professional engineers in california government

Sess.) (Amador Valley Joint Union High Sch. 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. 1209 (1993-1994 Reg. Rptr. Would it be bound by the Evidence Code as to what evidence it could consider? Com. Com. ]; Gov. Riley rejected the argument that the services independent contractors perform are beyond the civil service mandate's reach, stating that "[a]ny other construction of the constitutional provision would have the effect of weakening, if not destroying, the purpose and effect of the [civil service] provision." 851. Early on the California Supreme Court recognized that the civil service provisions will not work if the merit appointment system can be circumvented by simply contracting out civil service jobs. 649, 652-653 [27 P. 1089]: "While the courts have undoubted power to declare a [15 Cal. It recounts the progress, delays, setbacks, and politics during the design and construction of a new, safe bridge to re-complete the connection across the Bay between San Francisco and Oakland. ), Likewise, regarding section 14130, subdivision (a)(4), the court concluded: "In section 14130, subdivision (a)(4), the Legislature finds that '[w]ithout the ability to continue a stable contracting out program, the department will not be able to perform project delivery adequately, competently, or satisfactorily.' 6, As this court stated in Methodist Hosp. Professional Engineers in California Government (PECG) is a union representing engineers and related professionals employed by the state of California. (Ferguson v. Skrupa (1963) 372 U.S. 726, 729 [83 S. Ct. 1028, 1030, 10 L. Ed. 592-593; Williams, supra, 7 Cal.App.3d at pp. fn. PROFESSIONAL ENGINEERS IN CALIFORNIA GOVERNMENT is a California Non-Profit Corporation - Ca - Mutual Benefit filed on April 29, 1964. Workers v. Ohio State Univ. (a)(2)), and on legislative encouragement of timely private contracting for state highway projects to generate maximum employment and business opportunities ( 14130, subd. (Maj. (a).) 141, 728 P.2d 211] (statute permitting admission of written statements in lieu of non-eyewitness testimony at preliminary hearings); People v. Superior Court (Engert) (1982) 31 Cal. In Salazar, the trial court's injunction was based on "assumptions about the law" that changed when this court filed a new decision. The trial court found Chapter 433 unconstitutional on its face as opposed to unconstitutional as applied. ", Additionally, nothing in the record supports Caltrans's assertions that restrictions on private contracting cause additional expense or safety risks. 3. 463, 382 P.2d 583]; Delaney v. Lowery, supra, [15 Cal. (a)(2), operative until Jan. 1, 1998.) ), In finding that Chapter 433 conflicts with article VII, the majority point to an alleged absence of any empirical evidence that Caltrans is unable to perform the services in question "adequately and competently" through civil service, or that private contracting has resulted and will result in "substantial costs savings or other significant advantages" to the state. Co. v. Wilson, supra, 11 Cal.4th at p. 1252, quoting from California Housing Finance Agency v. Elliott (1976) 17 Cal. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution. Strong operations professional graduated from California State University-Northridge. Rptr. I. III, 3; Mandel v. Myers (1981) 29 Cal. Necessarily under the separation of powers doctrine, however, courts are limited in what they can review to determine the propriety of legislative findings of fact and determinations. 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. 318, 777 P.2d 91] (claim that statute permitted administrative agency to exercise judicial powers); Calfarm Ins. Associate Justice of the Court of Appeal, Fourth Appellate District, Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. It was precisely these findings of fact which the trial court utilized to undermine the legislative findings and to conclude that Chapter 433 was unconstitutional: "In Chapter 433 of the Statutes of 1993, the Legislature has sought to provide defendants with justifications under article VII to implement their administrative and management policies for contracting. Nonetheless, we affirm the Legislature's interpretive efforts unless they are disclosed to be unreasonable or clearly inconsistent with the express language or clear import of the Constitution." Bargaining Unit 9 is represented by Professional Engineers in California Government (PECG). Presiding Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. (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].). There is aQualification Flowchartdepicting the requirements. 