Rptr. As a result, [Caltrans] purposely create[s] a need for 'a stable contracting out program' to timely deliver transportation projects, institutionalize the use of contracting in project delivery, and displace civil service employees from the function they have historically performed, in violation of article VII.". The practice acts are Civil, Electrical, and Mechanical Engineering. The constitutionality of Chapter 433 is a question of law; hence, "we are not bound by evidence presented on the question in the trial court. David I. Kelly, Douglas L. Kendrick, Anthony T. Caso, Sharon L. Browne, Francis F. Chin, Nossaman, Guthner, Knox & Elliott, Stephen N. Roberts, Stanley S. Taylor, Patricia Lee Connors, Robert D. Thornton, Kennedy & Wasserman, Wendel, Rosen, Black, Dean & Levitan, R. Zachary Wasserman, Bertha Ontiveros, Best, Best & Krieger, Steven C. DeBaun, Zumbrun & Findley, Ronald A. Zumbrun, John H. Findley, Woodruff, Spradlin & Smart, Kennard R. Smart, Jr., M. Lois Bobak and Jason E. Resnick as Amici Curiae on behalf of Defendants and Appellants. We also observe that, by its very nature, the civil service mandate does not readily lend itself to broad legislative exemptions. Annual Leave Comparison Chart. In any event, Caltrans fails to indicate whether these studies were [15 Cal. ), Because of the largely implicit nature of the private contracting restriction, we must discern its scope from judicial decisions applying it in [15 Cal. opn., ante, at p. 1515 S Street, North Building, Suite 500 Secretary, Government Operations Agency Yolanda Richardson Sacramento, CA 95811 Director . Habtamu is a civil engineer with over ten years of experience in water resources engineering, which includes project analysis, design and management. Caltrans, relying on the new provisions, asked the court to dissolve the injunction. ( 14130, subd. ), Thus, when read it context, it is clear that Turner does nothing to undermine the general rule of deference afforded to a legislative body's factual findings. 2d 126, 134 [69 P.2d 985, 111 A.L.R. (a)(4)), and defendants use private consultants interchangeably with civil service staff to provide project design and development, construction inspection, locally funded, seismic retrofitting, and other project delivery services. [N]o new methods of managing, financing, or otherwise performing project delivery work distinguish the work performed by private consultants from that historically and presently performed by civil service staff. Conspicuously absent from the legislative materials are any studies, reports, or testimony that would contradict the trial court's specific fact findings regarding the absence of affirmative proof of any cost savings or other justification for private contracting. 2d 28, 39 [123 P.2d 488].). Leaders elected by PECG's 13,000 members establish PECG's policies. 2d 625, 627 [59 P.2d 139, 106 A.L.R. 853. [1], In 1978, PECG fought for and won the exclusive right to represent engineers and related classes (architects, landscape architects, land surveyors, environmental specialists, engineering geologists, etc. on Transportation, Rep. on Sen. Bill No. Caltrans suggests that the "nature of the services," and "new state function" tests are difficult to apply and can lead to anomalous results. 3d 492, 524 [286 Cal. ), the Legislature cannot simply override this factual finding by issuing a general legislative declaration that purports to cover the entire area of private contracting. 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. Rptr. [3a] We turn then to the question whether Chapter 433 affords an independent basis for overturning the trial court's injunction and enforcement orders. ", Only one provision of Chapter 433 appears drafted with a view toward demonstrating compliance with Riley. (Id. Even when applying "careful scrutiny," however, this court stated: "At the same time, we are mindful that it is our duty to uphold a statute unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity. Unless a statute's unconstitutionality " 'clearly, positively, and unmistakably appears' " (Calfarm Ins. App. 4th 836, 850 [39 Cal. at p. 1254, italics added.) Caltrans raises the preliminary question whether we should overrule the substantial body of case law holding that article VII restricts private contracting and in this manner free Caltrans from its obligations under the 1990 [15 Cal. (b)), on legislative directions that Caltrans not consider locally funded work in determining staffing needs ( 14130.2, subd. Under these circumstances, the legislative judgment may not be set aside. View SATENDRA SHARMA'S profile on LinkedIn, the world's largest professional community. at pp. Thus, merely characterizing work as "short-term" does not justify using private contractors to perform it. at p. (1981) 85 A.D.2d 733 [445 N.Y.S.2d 812, 813]; Carter v. Ohio Dept. Early appellate decisions held that the civil service mandate forbids private contracting, whether for permanent or temporary services, skilled or unskilled, if those services are of a kind that persons selected through civil service could perform "adequately and competently." [Citation.]" Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal. 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. 