Professional Engineers v. Department of Transportation, C018317

• Decision Date: 15 March 1996
• Docket Number: No. C018317,C018317
• Citation: 51 Cal.Rptr.2d 465,43 Cal.App.4th 894
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 43 Cal.App.4th 894, 48 Cal.App.4th 1 43 Cal.App.4th 894, 48 Cal.App.4th 1, 96 Cal. Daily Op. Serv. 1819, 96 Daily Journal D.A.R. 3092 PROFESSIONAL ENGINEERS IN CALIFORNIA GOVERNMENT (PECG) et al., Plaintiffs and Respondents, v. DEPARTMENT OF TRANSPORTATION et al., Defendants and Appellants.

Page 465

51 Cal.Rptr.2d 465

Previously published at 43 Cal.App.4th 894, 48 Cal.App.4th 1

43 Cal.App.4th 894, 48 Cal.App.4th 1,

96 Cal. Daily Op. Serv. 1819,

96 Daily Journal D.A.R. 3092

PROFESSIONAL ENGINEERS IN CALIFORNIA GOVERNMENT (PECG) et al., Plaintiffs and Respondents, v. DEPARTMENT OF TRANSPORTATION et al., Defendants and Appellants.

No. C018317.

Court of Appeal, Third District, California.

March 15, 1996.

Review Granted June 19, 1996.

Daniel E. Lungren, Attorney General, Floyd D. Shimomura, Assistant Attorney General, Linda A. Cabatic, Supervising Deputy Attorney General, and Daniel G. Stone, Deputy Attorney General, for Defendants and Appellants.

William M. McMillian, Chief Counsel, Richard W. Bower, Assistant Chief Counsel, O.J. Solander, Staff Counsel, and Stephanie G. Sakai, Staff Counsel, For Defendants and Appellants.

Nossaman, Guthner, Knox & Elliot, Stephen N. Roberts, Stanley S. Taylor, San Francisco, and Patricia Lee Connors, Sacramento, Metropolitan Transportation Commission, Francis F. Chin, Kennedy & Wasserman, and R. Zachary Wasserman, Oakland, Amici Curiae for Defendants and Appellants.

David L. Kelly, Irvine, Amicus Curiae for Defendants and Appellants.

Loren E. McMaster, Sacramento, for Plaintiffs and Respondents.

Association of California State Attorneys and Administrative Law Judges and Dennis F. Moss, Sherman Oaks, Amici Curiae for Plaintiffs and Respondents.

Williams, Romanski, Polverari & Skelton, and Anthony M. Santana, Redwood City, Amici Curiae for Plaintiffs and Respondents.

California State Employees Association, Gary P. Reynolds, and Harry J. Gibbons, Sacramento, Amici Curiae for Plaintiffs and Respondents.

California Union of Safety Employees, Sam A. McCall, Chief Legal Counsel, and Neil Robertson, Legal Counsel, Amici Curiae for Plaintiffs and Respondents.

PUGLIA, Presiding Justice.

This appeal involves a facial challenge to a 1993 statute (Stats.1993, ch. 433) extending the authority of defendant Department of Transportation to contract with private entities for the performance on state highway projects of design, inspection, and related work which has traditionally been performed by civil service employees. We shall hold that the statute is not violative of the constitutional civil service mandate. (Cal. Const., art. VII, § 1.)

In 1990, the superior court issued a permanent injunction against the Department of Transportation and its then Director, defendant Leo J. Trombatore, prohibiting them in specified circumstances from contracting with private entities to perform state work. In light of the intervening 1993 statute, defendants (collectively "Caltrans") moved to dissolve the 1990 injunction. The superior court denied the motion, concluding the 1993 statute is unconstitutional as in violation of the civil service article of the Constitution. (Cal. Const., art. VII, § 1.) Caltrans appeals from this order. (see Code Civ.Proc., § 904.1, subd. (a)(6).) We shall reverse.

