Prof'l Eng'rs in Cal. Gov't v. Brown

Citation177 Cal.Rptr.3d 567,229 Cal.App.4th 861
Decision Date01 January 2014
Docket NumberA136338
CourtCalifornia Court of Appeals
PartiesPROFESSIONAL ENGINEERS IN CALIFORNIA GOVERNMENT et al., Plaintiffs and Respondents, v. Edmund G. BROWN, Jr., as Governor, etc., et al., Defendants and Appellants.


See 7 Witkin, Summary of Cal. Law (10th ed. 2005) Constitutional Law, § 129.

Alameda County Superior Court, Honorable Steven A. Brick. (Alameda County Super. Ct. Nos. RG10494800, RG10530845)

David W. Tyra, Kristianne T. Seargeant, Meredith Packer Garey, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, Joan A. Markoff, Will M. Yamada, California Department Human Resources, for Defendants and Appellants.

Barbara J. Chisolm, Peder Thoreen, Altshuler Berzon LLP, San Francisco, James Gerald, for Plaintiffs and Respondents.

Siggins, J.

Defendants Governor Brown, the California Department of Human Resources (formerly known as the Department of Personnel Administration, or DPA) and a number of state officials challenge an order and judgment granting a petition for writ of mandate that invalidated mandatory furloughs of two categories of state employees: (1) unionized rank-and-file employees represented by Professional Engineers in California Government (PECG) and the California Association of Professional Scientists (CAPS) whose furloughs disproportionately reduced their compensation relative to nonunionized employees represented by PECG and CAPS; and (2) PECG and CAPS-represented employees in positions involving hazardous waste remediation and management on military bases.

Defendants contend the trial court erred when it ruled the furloughs of employees working in hazardous waste remediation violated provisions of the Water and Health and Safety Codes and the single subject rule set forth in article IV, section 9 of our state Constitution; that it misconstrued statutory language requiring proportionate reductions in compensation for unionized and nonunionized employees; that it committed evidentiary error; and that mandamus is not available for the monetary relief sought. As we shall explain, the trial court erred when it concluded the furloughs of employees working in hazardous waste remediation violated the single subject rule. In all other respects, however, we affirm the trial court's rulings.


In 2008 and 2009, then-governor Schwarzenegger issued executive orders requiring the unpaid furloughs of most state employees, including close to 16,000 engineers and scientists represented by PECG and CAPS. Pursuant to those executive orders, employees were subjected to two unpaid furlough days per month from July 1, 2009 to June 30, 2010.

On July 28, 2010, Governor Schwarzenegger issued Executive Order No. S–12–10, directing the furloughing of state employees for three days each month from August 2010 until a 20102011 fiscal year budget is in place and the Director of the Department of Finance determines that there is sufficient cash to allow the State to meet its obligations to pay for critical and essential services to protect public health and safety and to meet its payment obligations protected by the California Constitution....” Pursuant to this Executive Order, nonunion employees represented by CAPS and PECG were subject to three-day-per-month furloughs through the end of October 2010. However, union employees represented by CAPS and PECG were subject to the three furlough days per month through March 2011.1

On October 8, 2010, the Legislature passed Senate Bill No. 870 (2009–2010 Reg. Sess.) as the budget act for the 20102011 fiscal year (the Budget Act) (Stats.2010, ch. 712, § 3.91). Section 3.91 authorized “reductions in employee compensation achieved through the collective bargaining process or through administrative actions for represented employees and a proportionate reduction for nonrepresented employees (utilizing existing authority of the administration to adjust compensation for nonrepresented employees)....” (Italics added.) It further instructed the Director of Finance to make the “necessary reductions to each item of appropriation....” (Stats.2010, ch. 712, § 3.91.)

Effective November 1, 2010, the Governor issued Executive Order No. S–15–10, applicable to most nonunion state employees, including supervisory and other exempt employees represented by PECG and CAPS. Executive Order No. S–15–10 reduced the nonunion employees' net compensation by imposing a one-day per month personal leave program and extracting a 3 percent increase in employees' monthly contributions to their pension plan. Between Executive Order No. S–15–10 and the three-day-furlough in effect from August through October 2010, nonunionized employees' net compensation for fiscal year 20102011 was reduced by a total of 8.5 percent. That reduction mirrored the 8.5 percent total reduction to the net compensation of employees in nine state bargaining units represented by Service Employees International Union (SEIU) approved by the Legislature in the 20102011 Budget Act. In contrast, union employees represented by CAPS and PECG were furloughed for three days each month throughout 2010 and into 2011. As a result, they incurred an 8.5 percent reduction in net compensation for the fiscal year after their first furlough day in March 2011 but were nonetheless subjected to two more furlough days before furloughs ended on April 1, 2011.

