Caltrans points to no new legal developments, such as scholarly criticism or commentary, or contrary case law in other states, that would cast doubt on the continued vitality of Riley and its progeny. (CSEA, supra, 199 Cal.App.3d at p. Second, the court found that, in any event, the type and amount of project development work Caltrans contracted for 1993-1994 did not correspond to that which the new provisions authorized because it fell outside the seismic [15 Cal. This case is about whether the state must hire new employees to perform such work or may contract out those services under statutory provisions. (a)(2)), and on legislative encouragement of timely private contracting for state highway projects to generate maximum employment and business opportunities ( 14130, subd. (pBOO$< O$<9x,IB%DQATDQAT8)xixJjX,VZ \0u+l0{m.o}ek\=o!mJnmg>MkS\M;{{w~;;wbKW+k` JB Address: 2535 Capitol Oaks Drive, Suite 300. Judges may not substitute their judgment for that of the Legislature if there is any reasonable justification for the latter's action. 107, 1, subd. Christopher R. has 7 jobs listed on their profile. (Spiritual Psychic Science Church v. City of Azusa (1985) 39 Cal. endstream endobj 379 0 obj <>stream Thus, as the majority acknowledge (maj. Rptr. When the right to enact a law depends upon the existence of facts, it is the duty of the legislature, before passing the bill, and of the governor before approving it, to become satisfied in some appropriate way that the facts exist, and no authority is conferred upon the courts to hear evidence, and determine, as a question of fact, whether these co-ordinate departments of the state government have properly discharged such duty. That case involved the total withdrawal of a state function on an experimental basis, requiring no expenditure of state funds. 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. Remarks. 1503] (Riley); California State Employees' Assn. (In re Rodriguez (1975) 14 Cal. 3.) ), Finally, in Professional Engineers v. Department of Transportation (1993) 13 Cal. 2d 355, 896 P.2d 1365] (overbreadth and vagueness attacks on hate crimes statute); Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal. (See, e.g., Producers Dairy Delivery Co. v. Sentry Ins. Sess.) (13 Cal.App.4th at pp. 786, 520 P.2d 10].) 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. II. Full Time position. (See County of Los Angeles v. Legg (1936) 5 Cal. PECG is committed to your success. opn., ante, at p. 569), the majority nonetheless decide that the ordinary deference courts owe to legislative action "vanishes" when "constitutionally protected rights" are threatened and that courts are not foreclosed from exercising "independent judgment of the facts" bearing on an issue of constitutional law (ibid.). We conclude that Riley and its progeny are consistent with article VII's civil service mandate. Caltrans did not appeal that judgment, which is now final. App. Dissenting.-The majority find chapter 433 of Statutes 1993 (Chapter 433) violative of the state Constitution's civil service provision (Cal. Thus, the requirements that courts presume legislative enactments to be constitutional and that such great weight be given to legislative findings that they will be upheld unless they are palpably erroneous, does not mean those findings are placed totally beyond the power of courts to [15 Cal. 3d 1035, 1040 [209 Cal. Article VII, section 1 states: "(a) The civil service includes every officer and employee of the state except as otherwise provided in this Constitution. In so doing, the Legislature has not overridden the superior court's [15 Cal. Responding to the trial court's injunction and orders, Caltrans took some steps to minimize and phase out private contracting during fiscal year 1993-1994. ( 14130, subd. 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. 1252.) 1209 (1993-1994 Reg. h]k0. 2d 481, 484 [171 P.2d 21, 166 A.L.R. 3d 951, 957, this court determined that it must "subject to careful scrutiny any legislation restricting the ability of defendants to cross-examine witnesses whose testimony is offered as evidence of probable cause [at a preliminary hearing]." Second, Caltrans overstates its case substantially in claiming that Riley and its progeny's undue restrictions on private contracting or privatization threaten fiscal responsibility and public safety. 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: . According to Caltrans, former article XXIV was simply intended to restrict appointments and promotions in state service except on the basis of merit and competitive examination, in order to avoid favoritism and the "spoils system" in selecting among existing state employees. Next, the Legislature amended section 14130 to add additional legislative findings and declarations, including the following relevant ones: (1) Use of private "consultants" to supplement Caltrans's workforce has permitted it "to substantially enhance its project delivery," including acceleration of state highway construction projects costing nearly $1 billion. (See CSEA, supra, 199 Cal.App.3d at pp. An applicant for licensure as a Professional Engineer must meet the qualifying experience requirements outlined in Business and Professions Code sections 6751 (c) and 6753 and Title 16, California Code of Regulations section 424. 