Code, 14130.2, subd. Const., art. 433) (Chapter 433), reflecting broad legislative approval of private contracting by Caltrans, authorizes these contracts under the conditions set forth in that legislation and so affords a proper ground for dissolving or modifying the injunction. App. I would affirm the judgment of the Court of Appeal. We therefore hold, that in passing upon the constitutionality of a statute, the court must confine itself to a consideration of those matters which appear upon the face of the law, and those facts of which it can take judicial notice. As the Court of Appeal dissent notes, that legislative purpose may be exemplary, but it does not afford a proper ground for noncompliance with the civil service mandate. In my view, Caltrans should not have to prove the economies of any particular contract in advance of the mandated study if the whole purpose of the study is to ascertain just such information. ", The Court of Appeal next addressed the trial court's conclusion that section 14137 (directing Caltrans to continue contracts in force or awarded on or before July 1, 1993) is invalid because it purports to override the court's injunction without stating facts establishing the contracts at issue satisfied the civil service mandate. As we have seen, the California courts already permit private contracting if cost savings justify it and other applicable civil service standards are met. Moreover, the contracting authorized by Chapter 433 will not encourage a return to the spoils system of political patronage. SA-CE-750-S PERDecisioBn No . 1 implements article VII. (Fn. In addition to authorizing increased contracting flexibility until January 1, 1998, Chapter 433 contains an uncodified section which requires Caltrans and the Legislative Analyst to coordinate in the preparation of a [15 Cal. Sess.) (See Kopp v. Fair Pol. (Cal. (Lockard v. City of Los Angeles, supra, 33 Cal.2d at p. 107, 1, subd. In this regard, the prohibition against contracting out is not a direct constitutional expression: nowhere does article VII expressly say what Riley and its progeny say it means. A partial application will not be evaluated. 2d 211], italics added.). The section then contains the legislative conclusion that "Without the ability to continue a stable contracting out program, the department will not be able to perform project delivery adequately, competently, or satisfactorily, thereby necessitating the use of private consultants to supplement its in-house staff.". Co. v. Deukmejian, supra, 48 Cal.3d at p. 814), the judiciary should not interfere. as amended June 24, 1993.) PECGs top-notch lawyers, contract negotiators, lobbyists, labor consultant and media specialist represent state-employed engineers, engineering geologists, land surveyors, architects, landscape architects, air pollution specialists, and related professionals individually and collectively. Engineering. 2d 245, 828 P.2d 147].) at p. It is no small matter for one branch of the government to annul the formal exercise by another and coordinate branch of power committed to the latter, and the courts should not and must not annul, as contrary to the constitution, a statute passed by the Legislature, unless it can be said of the statute that it positively and certainly is opposed to the constitution. 361, 551 P.2d 1193]; see also Spiritual Psychic Science Church v. City of Azusa (1985) 39 Cal. 4th 555] public safety, and to provide expertise unavailable through civil service. [Citation.]" (CSEA, supra, 199 Cal.App.3d at p. Code, 14130.1; Sts. In Professional Engineers, supra, 13 Cal. fn. If a Civil Engineer applicant has submitted fingerprints with a previous application to the Board, resubmittal with a subsequent application is required if it has been24 months or more since the last submittal of fingerprints. The practice acts are Civil, Electrical, and Mechanical Engineering. The Court of Appeal majority, after reviewing the relevant constitutional and statutory principles, initially rejected Caltrans's contention that new section 14130, subdivision (a)(5), makes Caltrans's use of private consultants to assist in project delivery a "new state function" exempt from the civil service mandate. Presiding Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. (3) Contrary to Caltrans's contention, new section 14130.1, characterizing seismic retrofitting services as a "short-term workload demand," fails to constitute adequate justification for private contracting because it fails to consider the civil service staff available and obtainable to perform the work. In this regard, the burden here is not on Caltrans to validate Chapter 433, but on plaintiffs to invalidate that legislation. 490.). "However, this question is not presented by Chapter 433. 