I

Article VII, section 1 of the Constitution states: "(a) The civil service includes every officer and employee of the State except as otherwise provided in this Constitution. [p] (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 1 (hereafter "Article VII") and its predecessor, Article XXIV have often been described simply as the "civil service mandate." (See e.g., Professional Engineers v. Department of Transportation (1993) 13 Cal.App.4th 585, 593-594, 16 Cal.Rptr.2d 599; California State Employees' Assn. v. State of California (1988) 199 Cal.App.3d 840, 844, 245 Cal.Rptr. 232.) The civil service mandate has been judicially interpreted as a restriction on contracting out Plaintiffs are Professional Engineers in California Government (PECG), a labor organization representing engineers employed by the State of California, and Richard T. Baker, a California taxpayer and citizen. Plaintiffs initiated the underlying action to enjoin certain contracting practices engaged in by Caltrans alleged to violate the organic civil service mandate and statutory authority.

                state work to the private sector.  (California State Employees' Assn. v. State of California, supra, 199 Cal.App.3d at p. 844, 245 Cal.Rptr. 232, and cases cited therein.)   The restriction on contracting out does not arise from the express language of the constitution but rather "from an implicit necessity for protecting the policy of the organic civil service mandate against dissolution and destruction.  [Citation.]"  (California State Employees' Assn. v. Williams (1970) 7 Cal.App.3d 390, 397, 86 Cal.Rptr. 305.)
                

On April 17, 1990, the superior court issued a permanent injunction prohibiting Caltrans from: (a) contracting outside civil service for "project development services" without demonstrating the existence of facts satisfying the criteria for such contracting, as set forth in [Government Code] sections 14101 and 14130 et seq.; ¹ (b) entering into cooperative agreements with local entities where part or all of the work is to be performed by private entities; and (c) awarding contracts to private entities for construction survey staking. ²

During the next several years, the superior court entered additional orders relating to Caltrans' compliance with the injunction. On January 25, 1991, the court found Caltrans had violated the injunction by contracting with private entities for 1,200 personnel years of project development work without providing an adequate factual basis. On April 1, 1991, the court rejected Caltrans' "total program" approach to outside contracting, by which contracting needs were determined on a fiscal year basis by comparing annual project obligations with available personnel. On May 18, 1993, the court held Caltrans' decision to maintain staffing for fiscal year 1992-1993 at 1991-1992 levels, because of a projected reduction in staffing needs in future years and a desire to avoid short-term hiring and layoff expenses, was not supported by the evidence.

The statutory framework of Caltrans' authority to contract out was in place before the enactment of the 1993 statute at issue in this appeal. That authority, as relevant to our inquiry, is addressed generally in Government Code sections 14101, 14131 and 14134, subdivision (a). (Further statutory references to sections of an undesignated code are to the Government Code.)

Section 14101 states: "[Caltrans] 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 work to be done."

Section 14131 states: "The department may contract for the services of engineers, architects, surveyors, planners, environmental Section 14134, subdivision (a) states: "[Caltrans], after consultation with the [California Transportation C]ommission and local transportation agencies, shall adopt guidelines for determining the appropriateness of contracting with private firms or on projects developed cooperatively with local jurisdictions. The guidelines shall include, but not be limited to, consideration of the following:

specialists, and materials testing specialists to provide professional and technical services relating to project study reports, project development, surveying, and construction inspection whenever the director determines that the guidelines adopted pursuant to Section 14134 are applicable. Services contracted for shall not cause the displacement of any permanent, temporary, or part-time employee of the department. [p] For purposes of this section, 'displacement' means layoff, demotion, involuntary transfer to a new class, or involuntary transfer to a new work location requiring the employee to change his or her place of residence in order to be able to continue in his or her job classification."

"(1) Ensuring that all available federal, state, and local funds, including supplemental federal funds, are captured and used in a timely manner.

"(2) Reducing short-term fluctuations in the department's workload relating to project study reports, project development, surveying, and construction inspection while still enabling the department to be plan-ready.

"(3) Facilitating the expeditious use of locally raised funds for state highway projects, recognizing that, in this instance, local governments are partners in state highway construction and that locally financed projects should not be unnecessarily delayed.

"(4) Ensuring that the cost effectiveness of contracting is considered equally with other factors when a determination of the appropriateness of contracting is made.

"(5) Ensuring that contract selection is performed in accordance with applicable state laws regarding the selection of professional architectural, engineering, environmental, or land surveying services, and to ensure the selection process avoids or prohibits unlawful or unfair procedures or activities."

Chapter 433 of the 1993 Statutes (hereafter "Chapter 433") became effective as an urgency statute on September 24, 1993. Chapter 433 makes changes to sections 14130 et seq. which, Caltrans argues, render the 1990 injunction moot. ³ Caltrans immediately revised its contracting projections for fiscal year 1993-1994 to give effect to the 1993 legislation and issued new guidelines for contracting out. (See § 14134.) Plaintiffs filed an application in the superior court for an order holding Caltrans in contempt for violating the 1990 injunction. On December 23, 1993, the court denied plaintiffs' application but indicated it would treat the matter as a motion for clarification or modification of the injunction and directed the parties to brief and argue the effect of Chapter 433 on the injunction. In response Caltrans moved that...