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. The court also found that Caltrans made no attempt to show these contracts satisfied the criteria for private contracting listed in section 14130. (a)(1)); (2) declaration of a need to be "plan-ready" to maximize use of these funds (former 14130, subd. 2d 818, 828 [142 P.2d 297]), a reasonable construction is that Caltrans is not required to hire all the new staff it can use, but can contract out if economically advantageous. (See Department of Transportation v. Chavez (1992) 7 Cal. As this court has stated in conjunction with legislation alleged to be in violation of article VII, "the presumption of constitutionality accorded to legislative acts is particularly appropriate when the Legislature has enacted a statute with the relevant constitutional prescriptions clearly in mind. Western Cape Government All project management related responsibilities, client liaison, stakeholder liaison, design & tender documentation, managing the project team Transnet projects Engineering Manager, NEC Supervisor, civil and mechanical design engineer Part of the Civil and Mechanical SANRAL projects (Accord, Lundberg v. County of Alameda (1956) 46 Cal. 8 (Gov. What Constitutes a Satisfactory Reference? 817, 621 P.2d 856].) Rptr. 4th 578] legal analysis. We cannot accept Caltrans's legal conclusion that an 'enriched' blend of private contracting to meet responsibilities historically discharged by Caltrans employees creates a 'new state function' within the meaning of that test as explicated in Williams, supra, 7 Cal. 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. of Labor & Industry (1993) 154 Pa.Commw. 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. ( 14130, subd. The survey can be completed in 2040 minutes. 3d 692, 699 [170 Cal. Professional Engineers in California Government (PECG) is the official representative for over 13,000 Bargaining Unit 9 employees, which include engineers, surveyors, architects, geologists and other related professionals. at pp. (a)(1)). FN 6. 134.). 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.' 1988, ch. California pecg.org Joined June 2009. . Would a court passing upon the constitutionality of legislation be permitted to take evidence supporting or opposing the law, as the trial court in effect did here? (b).) 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. Moreover, the contracting authorized by Chapter 433 will not encourage a return to the spoils system of political patronage. The Professional Engineers in California Government represents 14,000 state-employed engineers and related professionals. (Turner, supra, 512 U.S. at p. 666 [114 S.Ct. Leaders elected by PECG's 13,000 members establish PECG's policies. It also puts lives at risk. In order to receive the expedited licensure process, individuals must provide documentation of their refugee, asylee, or special immigrant visa status when submitting their application package. Fund v. Riley (1937) 9 Cal. [Citations.]' 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. App. at pp. Dist. In the dissent's view, the Court of Appeal majority relied exclusively and improperly on an implied legislative finding of cost-effectiveness to permit Caltrans to resume private contracting without requiring it to prove that contracting is more economical or efficient than using state civil service employees. 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. The title authorities exist for two sub-branches of Civil Engineering:Structural EngineeringandGeotechnical Engineering. Courts are neither policymakers nor legislative fact finders. 30.). Const., art. Clearly, however, something more is needed to "trump" a trial court's specific findings of fact and final adjudication of a constitutional violation of article VII than bare legislative declarations. I agree with Justice Ardaiz's analysis that, for purposes of evaluating a constitutional challenge to legislation, a court may not take judicial notice of the truth of its earlier findings of fact. 4th 585, the Legislature had enacted an urgency measure authorizing Caltrans to contract with private developers to construct and operate tollways under lease agreements with the state. Finding that none of Caltrans's policy arguments favoring reconsideration of Riley has substantial merit, we therefore decline to overrule or disapprove Riley and its progeny. 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. As such, they may not be enjoined absent a showing the statute is improperly applied contrary to its terms or in derogation of the civil service mandate." FN 2. FN 1. 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. Caltrans suggests that the "nature of the services," and "new state function" tests are difficult to apply and can lead to anomalous results. (a)(5)), state highway project development is not a "new state function" within the exception recognized by Williams, supra, 7 Cal.App.3d at page 397. The legislative findings and directives comprising the justifications, however, are obviously erroneous, unreasonable and inconsistent with the constitutional civil service mandate. (Dis. Such interrelationship, of course, lies at the heart of the constitutional theory of 'checks and balances' that the separation of powers doctrine is intended to serve. 