Professional Eng. v. State Personnel Bd.

• Decision Date: 11 July 2001
• Docket Number: No. C028402.,C028402.
• Parties: PROFESSIONAL ENGINEERS IN CALIFORNIA GOVERNMENT et al., Plaintiffs and Appellants, v. STATE PERSONNEL BOARD et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

109 Cal.Rptr.2d 375

90 Cal.App.4th 678

PROFESSIONAL ENGINEERS IN CALIFORNIA GOVERNMENT et al., Plaintiffs and Appellants, v. STATE PERSONNEL BOARD et al., Defendants and Respondents.

No. C028402.

Court of Appeal, Third District.

July 11, 2001.

As Modified August 10, 2001.

Review Denied October 10, 2001.

Dennis F. Moss and Steven Bassoff, for Plaintiffs and Appellants.

Daniel E. Lungren and Bill Lockyer, Attorneys General, Martin H. Milas, Senior Assistant Attorney General, Marybelle D. Archibald and Vincent J. Scally, Jr., Deputy Attorneys General, for Defendant and Respondent State Personnel Board.

K. William Curtis, Kenneth R. Hulse, Marguerite D. Shea and Linda Diane Buzzini for Defendant and Respondent Department of Personnel Administration.

MORRISON, J.

In this case we decide that the Career Executive Assignment (CEA) program does not violate the civil service mandate of the California Constitution. However, the implementing regulations that allow selection and transfer of applicants without ranking them violate statutes implementing the constitutional requirement of a "system based on merit ascertained by competitive examination." As we recently held in Alexander v. State Personnel Bd. (2000) 80 Cal.App.4th 526, 542, 95 Cal. Rptr.2d 324 (Alexander), competition denotes a rivalry: "It encompasses a comparison of relative merit." Such comparison requires rankings.

With specified exceptions, a civil service system governs state workers, as 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, 63 Cal.Rptr.2d 467, 936 P.2d 473.) "In the civil service permanent appointment and promotion shall be made under a general system based on merit ascertained by competitive examination." (Cal. Const., art. VII, § 1, subd. (b).) The Legislature created the CEA program to promote governmental efficiency. A person may leave a regular civil service position to accept a CEA appointment. When the appointment terminates, the person returns to the former post.

Professional Engineers in California Government and other groups of state workers (collectively, the Engineers) filed a petition seeking declaratory and other relief, alleging the CEA program violates the civil service provisions of the California Constitution. The State Personnel Board (the Board) and the Department of Personnel Administration (the Department) appeared separately to oppose the claims. The trial court denied the petition and the Engineers timely appealed.

We held this case pending resolution of a case raising similar issues. (Alexander v. State Personnel Board, supra, 80 Cal. App.4th 526, 95 Cal.Rptr.2d 324.) Although we reject some of the Engineers' claims, they correctly contend the present system improperly allows some CEA appointments without competitive examination. We shall modify the judgment and affirm.

DISCUSSION

I. Background.

From Statehood, patronage filled most state jobs. Reportedly, Governor Hiram Johnson "followed two guidelines in filling government slots prior to the implementation of the civil service system. First, the State should receive the most efficient service attainable. Second, those most able to furnish this service should be picked from the better party—Republican." (C. King, Deliver Us from Evil: A Public History of California's Civil Service System (1979) p. 9 (hereafter King).) California adopted its first civil service system by statute during the Progressive Era in 1913. (Stats.1913, ch. 590, p. 1035.) This plan would not only ensure good state workers, but, in tail-wags-dog fashion, ensure good politics. "When the next fight for Governor comes off, there will be no spoils of office to promise or barter away. The election will go off entirely on the character of the two men who are appealing to the people for their suffrage and on the principles of government which they advocate." (King, supra, at p. 9.)

In 1934 the People, in the exercise of their reserved initiative powers—'powers wrested from the central government during the same Progressive Era—adopted a number of provisions designed to strengthen the existing civil service system. The California Supreme Court reviewed the history as follows:

"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.' [(Citing King, supra, at p. 26.) ] Thus, fully one-half of the permanent state employees were exempt from the civil service law.

