Alexander v. State Personnel Board

• Decision Date: 28 April 2000
• Citation: 80 Cal.App.4th 526,95 Cal.Rptr.2d 324
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 3 Dist. 2000) DENNIS P. ALEXANDER et al., Plaintiffs and Appellants, v. STATE PERSONNEL BOARD et al., Defendants and Respondents. CALIFORNIA STATE EMPLOYEES ASSOCIATION et al., Plaintiffs, Appellants and Interveners, v. STATE PERSONNEL BOARD et al., Defendants and Respondents. C030969 (Sacramento) Filed

95 Cal.Rptr.2d 324 (Cal.App. 3 Dist. 2000)

DENNIS P. ALEXANDER et al., Plaintiffs and Appellants, v. STATE PERSONNEL BOARD et al., Defendants and Respondents.

CALIFORNIA STATE EMPLOYEES ASSOCIATION et al., Plaintiffs, Appellants and Interveners, v. STATE PERSONNEL BOARD et al., Defendants and Respondents.

C030969

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, THIRD APPELLATE DISTRICT, (Sacramento)

Filed 4/28/00

APPEAL from the judgment of the Superior Court of Sacramento County. Ronald Robie, Judge. Affirmed as modified.

(Super. Ct. No. 97CS00577)

Dennis F. Moss for Plaintiffs and Appellants.

Gary P. Reynolds, Chief Counsel, Anne M. Giese and Daniel S. Connolly, for Interveners and Appellants.

Bill Lockyer, Attorney General, Martin H. Milas, Senior Assistant Attorney General, Marybelle D. Archibald and Vincent J. Scally, Jr., Deputy Attorneys General for Defendants and Respondents.

CERTIFIED FOR PUBLICATION

MORRISON, J.

With specified exceptions, state workers are governed by the civil service system provided by the California Constitution. (Cal. Const., art. VII, 1, subd. (a);

see Professional Engineers v. Department of Transportation (1997) 15 Cal.4th 543, 548.) In 1980, as part of the State Civil Service Act (Gov. Code, 18500 et seq.), the Legislature adopted Government Code sections 19600 through 19607, which authorize the State Personnel Board (the Board) to conduct, supervise, and evaluate demonstration projects to determine whether a specified change in personnel management policies and procedures would improve state personnel management. In 1997, the Board and the Department of General Services (DGS) agreed to conduct demonstration projects as to two classifications within the DGS, career management assignment and career supervisory assignment. Pursuant to Government Code section 19600 et seq., the Board approved the waiver of various provisions of the State Civil Service Act relating to classification, appointment and discipline.

Plaintiffs and plaintiffs in intervention, taxpayers and various groups of state workers, petitioned for a writ of mandate, challenging the demonstration projects. They appeal from denial of their petition. Together they contend the Legislature cannot permit the Board to waive certain civil service statutes; the waivers infringe on the constitutional merit principle; the Board's waivers and regulations violate the "general system" requirement of article VII, section 1, subdivision (b) of the California Constitution; the demonstration project law is a void delegation of legislative power; and the selection process in the demonstration projects eliminates the constitutional "competitive examination" requirement. We find merit only in the attack on the regulation setting forth the process for competitive examinations. We invalidate this regulation and otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 1980, the Legislature enacted Government Code sections 19600 through 19607, which authorize the Board to conduct and evaluate demonstration projects. A demonstration project is "a project conducted by the State Personnel Board, or under its supervision, to determine whether a specified change in personnel management policies or procedures would result in improved state personnel management." (Gov. Code, 19600.1.)

These demonstration projects may not infringe upon or conflict with the merit principle of article VII of the California Constitution or the merit principle of the civil service system. (Gov. Code, 19600.) Subject to that constraint, "the conducting of demonstration projects shall not be limited by any lack of specific authority under this code to take the action contemplated, or by any provision of this code or any rule or regulation prescribed under this code which is inconsistent with the action, including any law or regulation relating to" hours of work and methods of establishing qualifications, classifying positions, compensating employees, assigning, reassigning or promoting employees, disciplining employees, providing incentives, involving employees and labor organization in personnel decisions, and reducing overall agency staff and grade levels. (At subds. a-b.) The Board may not waive any provision of chapter 10 (commencing with Government Code 19680) (the whistleblower statutes). (Gov. Code, 19601.)