Following proceedings in the trial, appellate and Supreme Courts which we need not detail here, plaintiffs filed the petitions for writ of mandate we consider in this appeal. This timely appeal is from the trial court's order and judgment in plaintiffs' favor.

I. The Single Subject Rule

Plaintiffs successfully challenged the furloughs of employees who work in positions related to hazardous substance management and remediation at military bases on the ground that provisions of the Water and Health and Safety Codes prohibit the Controller and Department of Finance from imposing “any ... personal services limitations” on those positions. (Water Code, § 13177.7, subd. (b); Health & Safety Code, § 25353.5, subd. (b).) 2 Defendants contend the trial court misinterpreted the phrase “personal services limitations” to encompass furloughs, and, further, that it wrongly found that furloughs of employees covered by those statutes violated the California Constitution's single subject rule. Only the second of these contentions has merit.

A. The Statutory Language Encompasses Furloughs

Defendants' threshold contention, that the provisions of the Water and Health and Safety Codes related to employees performing remediation at military bases are not at issue because furloughs are not “personal service limitations,” warrants only brief attention. We note preliminarily that defendants forfeited this issue for appeal by failing to assert it in the trial court. Although they claim to have raised this point, our review of the trial court record, including the specific pages defendants cite for this claim, validates the trial court's observation that they did not. We will nonetheless address it, albeit briefly, because it presents a purely legal issue of statutory interpretation that involves a matter of public interest. (See Sheller v. Superior Court (2008) 158 Cal.App.4th 1697, 71 Cal.Rptr.3d 207; Bayside Timber Co. v. Board of Supervisors (1971) 20 Cal.App.3d 1, 5, 97 Cal.Rptr. 431)

Defendants say the statutory phrase “personal service limitations” is “undefined and vague,” so that “it is not at all clear that the language of the two code sections encompasses furloughs.” Not so. “Ordinarily words used in a statute are presumed to be used in accordance with their established legal or technical meaning.” (People v. Carter (1996) 48 Cal.App.4th 1536, 1539, 56 Cal.Rptr.2d 309; see also Wohlgemuth v. Caterpillar Inc. (2012) 207 Cal.App.4th 1252, 1261, 144 Cal.Rptr.3d 545 [“The meaning of the words of a statute is determined with reference to the context in which the words are used.”].) The term “personal service” has an accepted meaning in the context of budget legislation, and it signifies employee compensation. In the specific context of cutbacks occasioned by our recent series of budget crises, furloughs have explicitly been identified as a method of reducing the “personal service” budgets of various state departments. Thus, the Governor's 2009 veto message regarding the 2009 budget discusses “personal service budget” reductions for the Attorney General, State Controller, Secretary of State, and Department of Education, each of “which reflects the state employee compensation reductions for furloughs, overtime reform, and elimination of two state holidays.” 3 (Italics added.) (See also Brown v. Chiang (2011) 198 Cal.App.4th 1203, 1226, 132 Cal.Rptr.3d 48 [State Controller's arguments linked furloughs and other cutbacks in budgeted employee compensation to reductions in “departmental personal services budgets”].) We have no reason to conclude the phrase “personal service limitations” as used in Water Code section 13177.7, subdivision (b) and Health and Safety Code section 25353.5, subdivision (b) have any meaning different than “personal service” as used in the context of budget legislation. Defendants' belated and cursory complaint that “it is not at all clear that the language of the two code sections encompasses furloughs” is unpersuasive in light of this background.

B. The Furloughs Do Not Violate the Single Subject Rule

It is undisputed that the Legislature possesses the general authority to regulate state employee compensation, including through the use of furloughs. (See Professional Engineers in California Government v. Schwarzenegger (2010) 50 Cal.4th 989, 1041–1042, 1047–1048, 116 Cal.Rptr.3d 480, 239 P.3d 1186 (Professional Engineers I ).) It is also undisputed that the furloughs ordered by the Governor were lawful only if and to the extent they were approved by the Legislature. (Id. at pp. 1041–1042, 1051,...

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