397-399) and the "cost savings" rule (see CSEA, supra, 199 Cal.App.3d at pp. App. ), 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. ), There is a "strong presumption of the constitutionality of an act of the Legislature." (Id. In Patitucci, this court noted that the constitutional provision was not completely unambiguous; reasonable minds could differ as to whether a particular mixed income development constituted a low-rent housing project. As Caltrans readily concedes, it has always been responsible for project development of state highway projects. 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. This position does not require Senate confirmation and the compensation is $275,004. Co. v. Wilson (1995) 11 Cal. 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. 3d 361, 368 [220 Cal. III, 3; Mandel v. Myers (1981) 29 Cal. Rptr. [Citation. 4th 553] the goals of this article," or to hire new staff "to an internal level that matches its ability to assimilate and productively use new staff." This position does not require Senate confirmation and the compensation is . 4th 588] statute invalid, when it appears to them in the course of judicial action to be in conflict with the constitution, yet they can only do so when the question arises as a pure question of law, unmixed with matters of fact the existence of which must be determined upon a trial, and as the result of it, it may be, conflicting evidence. That is, the majority apparently view Chapter 433 as applying to engineering services for project development on a broad, unlimited basis. (See maj. 4th 571, 581 [7 Cal. "[W]herever possible, [this court] will interpret a statute as consistent with applicable constitutional provisions, seeking to harmonize Constitution and statute. I disagree. 2d 453, 461 [202 P.2d 38, 7 A.L.R.2d 990]; see also American Bank & Trust Co. v. Community Hospital (1984) 36 Cal. 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." Rptr. v. State Bd. The results of this online survey will be used to update the content of the PE exam which is used throughout the United States. 3d 840, 846 [245 Cal. Although the Court of Appeal majority concluded that Chapter 433 alone justified dissolution of the 1990 injunction, we disagree, believing the principles announced in prior case law require a contrary holding. (^qq%q%ARm,k\tESrEq\?bjrA!9 Neither the passage of time nor intervening authorities have lessened the applicability of these legal principles. "However, this question is not presented by Chapter 433. 461-462; see also Amador Valley Joint Union High Sch. Baxter, J., was of the opinion that the petition should be granted. 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. 232] (CSEA).) [Citations.] 4th 1211, 1219 [4 Cal. ), (2) Caltrans's use of private consultants to assist in project delivery "is a new state function and does not duplicate the existing functions of the department." Sess.) There is aQualification Flowchartdepicting the requirements. This court has followed this principle in a wide variety of situations. 305] (Williams). Neither the Legislature nor the courts can satisfy article VII by the mere expediency of adopting unsubstantiated findings that purport to sustain or create an exception to the constitutional provision. Yet, as the majority also notes, the section does appear to "find" private contracting necessary to permit Caltrans to perform its project delivery in a timely manner. (Amador Valley Joint Union High Sch. Because the discussion of the prior and current litigation would be largely meaningless without knowledge of the underlying legal principles, we will [15 Cal. Professional Engineers in California Government (PECG) 10 . 180-181 ["petitioners must demonstrate" facial invalidity of challenged law].) (Sen. Transportation Com., Rep. on Sen. Bill No. 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." at p. 1254, italics added.) [15 Cal. 7. XXIV, 4, subd. 2d 832, 839 [313 P.2d 545] (whether sales tax levy was subject to referendum); Busch v. Turner (1945) 26 Cal. as amended June 24, 1993; Assem. opn., ante, at p. 615. 4th 8, 14, fn. (Ante, at pp. (See People v. Globe Grain & Mill Co. (1930) 211 Cal. Com. ), 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. FN 8. 9 However, when read with a view toward finding the statute constitutional (see Miller v. Municipal Court [15 Cal. Rptr. 850.) Thus, as previously explained (ante, at pp. [Citation.] [Citations.]" [Citations.]' ( 14130.2, subd. those who attack the statute, to prove they do not. (Riley, supra, 9 Cal.2d at p. 135 [enjoining state agency from retaining private attorney]; see also Burum v. State Compensation Ins. 4th 765, 780 [35 Cal. 1 In other words, the Legislature concluded it is more efficient and less expensive not to expand state government when certain types of road and bridge engineering services can be performed by private consultants. 3d 188, 200-201 [182 Cal. FN *. Consistent with the previously discussed rules of judicial review of legislative enactments, we presume the facts and circumstances support the Legislature's implied findings absent contrary evidence." 3d 840, 844 [245 Cal. (Id. Section President 2nd Term at PROFESSIONAL ENGINEERS IN CALIFORNIA GOVERNMENT David Tanouye, P.G. ", Former section 14130 et seq. [establishing criteria for selection of contractors, selection process, and rules against conflicts of interest and unlawful activity].) & Hy. For the judiciary to litigate and reject the factual conclusions of the legislative branch supporting its policy determinations-and even to come to opposite conclusions-strikes at the heart of this delicate structure. 