2d 176].)" California PE Laws and Board Rules Examination (Take Home Examination), application filing process for requesting a waiver of the FE exam, Business and Professionals Code section 6755, Title 16, California Code of Regulations section 438(a), Business and Professions Code section 6759, Title 16, California Code of Regulations section 428, Examination Special/Religious Accommodations, Information for Military Personnel and Their Spouses/Domestic Partners. For example, the ballot arguments favoring the adoption of the original civil service mandate in 1934 referred to its purpose "to prohibit appointments and promotion in State service except on the basis of merit, efficiency and fitness ascertained by competitive examination." App. If the constitutional civil service mandate is to retain any vitality as a protective device against the deterioration of the civil service system through private contracting, we must hold that Chapter 433 represents an invalid or ineffectual attempt to circumvent that constitutional mandate. 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. (c), operative until Jan. 1, 1998, 14130.1, 14130.2. Rptr. (See Pacific Legal Foundation v. Brown, supra, 29 Cal.3d at pp. Thus, on April 17, 1990, the court issued a permanent injunction prohibiting Caltrans from (1) contracting privately for engineering and inspection services for highway projects unless the work was to be performed in compliance with the then existing criteria set forth in section 14101 and former section 14130 et seq. If a Civil Engineer applicant has submitted fingerprints with a previous application to the Board, resubmittal with a subsequent application is required if it has been24 months or more since the last submittal of fingerprints. 846-847.) ), "[N]either a finding of fact made after a contested adversary hearing nor a finding of fact made after any other type of hearing can be indisputably deemed to have been a correct finding [;] '[u]nder the doctrine of judicial notice, certain matters are assumed to be indisputably true, and the introduction of evidence to prove them will not be required.' In fact, I conclude that a contrary interpretation is difficult to reconcile with the ballot argument originally expressed in the predecessor to article VII, "to promote efficiency and economy in state government." ]", Subdivision (d) of section 14130 arguably can be read as contradicting such an implicit provision of economic savings. 4th 407, 415-416 [9 Cal. 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. 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. This is elementary. What are the Time Limits for Reinstatement? In preparation for completing my Bachelor of Science degree in Civil Engineering, I took a break from formal studies and worked for 2 years as a land surveyor in Atlanta, Georgia (FEB 1986 - JAN . (^qq%q%ARm,k\tESrEq\?bjrA!9 Presuming the Legislature acted with integrity and with the desire that Chapter 433 be valid and fall within constitutional bounds (Beach v. Von Detten, supra, 139 Cal. 4th 595] 25 Cal.2d at pp. (Lockard v. City of Los Angeles, supra, 33 Cal.2d at p. 461; Barenfeld v. City of Los Angeles, supra, 162 Cal.App.3d at p. PECG is a big supporter of STEM/STEAM programs, including science and engineering fairs, all over the state. FN 7. 574.) In Caltrans's view, the rules these cases announced are unsupported by the bare language of the civil service mandate and constitute further judicial legislation. Principal Engineer Job Los Angeles California USA,Science Com. [Citation.]". 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. Accordingly, there is no basis for the majority's unacknowledged abandonment of the long line of authorities I have previously discussed. 1209 (1993-1994 Reg. In the dissent's view, each statutory change conflicts with the earlier findings and conclusions in the trial court's injunction and orders. (Italics added.). 107, 1, subd. (Professional Engineers, supra, 13 Cal.App.4th at p. (a)(1)). PECG members mentor students, help organize science fairs, and serve as judges with the tough job of deciding the best projects each year. PROFESSIONAL ENGINEERS IN CALIFORNIA GOVERNMENT, Charging Party, v. STATE OF CALIFORNIA (DEPARTMENTS OF PERSONNEL ADMINISTRATION AND TRANSPORTATION), Respondent.))) FN 8. App. The majority opinion has the strong potential to hamstring the Legislature every time its proposed legislation touches upon a "constitutional mandate. #CAStateEngineers. (a)(4), as contained in Ch. 1209, Stats. 592-593; Williams, supra, 7 Cal.App.3d at pp. 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. 4th 579] need not be verified by current empirical proof].) 1252.) 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." 2d 21, 890 P.2d 43] (Salazar).) 