XIII A] of a kind, similar to many others, which necessarily and over a period of time will require judicial, legislative and administrative construction. Given the pressing demands upon California to meet its growing transportation needs and the funding and safety concerns that support timely project delivery, it behooves this court to uphold legislative experimentation to the maximum extent consistent with article VII of our state Constitution. 2d 93, 95 [285 P.2d 41] [competitive proposals do not produce an advantage in hiring professionals such as architects].). (Maj. 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. In Professional Engineers, supra, 13 Cal. Sess.) Fund v. Riley (1937) 9 Cal. I further conclude that Chapter 433 does not violate article VII of the California Constitution (article VII) and is constitutional on its face. v. State of California (1988) 199 Cal. fn. 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. In my view, the majority err by presuming not that the Legislature intended its enactment to be consistent with the purposes of article VII, but that it intended its enactment as a way to circumvent the limitations which have been judicially imposed to implement that constitutional mandate. The legislative history [15 Cal. As we explained in a case interpreting another constitutional measure, " we deal with a constitutional provision [Cal. Plaintiffs argue that the state must hire additional employees and that the Legislature's efforts are unconstitutional. See, e.g., In re M.S., supra, 10 Cal.4th at page 710 (overbreadth and vagueness attacks on hate crimes statute); Calfarm Ins. As we explain, however, nothing prevents Caltrans from seeking modification of the 1990 injunction based on a showing that particular contracts are justified because state workers cannot perform the work "adequately and competently.". Rptr. SATENDRA has 1 job listed on their profile. Thus, the principal question before us is whether the trial court abused its discretion in failing to modify or dissolve its earlier injunction in light of Chapter 433's subsequently adopted legislative findings and determinations. (d). This total break with precedent is not warranted by Chapter 433. Rptr. 2d 245, 828 P.2d 147].) Those provisions, respectively, permit judicial notice to be taken of "[f]acts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute" and "[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy." Com. Mircom Group is among Canada's most successful intelligent building . IX.B.2. Caltrans, adopting the Court of Appeal majority's similar argument, contends that " the legislative findings themselves are proof " of the propriety of private contracting sufficient to sustain the new legislation, and that the trial court's own contrary findings "are trumped by more recent legislative findings of fact," which "have to be respected unless palpably wrong." 1209 (1993-1994 Reg. Thus, " '[L]egislative findings, while not binding on the courts, are given great weight and will be upheld unless they are found to be unreasonable and arbitrary. (See, e.g., Producers Dairy Delivery Co. v. Sentry Ins. Caltrans has never challenged the trial court's earlier findings and conclusions regarding its noncompliance with the private contracting restriction. Gregg v. Georgia (1976) 428 U.S. 153, 184-186 [96 S. Ct. 2909, 2930-2931, 49 L. Ed. 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. 4th 549] particular cases. Thus, Chapter 433, when properly interpreted, does not disregard the constitutional restriction on private contracting, but instead is consistent with the purposes of article VII. These sections appear consistent with the decisional law interpreting article VII. [Citation.]" Neither the passage of time nor intervening authorities have lessened the applicability of these legal principles. FN 2. (Fn. Although some studies, such as the one considered by the trial court below, estimated the average total cost of contracting out as being higher than using Caltrans staff (Sen. Appropriations Com., Fiscal Summary of Sen. Bill. hXMk#G+}GJ`A z!%_S3d}p^nw1.%j cR1;0"3 L?gv,. (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. However, the constitutionality of a statute cannot turn on "the vagaries of litigation tactics." Code, 14130, subd. [Citation.] Rptr. January 12, 2022 Ted . (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. 180-181; see also California State Employees' Assn. Mr. Nyein Chan Thu - Civil Site Engineer - Aung Kyaw Myint Construction As explained below (post, pt. "However, this question is not presented by Chapter 433. Rptr. as amended June 24, 1993, pp. (Ibid. While it theoretically would be possible for the trial court to take judicial notice pursuant to Evidence Code section 452, subdivisions (g) and (h), I have examined the trial court's statement of decision and can find no facts of consequence that would fall within either of these provisions. On this point, the Legislature obviously had in mind the fact that the retrofitting, which had been mandated by statute following the Loma Prieta Earthquake in 1989, required completion by December 31, 1994, at the latest. 1209 (1993-1994 Reg. (Amezcua v. City of Pomona (1985) 170 Cal. In my view, Caltrans should not have to prove the economies of any particular contract in advance of the mandated study if the whole purpose of the study is to ascertain just such information. Even the First Amendment cases relied upon by the majority do not espouse such a view. 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.". 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. This review is pursuant to Section 19829.5 of the Government Code. 487, 624 P.2d 1215] [holding that the State Employer-Employee Relations Act did not conflict with article VII or the merit system mandate].) 