2d 349, 353 [55 P.2d 206] [sufficient that statute makes limitation, required by Constitution, by necessary inference from its language].) Respondents' petition for a rehearing was denied July 16, 1997. (In re Rodriguez (1975) 14 Cal. As we explained in a case interpreting another constitutional measure, " we deal with a constitutional provision [Cal. opn., ante, at pp. omitted. The present case involves no withdrawal of a state function, however, and as will appear, the provisions of Chapter 433 are too far-reaching in scope to qualify as an "experiment.". ), FN 4. George, C. J., Mosk, J., Kennard, J., and Benke, J., fn. Plaintiffs observe that this "finding" is both factually unsupported and irrational, as every highway project could be deemed "short term" in the sense that it has a finite term lasting until it is completed. (Delaney v. Lowery (1944) 25 Cal. 462, 464-465 [73 P. 187], italics added.). In the majority's view, the legislative determinations supporting the 1993 enactment of Chapter 433 are insufficient to supplant court findings incorporated in a 1990 judgment which were never challenged on appeal. Click, Professional Engineers in California Government - All Rights Reserved. We do, however, apply the general rule that 'a strong presumption of constitutionality supports the Legislature's acts. Const., art. Fund, supra, 30 Cal.2d at pp. as amended June 24, 1993, pp. (a)(5). The majority fail to acknowledge this precedent. . 2930-2931]) and our own California case law (Legislature v. Eu, supra, 54 Cal.3d at p. 524; Buhl v. Hannigan, supra, 16 Cal.App.4th at pp. As the Court of Appeal dissent indicates, this provision seems to contemplate Caltrans's use of private contracting even if it is able to use new civil service employees productively. In the majority's view, the supposed lack of any such evidence before the Legislature is significant since here the trial court's findings to the contrary were supported by one study purporting to show that the cost of contracting was substantially greater than the cost of using civil service staff. those who attack the statute, to prove they do not. 10. ), The dissent next analyzed the four principal substantive changes in Chapter 433 on which the majority relied as allowing Caltrans to contract various work privately without proof of cost savings or added efficiency. 4. 2d 599] (Professional Engineers), the Court of Appeal held that, on an experimental basis, the state might properly release a former function in favor of "privatization" without offending civil service principles. 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." Rptr. (See Professional Engineers, supra, 13 Cal.App.4th at pp. This position does not require Senate confirmation and the compensation is . UPDATED JANUARY 11, 2023 - NCEES is still seeking licensed mechanical engineers to participate in a professional activities and knowledge study (PAKS) for the PE Mechanical exams. 4th 572] maintaining an inadequate level of civil service staff, rather than from any legitimate lack of available or obtainable qualified personnel. Moreover, as Professional Engineers, supra, 13 Cal. From time to time before adopting Chapter 433, the Legislature had enacted provisions governing the state's authority to contract with private entities. (Amwest, supra, 11 Cal.4th at pp. 487, 624 P.2d 1215] [holding that the State Employer-Employee Relations Act did not conflict with article VII or the merit system mandate].) fn. at p. In Riley, this court stated that the true test of whether contracting outside civil service is permissible, is "whether the services contracted for, whether temporary or permanent, are of such a nature that they could be performed by one selected under the provisions of civil service." ), [3c] Does Chapter 433 contain factually supported findings that would excuse noncompliance with the civil service mandate? " (Spiritual Psychic Science Church v. City of Azusa, supra, 39 Cal.3d at p. 514, italics added, and cases cited therein.) 3d 361, 368 [220 Cal. Co. v. Wilson (1995) 11 Cal. 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. In September 1993, after the Legislature passed Chapter 433 amending and adding to section 14130 et seq., Caltrans took the position that these changes undermined the trial court's injunction and related orders and justified their dissolution. FN 1. v. Williams (1970) 7 Cal. The sole aim of the act is to prohibit appointments and promotion in the service except on the basis of merit, efficiency, and fitness ascertained by competitive examination.' " (State Compensation Ins. Subdivision (b) of that section expressed the legislative intent to allow Caltrans to contract privately for professional and technical services "whenever the department is inadequately staffed to satisfactorily carry out its program [of project development] in a timely and effective manner.". ["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."]