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.". FN *. A requirement that the state must expand its work force whenever -and however temporarily-its workload expands, no matter what the cost or how much cheaper the service would be if contracted out, would be the antithesis of such a goal. (See Kennedy v. Ross (1946) 28 Cal. Human Resources Manual - CalHR - California 5, In determining whether legislation is facially invalid, it is settled that "[a] facial challenge to the constitutional validity of a statute considers only the text of the measure itself, not its application to particular circumstances." (Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 4th 578] legal analysis. as amended July 14, 1993). To hold otherwise would invite chaos. Proc., 533; accord, Civ. As we have seen, applicable case law allows the state to contract privately if the civil service is unable to perform the work "adequately and competently." Sess.) 2d 12, 906 P.2d 1112]. When properly viewed, Chapter 433 represents a constitutionally valid effort by the Legislature to encourage private contracting in furtherance of the objectives of efficiency and economy in state government. (3) Contrary to Caltrans's contention, new section 14130.1, characterizing seismic retrofitting services as a "short-term workload demand," fails to constitute adequate justification for private contracting because it fails to consider the civil service staff available and obtainable to perform the work. 3d 348, 388-389 [261 Cal. hLj0WDOUadLvQzkfHLz$5p&y6r8We%X^-+nE6V{NHH9#xU$7A"np#! The majority cite Turner Broadcasting System, Inc. v. FCC (1994) 512 U.S. 622 [114 S. Ct. 2445, 129 L. Ed. 463, 382 P.2d 583]; Delaney v. Lowery, supra, [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. (Amwest Surety Ins. Const. There is nothing in the record to refute the implicit legislative finding that sufficient additional staff could not be obtained on a cost-effective basis." Rptr. ", The Court of Appeal next addressed the trial court's conclusion that section 14137 (directing Caltrans to continue contracts in force or awarded on or before July 1, 1993) is invalid because it purports to override the court's injunction without stating facts establishing the contracts at issue satisfied the civil service mandate. Sess.) 3d 951, 957 [232 Cal. Moreover, as Professional Engineers, supra, 13 Cal. Plaintiffs, contending that Chapter 433 did not authorize Caltrans's scheduled contracting, sought an order holding Caltrans in contempt for violating the 1990 injunction. 2d 453, 461 [202 P.2d 38, 7 A.L.R.2d 990], wherein this court stated: " '[T]he rule is well settled that the legislative determination that the facts exist which make the law necessary, must not be set aside or disregarded by the courts, unless the legislative decision is clearly and palpably wrong and the error appears beyond reasonable doubt from facts or evidence which cannot be controverted, and of which the courts may properly take notice.' ), 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. Remote work options will be considered for this position. 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. In any event, as the Court of Appeal dissent notes, this "cryptic" provision contains no basis for modifying the trial court's injunction. 3d 840, 846 [245 Cal. In re Harris (1989) 49 Cal. 851-853.). ), [3c] Does Chapter 433 contain factually supported findings that would excuse noncompliance with the civil service mandate? FN 14. 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. With these findings in mind, the Legislature granted Caltrans additional flexibility until January 1, 1998, to contract with private engineers for projects involving the seismic retrofitting of highway structures in accordance with statutes enacted following the 1989 Loma Prieta Earthquake and for state transportation projects funded by local resources. ), Responding to the trial court's doubts regarding the supposed "short-term" nature of the seismic safety retrofit program, the Court of Appeal majority reasoned that, although this program may be comparable to any typical Caltrans project, it "has a finite life. (See, e.g., Moradi-Shalal v. Fireman's Fund Ins. First, uncodified section 1 of Chapter 433 recites the Legislature's intent: (1) to allow Caltrans "continued flexibility" to contract privately as needed to assure timely delivery of its projects; and (2) to afford "a new and independent basis upon which to justify contracting out actions.". The Court of Appeal majority reversed the judgment and remanded the matter to the trial court with directions to dissolve its 1990 injunction. 76, 468 P.2d 204] (requirement that minor's parents reimburse costs of appointed counsel in juvenile delinquency proceedings); In re Dennis M. (1969) 70 Cal. Below, we describe the types of employees in the states 21 bargaining units. In many cases, engineers who work for the federal government are exempt from those laws, although federal agencies can set their own rules. 2d 575, 579-582 [184 P.2d 505]; Stockburger v. Riley (1937) 21 Cal. Section 14133, subdivision (a), provides that the "personal services contracts" provisions of section 19130 (discussed in the following paragraph) [15 Cal. 1984) 454 So. Co. v. Deukmejian (1989) 48 Cal. 4th 601] Accordingly, there is a strong presumption in favor of the Legislature's efforts at interpretation. This court has followed this principle in a wide variety of situations. There is nothing before me to show the Legislature was "clearly and palpably wrong" in its findings and declarations. 387].). Rptr. 