Brown v. Superior Court of Alameda Cnty.
| Decision Date | 21 December 2011 |
| Docket Number | No. A127292.,A127292. |
| Citation | 2011 Daily Journal D.A.R. 14953,132 Cal.Rptr.3d 448,199 Cal.App.4th 971,11 Cal. Daily Op. Serv. 12600 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Edmund G. BROWN, Jr., as Governor, etc., et al, Petitioners, v. The SUPERIOR COURT of Alameda County, Respondent; California Correctional Peace Officers' Association et al., Real Parties in Interest. |
OPINION TEXT STARTS HERE
Kronick, Moskovitz, Tiedemann & Girard, David W. Tyra, Kristianne T. Seargeant, Meridith H. Packer, Sacramento; K. William Curtis, Sacramento, Warren C. Stracener, Placerville, Linda A. Mayhew, Will M. Yamada, Sacramento, and Joan A. Markoff, Attorneys for Petitioners.
No appearance for Respondent Superior Court.
Carroll, Burdick & McDonough, Greg McLean Adam, Jonathan Yank, Gonzalo C. Martinez, San Francisco; and Daniel M. Lindsay, Sacramento, Attorneys for Real Party in Interest California Correctional Peace Officers' Association.
Edmund G. Brown Jr., Attorney General, Jonathan K. Renner, Assistant Attorney General, Zackery P. Morazzini, Ross C. Moody, Deputy Attorney General. Attorneys for Real Party in Interest John Chiang.
Altshuler Berzon, Stacey M. Leyton, Barbara J. Chisholm, Peder Thoreen, San Francisco; and Gerald James, Sacramento, Attorneys for Amici Curiae Association and The Professional Engineers in California Government and The California Association of Professional Scientists on behalf of Real Party in Interest California Correctional Peace Officers'.
This petition for a writ of mandate seeks to overturn an order by the Superior Court of Alameda County that would virtually nullify the three-day-per-month furlough program as it is applied to facilities manned by employees represented by the California Correctional Peace Officers Association (CCPOA). The trial court determined that the furlough program, which was implemented in the wake of two Executive Orders by the Governor, resulted in a reduction in pay for CCPOA members that violated various state statutes, specifically Government Code section 19826, Labor Code section 223, and the state's minimum wage law. The trial court directed issuance of a writ of mandate ordering that back pay be provided to CCPOA members.
After this matter was fully briefed, but before it was argued, our Supreme Court decided Professional Engineers in California Government v. Schwarzenegger (2010) 50 Cal.4th 989, 116 Cal.Rptr.3d 480, 239 P.3d 1186( Professional Engineers ), upholding the legality of the two-days-a-month unpaid furlough time implemented following the first Executive Order. The core holding of Professional Engineers was that in enacting revisions to the 2008 Budget Act, the Legislature had in effect retroactively validated the furlough program by reducing the appropriated funds for the agencies whose employees were then being furloughed. In Service Employees Internat. Union, Local 1000 v. Brown (2011) 197 Cal.App.4th 252, 128 Cal.Rptr.3d 711( SEIU v. Brown ), this court held that the reasoning of Professional Engineers was equally applicable to the third furlough day established by the second Executive Order and the Legislature's revisions to the 2009 Budget Act. We reiterate that conclusion here.
We further conclude that the reasoning of Professional Engineers and SEIU v. Brown is incompatible with two of the statutory grounds for the trial court's order. First, Professional Engineers establishes that Government Code section 19826 does not invalidate the furlough program. Although the trial court correctly determined that the furlough program resulted in a reduction of CCPOA members' pay, that reduction, accomplished by the Legislature when it revised the 2008 and 2009 Budget Acts, was within the Legislature's near-plenary authority over the compensation of state employees. Second, the Legislature's revisions to the Budget Acts also establishes no violation of Labor Code section 233—which prohibits an employer secretly “pay[ing] a lower wage while purporting to pay the wage designated by statute or contract”—because CCPOA's members were being paid according to the governing statutes, in this instance, the revisions to the Budget Acts. We also reject CCPOA's contention that the furlough program contravenes Labor Code 212, a measure essentially intended to prevent employers from giving employees paychecks that cannot be cashed.
Finally, we note that effective August 2010, the furlough program was amended so that there was no expiration date for previously accrued furlough days, which means there is no deadline by which CCPOA members must take their compensatory time off or lose it. Thus, assuming a public employee can make a minimum wage claim-an issue we do not decide—such a claim will not be justiciable until a particular CCPOA member has ceased employment. Thus, there is no present or ministerial duty that mandate can compel.