2d 355, 896 P.2d 1365] (overbreadth and vagueness attacks on hate crimes statute); Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal. (b), 14130.3. Moreover, even assuming that non-First Amendment areas exist in which application of a lesser standard of deference might be appropriate, this is not one of them. 15 Article VII does not involve "constitutionally protected rights," nor does Chapter 433 threaten such rights. Click, Professional Engineers in California Government - All Rights Reserved. 4th 585] withdraw entirely from the function of constructing or operating tollways; Caltrans maintained responsibility for such functions on other projects not covered by the legislation. v. Great Neck U. (See, e.g., Amwest Surety Ins. Of course, under Riley, Caltrans has had and continues to have the opportunity to justify specific private contracts on the basis that they are needed to assure timely project delivery unobtainable through the available state civil service. The legislature is a coordinate department of the government, invested with high and responsible duties, and it must be presumed that it has considered and discussed the constitutionality of all measures passed by it." Finally, the majority claim that nothing in its decision "would prevent Caltrans from seeking modification of the 1990 injunction based on a showing that particular contracts are justified because state workers cannot perform the work 'adequately and competently,' or as economically ." (Maj. 1247, 1251.) at p. In examining Chapter 433, it must be presumed the Legislature intended its act to be valid and to fall within the scope of its constitutional powers. VII, 1, subd. About . When it has made such judgments, we will not disturb them unless they are inherently improbable or unreasonable." That case involved the total withdrawal of a state function on an experimental basis, requiring no expenditure of state funds. Co. v. Deukmejian, supra, 48 Cal.3d at page 822, footnote 15 (attack on facial validity of initiative measure); Metromedia, Inc. v. City of San Diego (1982) 32 Cal. 1991) 947 F.2d 787, 789 [federal procurement rules require agencies to acquire goods and services at lowest possible cost to taxpayer]. 42, 486 P.2d 1242, 45 A.L.R.3d 1206].) fn. In that case, the Legislature had authorized Caltrans to contract with private development firms to construct and operate tollways under state lease, in order to secure needed transportation systems unobtainable through public financing arrangements. 1018.) Fund, supra, 30 Cal.2d at pp. No. PECG is a volunteer organization assisted by professional negotiators, consultants, attorneys, and Sacramento lobbyists and is not affiliated with any organization or union. ), New section 14130.3 finds that "recent court decisions" have resulted in the termination of certain existing private contacts awarded to minority-, women-, and disabled-veteran-owned firms, a result that is inconsistent with public contracting goals. 109.). PECG represents 14,000 state-employed engineers and related professionals responsible for designing and inspecting California's infrastructure, improving air. The results of this study could well assist Caltrans in convincing the trial court to modify its injunction. He has extensive experience and technical expertise in hydraulic and hydrological modeling, stormwater management, flood mapping and control, watershed modeling, design of hydraulic structures, and river engineering. Practices Com., supra, 11 Cal.4th at p. . The court found that since the 1986-1987 fiscal year, Caltrans has unlawfully contracted privately for engineering projects that the civil service has traditionally done; that by hiring more civil service employees, Caltrans could have the work at issue performed in a timely manner, and that Caltrans failed to justify private contracting on a cost-effectiveness or other valid basis. as amended July 14, 1993.) Based on that premise, the trial court found Chapter 433 unconstitutional and concluded, therefore, that Chapter 433 could not then be considered a change in circumstances justifying modification of the 1990 injunction. 4th 599] purpose to keep within the restrictions and limitations laid down by the constitution. Consistent with the previously discussed rules of judicial review of legislative enactments, we presume the facts and circumstances support the Legislature's implied findings absent contrary evidence." 