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. Because such cases rest upon the fundamental ideal that "each person should decide for him [sic] or herself the ideas and beliefs deserving of expression, consideration, and adherence" (Turner Broadcasting System, Inc. v. FCC, supra, 512 U.S. at p. 641 [114 S.Ct. (See Burum v. State Compensation Ins. Senior Process Engineer Job California USA,Engineering 671, 683 P.2d 670, 41 A.L.R.4th 233] [not proper judicial function to reweigh legislative [15 Cal. (Id. 2d 575, 579-582 [184 P.2d 505]; Stockburger v. Riley (1937) 21 Cal. 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. 4th 562] permit Caltrans to operate more efficiently and cost-effectively than hiring state workers. The single critical commentary Caltrans cited was directed toward a State of Washington decision, Wash. The title acts are Agricultural, Chemical, Control Systems, Fire Protection, Industrial, Metallurgical, Nuclear, Petroleum, and Traffic Engineering. This has made more expensive by possibly billions of dollars the delivery of services in California. This was much more than a huge design and construction project. 4th 593] Cal.Rptr.2d 837, 913 P.2d 1046].) 851.) 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. Practices Com. (Italics added. 3d 575, 583 [131 Cal. FN 1. 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. (Italics added.). 4th 574] presented to the trial court or the Legislature. System Engineer Lead - Remote job in Fairfax at Dunhill Professional As a member of the executive management team, Jason collaborates on business strategy, marketing, & operations mgmt for the company. Rptr. Click here for information and documentation examples. (Spiritual Psychic Science Church v. City of Azusa (1985) 39 Cal. The agreements for California Association of Psychiatric Technicians, or CAPT, and the Professional Engineers in California Government, PECG, call for 5.58% raises for their employees that will go . 433, 485 P.2d 785].) In order to enact laws that would be upheld against constitutional challenges, would the Legislature be required to hold extensive evidentiary hearings? 3d 840, 846 [245 Cal. (2) Contrary to new section 14130, subdivision (a)(4), Caltrans has not demonstrated that, because it must use private contracting to perform project delivery "adequately and competently," its actions fall within another exception to the civil service mandate. 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." 4th 407, 414 [9 Cal. ' [Citations.]" The court found that since the 1986-1987 fiscal year, Caltrans has unlawfully contracted privately for engineering projects that the civil service has traditionally done; that by hiring more civil service employees, Caltrans could have the work at issue performed in a timely manner, and that Caltrans failed to justify private contracting on a cost-effectiveness or other valid basis. 2d 484]; Ludwig v. Superior Court (1995) 37 Cal. (In re Rodriguez (1975) 14 Cal. How then could we plausibly imply that the Legislature in enacting Chapter 433 made an implied finding that contracting out is cost-effective? 4th 587]. 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. The department is not required to staff to an internal level that matches its ability to assimilate and productively use new staff.". 433 (Reg. on Transportation, Rep. on Sen. Bill No. To check the status of your application, login to, UPDATED JULY 8, 2021 - FRAUD SCAM ALERT - The Board and the Department of Consumer Affairs have been made aware of a fraud scam targeting licensees. As Caltrans readily concedes, it has always been responsible for project development of state highway projects. (CSEA, supra, 199 Cal.App.3d at pp. Cameron Knudson is president of Professional Engineers in California Government, representing 14,000 state engineers, architects, geologists, and related professionals. 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.' 3d 840, recognized that allowing the state to consider cost savings in determining the propriety of private contracting serves the dual purposes of article VII " 'to promote efficiency and economy' " in state government and "to eliminate the 'spoils system' of political patronage." Professional Engineers in California Government (PECG). Please turn on JavaScript and try again. (Lockard v. City of Los Angeles, supra, 33 Cal.2d at p. 116, 758 P.2d 58].) Judieth Sullivan-Ojuola v. City of Sunnyvale, Imperial County Deputy District Attorneys Association v. County of Imperial, Junnie Verceles v. Oakland Unified School District, Service Employees International Union Local 721 v. County of Riverside, Teamsters Local 542 v. El Centro Regional Medical Center, Child Care Providers United California v. State of California, American Federation of State, County & Municipal Employees Council 36 v. City of Anaheim, Service Employees International Union, Local 99 v. The Accelerated Schools, Teamsters Local 2010 v. Regents of the University of California (Davis), Antelope Valley College Federation of Teachers v. Antelope Valley Community College District, Service Employees International Union Local 1000 v. State of California (California Correctional Health Care Services), California State University Employees Union v. Trustees of the California State University (San Diego), Service Employees International Union Local 1021 v. City and County of San Francisco (San Francisco Municipal Transportation Agency), California School Employees Association-Chapter 176 v. Barstow Community College District, Operating Engineers Local Union No. (Amador Valley Joint Union High Sch. As the Court of Appeal majority correctly observes, "Notwithstanding the Legislature's finding to the contrary, Caltrans's own description of the activities authorized by Chapter 433 discloses they do not constitute a new state function but simply a new technique for performing an existing function. (b). Unlike the federal Constitution, which is a grant of power to Congress, the California Constitution is a limitation or restriction on the powers of the Legislature. Over 200,000 people work for a State of California department or agency (other than a university). 