2d 497] (lead opn. 4th 563] injunction. 1018.)" 1, 488 P.2d 161], "We are guided in our inquiry by well settled rules of constitutional construction. The section then contains the legislative conclusion that "Without the ability to continue a stable contracting out program, the department will not be able to perform project delivery adequately, competently, or satisfactorily, thereby necessitating the use of private consultants to supplement its in-house staff.". In other words, the trial court cannot do indirectly what it is not permitted to do directly. 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. App. 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. (FCC v. Beach Communications, Inc. (1993) 508 U.S. 307, 315 [113 S. Ct. 2096, 2102, 124 L. Ed. [15 Cal. 846-847.) 98-99; Becker, With Whose Hands: Privatization, Public Employment, and Democracy (1988) 6 Yale L. & Pol'y Rev. I would affirm the judgment of the Court of Appeal. Practices Com., supra, 11 Cal.4th at p. 4th 1746, 1749 [50 Cal. ), In CSEA, the appellate court upheld the facial constitutionality of legislation ( 19130, subd. FN 4. (a); see Cal. Civil Engineer Applicants During a three-day bridge closure, Myers and Caltrans teams demolished and removed a football field-size bridge, rolled in a new pre-constructed replacement span, and finished the amazingly challenging job eleven hours ahead of schedule! "); People v. Globe Grain & Mill Co., supra, 211 Cal. California Federation of Interpreters, Local 39000 TNG-CWA v. Orange County Superior Court, et al. 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. The trial court also found that Caltrans undertook private contracting as a direct result of "gubernatorial/executive branch policy against the expansion of state government," which required Caltrans to "balance[] and temper[]" its requests for funding for additional staff by contracting with private entities, without regard to whether qualified persons were actually available for civil service employment or whether Caltrans could assimilate and train them in a timely manner. Click here for information and documentation examples. [15 Cal. Finally, section 19130 (which was upheld as consistent with article VII in CSEA, supra, 199 Cal.App.3d 840) governs "personal services contracts" and essentially codifies and interprets the "cost savings," "new state function," and "nature of the services" tests of the decisional law (see ante, at pp. (a)(2).). Although the trial court stated that section 14137 raises a "serious question" about a violation of the separation of powers doctrine, it is clear that the trial court's decision did not rest on this point. 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. 1253-1255. (1 Witkin, Cal. 2d 245, 828 P.2d 147].) (c), 14130.2, subd. (California State Employees' Assn. 1209 (1993-1994 Reg. fn. Information for Military Personnel and Their Spouses/Domestic Partners, UPDATED FEBRUARY 22, 2023 The Civil Seismic Principles Exam will continue to test on the 2019 California Building Code for the remainder of 2023. Caring for the world, one person at a time has inspired and united the people . 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. (Italics added, fn. Code, 143, subd. When the Constitution has a doubtful or obscure meaning or is capable of various interpretations, the construction placed thereon by the Legislature is of very persuasive significance.' Const., art. 16, 474 et seq. Const., former art. v. State of California (1988) 199 Cal. We do, however, apply the general rule that 'a strong presumption of constitutionality supports the Legislature's acts. We therefore limit our present discussion to the effect of Chapter 433 on the trial court's injunction and subsequent enforcement orders. Significantly, the same legislative report frankly acknowledged that, because the proposed legislation purported to expand by statute the authority for private contracting, "questions" had been raised regarding its constitutionality, and it was "unclear" what effect, if any, the proposed legislation would have on this contracting. No. 4th 1548, 1564-1565 [8 Cal. 851-853). 232] (CSEA).) 135.) (a)(3)). 2d 606, 618-620 [110 P.2d 1036] [same]; Williams, supra, 7 Cal.App.3d at pp. In the case that the NCEES Record does not provide the information the Board needs to determine if an applicant meets the requirements for licensure in California, the applicant will be asked to provide additional information. Before examining the provisions of Chapter 433, we first review the primary preexisting provisions, as they are pertinent to an understanding of the intent and effect of Chapter 433. on Transportation, Rep. on Sen. Bill No. Rptr. 4th 593] Cal.Rptr.2d 837, 913 P.2d 1046].) opn., ante, at p. 565), "we deal with a constitutional provision of a kind, similar to many others, which necessarily and over a period of time will require judicial, legislative and administrative construction." Collectively exercising their "independent judgment of the facts," the majority ultimately determine there is no "substantial" evidence to support the Legislature's enactment of Chapter 433.
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