. 135-136. The determination, contained in section 14130, subdivision (a)(5), that the use of private consultants to assist in project delivery is a new state function, is not a factual determination. 701] (statute prohibiting employer from regulating political activities of employees); Elliott, supra, 17 Cal.3d at p. 594 (local election requirement for low-rent housing projects). As plaintiffs observe, " there is no evidence in the record to support [15 Cal. As the Court of Appeal dissent observed, this provision also seems to conflict with the constitutional civil service mandate by authorizing Caltrans to contract work privately on locally funded projects "even if additional civil service staff could be hired to perform it as cheaply and as promptly.". [Citations.]" 2015-12-21, 10:17 AM - Flash Flood in the Northern California, Sacramento and Placer Counties until 12:15 PM. 4th 578] legal analysis. 477, 490; Matter of Application of Miller, supra, 162 Cal. Refugees pursuant to section 1157 of title 8 of the United States Code; Those granted asylum by the Secretary of Homeland Security or the Attorney General of the United States pursuant to section 1158 of title 8 of the United States Code; or. That subdivision provides: "(d) In furtherance of the Legislature's intent to encourage contracting out by the department, the department shall not be required to utilize state employees to perform all engineering and related services to the maximum extent required to meet the goals of this article. fn. Habtamu has successfully . Rptr. 4th 407, 415-416 [9 Cal. "[U]nder the doctrine of separation of powers neither the trial nor appellate courts are authorized to 'review' legislative determinations." 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." This court continued: "That presumption has been phrased differently over the years, but its import remains clear. 433.) Rptr. 2d 453, 461-462 [202 P.2d 38, 7 A.L.R.2d 990].) Professional Engineers in California Government: 80: 10: California Association of Professional Scientists: 80: 11: Service Employees International Union: 80: 12: International Union of Operating Engineers: 80: 13: . (Lockard v. City of Los Angeles, supra, 33 Cal.2d at pp. 1084.) This was much more than a huge design and construction project. Toppin Professional Engineers in California Government 455 Capitol Mall, Suite 501 Sacramento, CA 95814 Moreover, " California courts have held that constitutional and other enactments must receive a liberal, practical common-sense construction which will meet changed conditions and the growing needs of the people. 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. Indeed, even if empirical evidence were required to validate the Legislature's action, there is no doubt it existed in this case. ADDED JANUARY 11, 2023 - Effective January 1, 2023, applicants and licensees are required to provide the Board with a valid email address (if they have one) and to notify the Board within 30 days of any change of their email address. (f), p. ), In short, the Riley decision and its progeny seem typical of the restraints many other jurisdictions, including the federal government, have imposed on private contracting. 3d 805, 814-815 [258 Cal. To hold otherwise would invite chaos. Section 14133, subdivision (a), provides that the "personal services contracts" provisions of section 19130 (discussed in the following paragraph) [15 Cal. [15 Cal. 433, 13, subd. 4th 1243 at page 1252 [48 Cal. ), In CSEA, the appellate court upheld the facial constitutionality of legislation ( 19130, subd. Free Sch. PECG members mentor students, help organize science fairs, and serve as judges with the tough job of deciding the best projects each year. The contracts are intended to supplement the work of civil service staff (see 14130, subd. 2d 481, 484 [171 P.2d 21, 166 A.L.R. 4th 589], We must first look to what was decided. Rptr. Rptr. 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.' Sess.) The majority have, in my view, reversed the standard by which the Legislature's findings and determinations are reviewed. Factually unsupported legislative findings cannot supplant the findings incorporated in a final court judgment. (Gov. 0y850h%Z2#B 0\$%R*J sN4fu{]2f3X1)(Khx*pz"`Xnhr{so 3>leWp l>9w+ PECG maintains offices in Sacramento, San Francisco, and Los Angeles (Glendale) to service members in 17 geographical Sections. Telework Stipend Agreement Program Agreement with Professional Engineers in California Government reached 10-1-2021: 2020-07-01T07:00:00Z: 05 - Addenda and Side Letters: 2022-07-01T07:00:00Z: Professional Scientific. Rptr. The trial court used similar factual conclusions elsewhere in its order as well. Citizenship nor California residency is required for licensure; however, disclosure of your Social Security Number or Individual Taxpayer Identification Number is mandatory. 