"`A second abuse of the Civil Service Act was the gross misuse of authorizations for temporary employment [which was not subject to the civil service act]... Officially, temporary appointments followed the three month rule, but this had never been followed. By August 1931, temporary employees constituted more than a third of the entire state service.' [(King, supra, at p. 26.) ]

"Finally, in the early 1930's considerable public attention was focused on the problem by widespread newspaper accounts of the allegedly numerous politically motivated appointments made by the incumbent Governor. (Id. at pp. 26-29.)

"It was in this milieu and in response to the specific problems of the times that in 1934 the people adopted article XXIV of the state Constitution. The ballot argument accompanying the 1934 initiative measure sets forth in clear terms both the objectives and the limits of the proposed constitutional provision.

"The ballot argument stated: `The purpose of this constitutional amendment is to promote efficiency and economy in State government. The sole aim of the act is to prohibit appointments and promotion in State service except on the basis of merit efficiency and fitness ascertained by competitive examination. Appointments of inefficient employees for political reasons are thereby prohibited, thus eliminating the "spoils system" from State employment, [¶] ... [T]his constitutional amendment provides: (1) Employment in the classified service based solely on merit and efficiency; (2) a nonpartisan Personnel Board; (3) prohibition against exemptions from the merit system of employment; (4) correction of the temporary political appointment evil. [¶] Having by constitutional mandate prohibited employment on any basis except merit and efficiency, thereby eliminating as far as possible the "spoils system" of employment, the Legislature is given a free hand in setting up laws relating to personnel administration for the best interests of the State, including the setting up of causes for dismissal such as inefficiency, misconduct or lack of funds.' (Italics added.) [Citing Ballot Pamp.]" (Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 181-183, 172 Cal.Rptr. 487, 624 P.2d 1215, fn. [containing complete ballot argument] omitted (PLF); see Pinion v. State Personnel Board (1938) 29 Cal.App.2d 314, 318, 84 P.2d 185 (Pinion) [now "permanent appointments and promotions in the state civil service shall be made exclusively under the general system based upon merit, efficiency and fitness as ascertained by competent examinations"] (Pinion).)

The constitution exempts specified positions from the civil service. Broadly speaking, these are elected or confidential employees, such as judicial, gubernatorial and legislative employees, elected officials, a specified number of deputies of elected officers, and board and commission members or deputies; university officials and employees are also exempted. (See, e.g., Cal. Const., art. VII, § 4 [listing major exemptions], art. IX, § 2.1, art. XX, § 22.)

The People moved the language at issue in this case to its present location in 1976. (PLF, supra, 29 Cal.3d at p. 184, fn. 8, 172 Cal.Rptr. 487, 624 P.2d 1215.) The Engineers concede no material change in the constitutional language has taken place since 1934.

Article VII, section 1 provides: "(a) The civil service includes every officer and employee of the State except as otherwise provided in this Constitution. [¶] (b) In the civil service permanent appointment and promotion shall be made under a general system based on merit ascertained by competitive examination." Article VII, section 5 provides: "A temporary appointment may be made to a position for which there is no employment list. No person may serve in one or more positions under temporary appointment longer than 9 months in 12 consecutive months."

In 1963, the Legislature, drawing on ideas originally proposed by President Eisenhower's Hoover Commission, created "a new kind of civil service appointment" as part of a program "to give scope to younger civil service employees possessing extraordinary ability and initiative, and to enhance the ability of the policy-forming heads of state agencies to perform efficiently the tasks for which the public holds them accountable. [¶] When a vacancy occurs in a civil service position `of a high administrative and policy influencing character' [citation] the State Personnel Board may designate the position as a career executive assignment. The statutes normally `governing the selection, classification, salary, tenure and other conditions of employment' in the civil service do not apply to career executive assignments unless so provided by board rule. [Citation.] Eligibility for a career executive appointment is...