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. Sess.) 3d 161, 175 [167 Cal. Habtamu Tolossa, Ph.D., P.Eng. - Senior Hydrologic Engineer - LinkedIn ), The majority note that the trial court's 1990 injunction has become final, and that Caltrans has never challenged the trial court's earlier findings and conclusions. California Legislative Council of Professional Engineers Consistent [15 Cal. Co. v. Wilson (1995) 11 Cal. v. Spokane Community Coll., supra, 585 P.2d 474, enforcing Washington's civil service "merit system" legislation to invalidate a private contract despite a substantial cost savings to the state. Clickhereto learn more. Code, 14130, subd. Apart from seeking to abrogate Riley et al., Caltrans raises no challenges independent of Chapter 433 at this time. FN 13. If the Lockard requirements for disregard of the legislative findings and determinations are not met, a court must then accept the facts as found by the Legislature and determine whether, based on those facts, the legislation comports with the Constitution. That is, the challenged legislation did not compel Caltrans to [15 Cal. (FCC v. Beach Communications, Inc. (1993) 508 U.S. 307, 315 [113 S. Ct. 2096, 2102, 124 L. Ed. The majority have, in my view, reversed the standard by which the Legislature's findings and determinations are reviewed. Baxter, J., was of the opinion that the petition should be granted. fn. Sess.) A title authority indicates a proficiency in that field greater than what is required for Civil Engineering licensure. App. Free Sch. The state did not appeal and the decision is final. Before today the rules mandating judicial deference to legislative enactments were firmly established. 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. Governor Newsom Names Sean Duryee CHP Commissioner (Ch. 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." 10. While acknowledging that "courts must give legislative findings great weight and should uphold them unless unreasonable or arbitrary" (maj. As the court observed, "Pursuant to the [new] provisions, [Caltrans] may calculate [its] civil service staffing needs without considering the full workload to be performed, may limit [its] procurement of civil service staff regardless of actual staffing needs or ability to productively use new staff, and [is] required to reinstate contracts for the purpose of fostering employment and business opportunities without regard to the constitutional civil service mandate. of Kennedy, J.). 1209 (1993-1994 Reg. 3d 131, 136 [260 Cal. 847.) Sess.) 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." (The provisions Chapter 433 added are effective only until January 1, 1998, unless extended.) That is, the majority apparently view Chapter 433 as applying to engineering services for project development on a broad, unlimited basis. (Assem. Citizenship nor California residency is required for licensure; however, disclosure of your Social Security Number or Individual Taxpayer Identification Number is mandatory. Rptr. No express or implied legislative findings justify vacating the injunction, [3b] As the Court of Appeal dissent observes, Chapter 433 contains no express or implied legislative findings that would justify vacating the trial court's injunction. 9 (Gov. Rptr. Such restrictions and limitations [imposed by the Constitution] are to be construed strictly, and are not to be extended to include matters not covered by the language used.' Co. v. Wilson (1995) 11 Cal. ), Caltrans asserts supposed policy reasons why we should overrule or disapprove 60 years of settled case law: "As a result [of the existing case law], Californians have had to forego promising new techniques for providing services, ranging from contracting with private contractors to outright [15 Cal. 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. Professional Engineers v. Department of Transportation (1997) - Justia Law 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.". ( 14130, subd. As it neither fails to comply with that mandate nor disregards the constitutional restriction on contracting out, I would not expect it to contain findings which would seek to excuse noncompliance with or disregard of article VII. with arguments to voters, Gen. Elec. Co. v. Yamamoto (1994) 29 Cal. [15 Cal. You can explore additional available newsletters here. 180-181; see also California State Employees' Assn. The doctrine of separation of powers is a precept which is central to our constitutional form of government. Applicants who meet all licensure requirements, including passing the required exam(s), will be issued a license in the branch of engineering for which they applied. 3d 258, 282 [96 Cal. According to the court, this finding could only be based on a study of actual workloads and available staff during particular fiscal years. Caltrans has never challenged the trial court's earlier findings and conclusions regarding its noncompliance with the private contracting restriction. (c). fn. Caltrans also cites a report of the Senate Transportation Committee referring to various conflicting evaluations and studies on the subject of the cost-effectiveness of private contracting (Sen. Transportation Com., Rep. on Sen. Bill No. Code, 18500 et seq.) (See County of Los Angeles v. Legg (1936) 5 Cal. 3d 501, 514 [217 Cal. of Education (1955) 134 Cal. 1209 (1993-1994 Reg. This obligation to exercise independent judgment when First Amendment rights are implicated is not a license to reweigh the evidence de novo, or to replace Congress' factual predictions with our own. [15 Cal. 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. The trial court's earlier [15 Cal. App. 232] (CSEA).) 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[. How then could we plausibly imply that the Legislature in enacting Chapter 433 made an implied finding that contracting out is cost-effective? 593-594, and fn. We are proud of our unprecedented record of delivering for our members. 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.