568-569), legislative findings purporting to contradict or abrogate express judicial findings of fact evidencing a violation of a constitutional mandate such as article VII are subject to [15 Cal. Services contracted for shall not cause the displacement of any permanent, temporary, or part-time employee of the department. at p. By adopting Chapter 433, the Legislature has made clear [15 Cal. Remarks. When it has made such judgments, we will not disturb them unless they are inherently improbable or unreasonable." Accordingly, the court ruled the private contracts invalid. FN 8. 846-847.) 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. as amended June 24, 1993; Sen. Appropriations Com., Fiscal Summary of Sen. Bill. 1991) 947 F.2d 787, 789 [federal procurement rules require agencies to acquire goods and services at lowest possible cost to taxpayer]. Years before the enactment of Chapter 433, the Legislature, finding that changes in federal, state, and local revenues and the growing private participation in state highway construction can result in significant fluctuations in project development workload, determined it was in the public interest for Caltrans to maintain a more stable work force and to avoid the costly process of short-time hiring and layoff while still responding in a timely manner to funding opportunities and uncertainties. & Hy. Therefore, I attached my resume by way of application. 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. 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. 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." www.pecg.org. As the Court may judicially notice, the inadequacy of civil service staff to timely deliver the workload of highway projects has been traceable, not to a lack of available or obtainable personnel qualified to perform the work, but to defendants' policy and practice since the 1980s of maintaining civil service staff at a level inadequate to perform the workload and in contracting privately for the portion of the workload exceeding the staff's capacity. [] [] The legislative finding in subdivision (a)(4), conclusively establishing the inadequacy of civil service to perform the project delivery workload, is clearly wrong and cannot constitutionally justify defendants' contracts for project development services." (See Civil Service Note, supra, 55 Wash. L.Rev. Even were we to conclude, for purposes of argument, that Chapter 433 contains express or implied findings to the effect that Caltrans is unable to perform the services in question "adequately and competently" through civil service, or that private contracting has resulted and will result in substantial cost savings or other significant advantages to the state, these findings, standing alone and without any apparent evidentiary or empirical support, would be insufficient to supplant the trial court's express findings to the contrary. Practices Com. 3 Rather, the trial court concluded the Legislature's findings of fact in Chapter 433 were palpably erroneous and inconsistent with article VII because the court took judicial notice of the truth of its previous factual findings. v. State Bd. 710.) Yet it is paradoxical for the majority to acknowledge that the results of the cost-comparison study mandated by Chapter 433 (which the majority concede was intended to help determine the economies of private contracting) "could well assist" Caltrans in making such a showing, while at the same time holding that Caltrans is not entitled to relief before such a study is performed. 4.) App. Because reasonable minds obviously could differ and did differ over the economies of contracting, it is only fair to conclude that reasonable minds may differ as to the reasonableness of Chapter 433 and its plan for ensuring timely and cost-effective project delivery. ", [1] As the Court of Appeal majority recognized, granting, denying, dissolving, or refusing to dissolve a permanent or preliminary injunction rests in the sound discretion of the trial court upon a consideration of all the particular circumstances of each individual case, and the trial court's judgment will not be modified or dissolved on appeal except for an abuse of discretion. Code, 18500 et seq.) (Riley, supra, 9 Cal.2d at p. 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. opn., ante, at pp. (b)), on legislative directions that Caltrans not consider locally funded work in determining staffing needs ( 14130.2, subd. 