In light of these conclusions, we grant the Governor's petition and order the trial court to set aside its order mandating the relief sought by CCPOA.
On December 19, 2008, Governor Arnold Schwarzenegger issued Executive Order S–16–08. By reason of “an approximately $15 billion General Fund deficit for the 2008–09 fiscal year, which without effective action, is estimated to grow to a $42 billion General Fund budget shortfall over the next 18 months,” he directed that “effective February 1, 2009 through June 30, 2010, the Department of Personnel Administration shall adopt a plan to implement a furlough ... for two days per month” for “represented state employees,” managers, and supervisors. On July 2, 2009, noting that “California's revenues ... continue to plummet,” Governor Schwarzenegger issued a second Executive Order, S–13–09, which ordered the furlough program expanded to three days per month for the period from July 1, 2009, through June 30, 2010. Each of the Executive Orders was preceded by a proclamation declaring a fiscal emergency necessitated by the dire condition of the state's finances.
Pursuant to the Executive Orders, the Department of Personnel Administration (DPA) implemented a program that impacted the members of Bargaining Unit 6, which is represented by CCPOA. Bargaining Unit 6 is composed of approximately 30,000–35,000 state civil service employees, including 2,500 supervisory sergeants and lieutenants, working at correctional facilities operated by the Department of Corrections and Rehabilitation (CDCR), the Department of Mental Health (DMH), and the “Department of Juvenile Justice” (DJJ).1
In response to the Governor's Executive Orders, the DPA implemented a furlough program pursuant to which DCCR and DMH placed Bargaining Unit 6 members on what is called a “self-directed” furlough. That is, the members are encouraged to take their furlough hours off within each month; however, if they cannot, they are permitted to accumulate furlough leave credits to be used at a future date. The furlough program also requires that Bargaining Unit 6 members utilize accumulated furlough hours prior to utilizing other types of paid leave, including vacation, annual leave, personal leave, or holiday credits.
CCPOA sued the Governor, the DPA, the State Controller, and the three agencies (which for simplicity will be collectively designated as the Governor) employing members of Bargaining Unit 6. In its trial brief, CCPOA explained the features of the furlough system it was challenging:
“Under the authority of the Executive Orders, ... CDCR, DMH, DJJ have implemented a ‘furloughs' scheme ... the gist of which is that: [¶] employees receive three ‘furlough’ day credits per month; [¶] employees theoretically attempt to ‘self-direct’ up to three furlough days per month (i.e., take days off); [¶] every employee's pay is reduced by three days per month, or approximately 13.5%; [¶] employees who can take a furlough day have a day off without pay; [¶] employees (and this is by far the majority) who cannot use three furlough days in a month must work their normal schedule, endure the pay cut, and carry over unused ‘furlough credit’ balances; [¶] furlough credits have no cash value, cannot be cashed-out, and will expire if unused by June 30, 2012.2
“This scheme is intended to create significant salary savings for CDCR, DMH, and DJJ—however, it does so by violating two sets of laws. First, as implemented, the furlough scheme usurps the Legislature's sole authority under Government Code section 19826 and Article 3, Section 3 of the California Constitution to adjust the salaries of union-represented State employees. The ‘furloughs' result in an approximate 13.5 percent reduction in salaries without a commensurate and contemporaneous reduction in hours.
“Second, because few, if any, employees are permitted to use furlough days in the month that they accrue ..., but all employees' monthly salaries are reduced by approximately 13.5 percent, the harmed employees' only compensation for up to three days worked each month is a non-negotiable furlough credit. Put another way, defendants unilaterally stopped paying employees for three days per month, whether the employees worked those days or not.3“In this ... proceeding[ ], [CCPOA] asks this Court to issue a writ of mandate compelling Respondents to pay the harmed employees their full wages each month, without reduction and in negotiable form, for all time worked during the proceeding pay period, in accordance with Respondents ministerial duties under Government Code section 19826 and Labor Code sections 212, 223, and 1171 et seq.”
The trial court considered a mountain of material, including much statistical evidence concerning the actual operation of the furlough program as implemented in correctional facilities and applied to members of Bargaining Unit 6. The court also heard extensive argument before filing a 10–page order granting CCPOA's petition for the writ. The court's decision rested on two...
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