's ability to meet its financial obligations. Caltrans correctly observes that the private contracting restriction and its exceptions do not appear in the bare language of article VII but derive from judicial interpretation regarding the logical implications of the constitutional provisions. (a)(3)). 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]. 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." on Transportation, Rep. on Sen. Bill No. 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. The majority offer no legal justification or policy rationale for abandoning this bedrock principle of law when legislative decisionmaking happens to follow litigation on related subject matter. Section 14131 permits Caltrans to contract for services with engineers, architects, surveyors, and other similar professionals whenever certain guidelines contained in section 14134 are applicable, as long as these contracts do not displace any Caltrans employees. 397-399.) 3d 840, 844 [245 Cal. FN 1. ). at p. An applicant for licensure as a Professional Engineer must meet the qualifying experience requirements outlined inBusiness and Professions Code sections 6751(c) and 6753andTitle 16, California Code of Regulations section 424. 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). 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. Thus, merely characterizing work as "short-term" does not justify using private contractors to perform it. This significant increase in project delivery capability must continue in order for the department to meet its commitments for timely project delivery." 2d 817, 820 [161 P.2d 456, 171 A.L.R. Job in Los Angeles - Los Angeles County - CA California - USA , 90079. 1991) 947 F.2d 787, 789 [federal procurement rules require agencies to acquire goods and services at lowest possible cost to taxpayer]. 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. at pp. 3d 287, 296-297 [250 Cal. 4th 573] our independent review to determine whether they reasonably support a contrary determination. Rptr. ), 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. I do not consider the impact, if any, of Government Code section 14101, which states: "The department shall contract with qualified architects and engineers for the performance of work when it is determined by the Director of Transportation, with the approval of the Director of Finance, that the obtainable staff is unable to perform the particular work within the time the public interest requires such to be done." Section President 2nd Term at PROFESSIONAL ENGINEERS IN CALIFORNIA GOVERNMENT David Tanouye, P.G. On the one hand, the plaintiff relied on the presumption of constitutionality to argue for a deferential standard, while its opponents argued the question was one of statutory interpretation which the court should consider de novo. 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. ", FN 15. [Citation.]" 4th 574] presented to the trial court or the Legislature. 184-186 [96 S.Ct. 4th 605] question whether such necessity exists is one of fact to be determined by the Legislature." fn. Caltrans failed to appeal those orders. 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. Click, Professional Engineers in California Government - All Rights Reserved. The majority opinion has the strong potential to hamstring the Legislature every time its proposed legislation touches upon a "constitutional mandate. . (b); see Cal. [3a] We turn then to the question whether Chapter 433 affords an independent basis for overturning the trial court's injunction and enforcement orders. 2d 698]. 3d 390, 397 [86 Cal. Cameron Knudson is president of Professional Engineers in California Government, representing 14,000 state engineers, architects, geologists, and related professionals. App. The article further provides that "[i]n the civil service permanent appointment and promotion shall be made under a general system based on merit ascertained by competitive examination." 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. Com. PECG is committed to your success. Unless conflict with a provision of the state or federal Constitution is clear and unquestionable, we must uphold the Act. Such a determination is endorsed by the majority opinion; however, I conclude that application or consideration of the trial court's findings is inappropriate under long-standing and well-regarded case law which the majority opinion fails to acknowledge and has not distinguished by applicable precedent. 2d 402, 892 P.2d 1145].) 4th 607] tripartite system. Of course, under Riley, Caltrans has had and continues to have the opportunity to justify specific private contracts on the basis that they are needed to assure timely project delivery unobtainable through the available state civil service. 2d 165, 170 [68 P.2d 741] (Stockburger) [enjoining state from hiring private independent contractors to clean state building].)