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. (b).) Recent legislation authorizes a court to modify or dissolve an injunction or temporary restraining order "upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order." (f), operative until Jan. 1, 1998, 14130.1, subd. 1503] (Riley); California State Employees' Assn. To accomplish this, PECG supports and sponsors programs that promote Science, Technology, Engineering and Mathematics (STEM). (Stats. 1984) 454 So. They explore the challenges and successes in building and rebuilding major infrastructure projects. The title acts are Agricultural, Chemical, Control Systems, Fire Protection, Industrial, Metallurgical, Nuclear, Petroleum, and Traffic Engineering. I conclude that the trial court erred in rejecting the factual findings of the Legislature, and that neither the trial court nor this court may reject such findings except under very limited circumstances not present here. They cannot, therefore, become the basis through the mechanism of judicial notice. In any event, Caltrans fails to indicate whether these studies were [15 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." Caltrans cites various sources in support of its position that the constitutional civil service mandate was not intended to restrict private contracting. 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. 1568. Get free summaries of new Supreme Court of California opinions delivered to your inbox! 4th 836, 850 [39 Cal. FN 6. III. For items not listed here, please contact CalHR Labor Relations. Rptr. The trial court's earlier [15 Cal. The documents and information submitted with the application must substantiate that the requirements have been met. The new section states no facts to establish those contracts were exempt from the constitutional restriction on private contracting. We conclude that Chapter 433 contains no express or implied findings sufficient on their face to justify dissolving the trial court's injunction. James has 3 jobs listed on their profile. (a)) that allows the state to contract for "personal services" to obtain cost savings, if it can achieve these savings without ignoring other applicable civil service requirements (e.g., use of publicized, competitive bidding, no undercutting of state pay rates, no displacement of state workers or infringement of affirmative action plans, and no overriding public interest in having the state perform the function). ]", Subdivision (d) of section 14130 arguably can be read as contradicting such an implicit provision of economic savings. Caltrans froze the hiring of new employees, began to terminate limited term appointments, and called for a 50 percent reduction in temporary help to eliminate an assumed "over-staffed condition.". 4th 580] with previous legislative findings regarding the need for additional contracting flexibility to ensure timely and cost-effective project delivery, fn. [Citations.]" ", Under the rule of Lockard and Stevenson, the trial court's prior factual findings when made could not properly be the basis upon which to find erroneous the legislative conclusions set forth to support Chapter 433. 363, 364 ["The inclusion of independent contractors is of vital importance as it cuts off a wide area of possible subversion of the civil service system."].). Preliminarily, we observe that the trial court's injunction of April 17, 1990, has become final, and it binds the parties to this litigation unless Chapter 433 provides ground for dissolving it. " (Amwest, supra, at p. 1252, quoting Elliott, supra, at p. As explained below (post, pt. [Citations.] " (Amwest Surety Ins. It allocated funds previously authorized for private contracting to avoid disruptions of work in progress, to avert delay in projects involving [15 Cal. Although many of these provisions remain in effect, Chapter 433 has supplemented them. 397.) Certainly, Caltrans points to no studies submitted to the Legislature indicating that private contracting would save the state time or money in project development. 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. [FtdI6B'[` M5qGw$u2J^tB}cs #""p hs@4p5@\]mf/;\=\zk/iJC3a3M$7E= t6l?tX-Fi'~JFJIo#sEiQ:WqO~;Km?EK~\%~i,DLzau[HN][4]h=$[RsW=XTjKuu/>_7#_%s (a); see Cal. App. We consider here important questions of law and policy arising under the state Constitution's civil service provision (Cal. 1515 S Street, North Building, Suite 500 Secretary, Government Operations Agency Yolanda Richardson Sacramento, CA 95811 Director . 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.' [Citations.]" It was [15 Cal. 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. Acc. 180. ), Finally, as we have explained, contrary to Caltrans's assumption, the civil service mandate does not preclude outright privatization of an existing state function. View job description, responsibilities and qualifications. (Id. 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