800, 647 P.2d 76] (vagueness challenge to special circumstance statute); In re Ricky H. (1970) 2 Cal. omitted, italics added. 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. California Association of Professional Scientists (CAPS) 11 . 107, 1, subd. ( 14130.2, subd. We therefore hold, that in passing upon the constitutionality of a statute, the court must confine itself to a consideration of those matters which appear upon the face of the law, and those facts of which it can take judicial notice. #CAStateEngineers. 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." Rptr. 4th 579] need not be verified by current empirical proof].) (Stats. (Ch. Miller v. Municipal Court (1943) 22 Cal. 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]. The documents and information submitted with the application must substantiate that the requirements have been met. (Amwest, supra, 11 Cal.4th. The trial court used similar factual conclusions elsewhere in its order as well. 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. Daniel E. Lungren, Attorney General, Floyd D. Shimomura, Assistant Attorney General, Linda A. Cabatic and Daniel G. Stone, Deputy Attorneys General, William M. McMillan, Richard W. Bower, O. J. Solander, Stephanie G. Sakai, Irell & Manella, Gregory R. Smith, Joanna Moore and David Z. Moss for Defendants and Appellants. 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. Rptr. Dist. 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. 4th 765, 780 [35 Cal. 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." 4th 836, 850 [39 Cal. App. The court may not simply rely on its finding preceding enactment of Chapter 433 that any inadequacy of staff was caused by a policy and practice of maintaining staff at an artificially low level. 397-399.) As an analytical matter, Riley's rule seems appropriate to [15 Cal. 135.) 433, 13.) According to Williams, the civil service mandate is aimed at protecting "the existing civil service structure," and does not compel the state "to fulfill every new state function through its own agency." 'If there is any doubt as to whether the facts do or do not state a case of immediate necessity, that doubt should be resolved in favor of the legislative declaration .' [Citation.] (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.). 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. 2d 176].)" PECG represents 14,000 state-employed engineers and related professionals responsible for designing and inspecting California's infrastructure, improving air. 3d 361, 368 [220 Cal. Information Collection, Access and Disclosure page, Business and Professions Code sections 6751(c) and 6753. You're all set! 11 It simply allows the Director the discretion to contract out where such a move makes economic sense. " '[F]acts' which were in actuality the subject of a reasonable dispute [do not] become, after the dispute has been judicially decided, 'facts' which could not reasonably be subject to dispute merely because the doctrines of res judicata and collateral estoppel, if properly shown to apply, might operate to prevent further litigation of the dispute." ), FN 5. Rptr. (Elliott, supra, 17 Cal.3d at p. of Sacramento v. Saylor (1971) 5 Cal. 1209 (1993-1994 Reg. Acc. [Citations.]" (Maj. View James Bourbos' profile on LinkedIn, the world's largest professional community. [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. Revision Com., Proposed Revision (1966) p. at p. 2102]; Gregg v. Georgia, supra, 428 U.S. at pp. Rptr. Rptr. Section President 2nd Term at PROFESSIONAL ENGINEERS IN CALIFORNIA GOVERNMENT David Tanouye, P.G. 1209 (1993-1994 Reg. 7. ), In disregarding the Legislature's determinations, the majority rely on authorities evaluating First Amendment challenges to legislation. (c). 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. The trial court's use solely of factual conclusions to undermine legislative findings is best illustrated by its order of April 19, 1994, wherein the court stated: "In section 14130, subdivision (a)(5), the Legislature finds that 'the use of private consultants to assist in project delivery is a new state function and does not duplicate the existing functions of the department.' 2d 28, 39 [123 P.2d 488].). Although the ultimate constitutional interpretation must rest, of course, with the judiciary [citation], a focused legislative judgment on the question enjoys significant weight and deference by the courts." (Gov. ( 14130, subd. Rptr. Although Globe Grain concerned a statute which contained some express limits on the commission's exercise of discretion, I see no reason why the same presumption should not apply here. par. Because the injunction was inconsistent with the new law, the trial court did not abuse its discretion in vacating it. They explore the challenges and successes in building and rebuilding major infrastructure projects. Home | Professional Engineers in California Government I note, as did the Court of Appeal, the arguable illogic of a portion of the finding contained in section 14130, subdivision (a)(4), 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."