Before a demonstration project may be entered into, the Board must prepare a detailed plan for the project. The plan must identify the purpose, types and number of employees involved, methodology, duration, training, costs, criteria for evaluation, statutes and regulations waived, effect on the rights and status of employees, and provisions for determining these rights upon termination of the project. (Gov. Code, 19602, subds. (a)(1)-(a)(10).) The Legislature and affected employees must be notified 180 days in advance of the date the project is to take effect. (Gov. Code, 19602, subd. (b).) The plan must be published, with an opportunity for written comments, submitted to public hearings, and provided to the Legislature. (Gov. Code, 19602, subds. (c)-(i).) The Board must also obtain the approval of the agency involved. (Gov. Code, 19602, subd. (h).)

A demonstration project must terminate after five years and the affected employees retain all rights they would have had if not in the demonstration project. (Gov. Code, 19603, 19607.) The Board must evaluate the results of the demonstration project and its impact on public management. (Gov. Code, 19606.)

In 1997, the Board approved a plan to conduct two projects for management and supervisory employees in the DGS, the career management assignment project (CMA) and the career supervisory assignment project (CSA). The projects were designed to study alternatives to traditional methods of examining, selecting, appointing, promoting, compensating and removing managerial employees and supervisory employees above a certain salary range. As part of the projects, various Government Code sections were waived. These statutes related to the definition of class, the establishment and use of lists, examinations, the rule of three ranks and the ranking of scores, probationary periods, appeals of rejections or adverse actions, establishing and adjusting salary ranges, merit and other salary adjustments, layoffs and demotions. In addition, new regulations relating to class, examinations, reemployment lists, probation and appeal from rejection during probation were adopted.

Especially relevant here, the Board adopted a regulation on competitive examinations. (Cal. Code Regs., tit. 2, 549.6.) The new regulation provided that open or promotional examinations would be conducted pursuant to procedures adopted for Career Executive Assignments. (Ibid.) Under those procedures, "Examination results need not be expressed in specific ratings of individuals. The person appointed as a result of a competitive examination must be well qualified and carefully selected. The appointing power is required to promulgate the qualifications that will be used as standards in conducting the examination but is not required to distinguish between groups or individuals as to who is qualified or not qualified or as to relative level of qualification." (Cal. Code Regs., tit. 2, 548.40.)

Plaintiffs, Dennis Alexander, Professional Engineers in California Government, Association of California State Attorneys and Administrative Law Judges, and California Association of Professional Scientists (hereafter collectively Alexander), petitioned for a writ of mandate to compel the Board to fulfill its duty to enforce all civil service laws.¹ Alexander contended the Board had failed to do its duty by establishing a special system for CMA and CSA and waiving certain civil service laws. Alexander also sought a declaration of the Board's duties. Plaintiffs argued that the Board had a ministerial duty to enforce civil service laws and preserve the general system of civil service.

California State Employees Association, Association of California State Supervisors, and Jack Lyall (hereafter collectively CSEA) intervened in the proceeding. CSEA sought to set aside the CMA and CSA projects. CSEA argued the waivers infringed upon the merit principle. In particular, they criticized the examination procedures, claiming the lack of a requirement to specify the results made the examination not competitive and permitted less successful candidates to be appointed.

In a tentative ruling, the trial court denied the petition. The court then requested supplemental briefing on two questions. The first question was whether the Legislature improperly delegated its legislative authority to the Board in enacting the demonstration project statutes. The second issue was what constituted a competitive examination in light of Kidd v. State of California (1998) 62 Cal.App.4th 386.

After receiving supplemental briefing on these issues, the court denied the petition.

DISCUSSION

I

The Supreme Court has recounted the history of the current constitutional provisions for the civil service system. "In 1913, the California Legislature enacted a statute creating California's first civil service system in an attempt to combat the 'spoils system' of political patronage in state employment. (Stats. 1913, ch. 590, p. 1035.) By the early 1930's, however, the existing statutory civil service system was obviously failing in its primary task. The deficiencies in the system stemmed from several principal sources. First, acceding to political pressure, both the Legislature and the statutory civil service commission itself had over the years exempted numerous departments and positions from the civil service restrictions: indeed, by 1932 the exemptions had become so widespread that '[o]f the 23,222 full-time state employees, only 11,917 held permanent civil service positions.' [Citation.] Thus, fully one-half of the permanent state employees were exempt from the civil service...