245. Membership. Accordingly, as the trial court found in its April 19, 1994, order, Caltrans altered its contract projections for fiscal year 1993-1994 and issued new guidelines revising its earlier plan to minimize its private contracting. Website. All applicants are required to supply the Board with a full set of fingerprints upon submittal of an application for licensure/certification. It is for the Legislature to find the facts and it falls to us to respect those findings unless they are clearly wrong-wrong without reasoned dispute or the influence of opposing perspectives. Thus, an August 1993 report of the Assembly Committee on Transportation states that although "existing law" requires Caltrans to show the inadequacy of existing and recruitable staff to complete project development, Chapter 433 "would specify that Caltrans is not obligated to meet that or any other test relative to hiring to assimilation and productive use of civil service employees, and instead, can contract out at the discretion of the director." In the dissent's view, the Court of Appeal majority relied exclusively and improperly on an implied legislative finding of cost-effectiveness to permit Caltrans to resume private contracting without requiring it to prove that contracting is more economical or efficient than using state civil service employees. Caltrans identified substantial amounts of seismic retrofitting work and reimbursed work for local agencies as eligible for private contracting in fiscal year 1993-1994. 844. Const., art. v. D.O.H. ( 14130, subd. Capitol Weekly is a nonpartisan news publication covering California government and politics. . 487, 624 P.2d 1215] [holding that the State Employer-Employee Relations Act did not conflict with article VII or the merit system mandate].) Additional Information for Applicants Applying for a Waiver of the Fundamentals of Engineering (FE) Exam Environmental Engineer, Water Engineer. 161, 771 P.2d 1247] (attack on facial validity of initiative measure); Mills v. Superior Court (1986) 42 Cal. These sections appear consistent with the decisional law interpreting article VII. 589. 594.) This reading is supported by the Legislature's express finding in section 14130, subdivision (a)(3), which recites that contracting out "avoid[s] the costly process of short-time hiring and layoff while still responding in a timely manner to funding opportunities and uncertainties[. The sole aim of the act is to prohibit appointments and promotion in the service except on the basis of merit, efficiency, and fitness ascertained by competitive examination.' " (State Compensation Ins. According to Caltrans, former article XXIV was simply intended to restrict appointments and promotions in state service except on the basis of merit and competitive examination, in order to avoid favoritism and the "spoils system" in selecting among existing state employees. (f), p. at p. As Caltrans observes, in an uncodified section of Chapter 433 ( 13), the Legislature authorized a future study to compare civil service and private contracting costs to help determine the most economical mix of public and private service provision. 3d 840, 846 [245 Cal. Thus, Chapter 433, when properly interpreted, does not disregard the constitutional restriction on private contracting, but instead is consistent with the purposes of article VII. There is also anFE waiver flowchartdepicting the requirements. Fax (916) 322-0765 . 1991, ch. 11 It simply allows the Director the discretion to contract out where such a move makes economic sense. (1920) 183 Cal. Rptr. The primary question we must decide is whether intervening legislation (Stats. (See Cal. ), In finding that Chapter 433 conflicts with article VII, the majority point to an alleged absence of any empirical evidence that Caltrans is unable to perform the services in question "adequately and competently" through civil service, or that private contracting has resulted and will result in "substantial costs savings or other significant advantages" to the state. (See Professional Engineers, supra, 13 Cal.App.4th at pp. The state Civil Service Act (Gov. (See CSEA, supra, 199 Cal.App.3d at pp. 239, 583 P.2d 1281].) Plaintiffs also assert there was no objection to the trial court taking judicial notice. Sess.) Mivy James has been an IT professional for over 20 years. The dissent observed that in reaffirming its 1990 injunction, the trial court found that Caltrans's " 'contracting activity during 1993-94 is contributing to the displacement of permanent, temporary and part-time civil service staff in the performance of project development work.' 1018.) In its April 19, 1994, order, the court accordingly affirmed its prior 1990 injunction, stating that "[t]o the extent that [Caltrans] justif[ies its] contracts with private consultants on the basis of the provisions of Chapter 433 instead of a factually supported determination pursuant to sections 14131 and 14134, the contracts are invalid and [Caltrans is] in violation of the injunction." 4.) at p. 3d 903, 910 [226 Cal. In my judgment the majority, although purporting to follow settled rules, in fact apply a totally unprecedented standard for invalidating Chapter 433 without offering any justification or rationale for rejecting a century of decisional law in California. Dissenting opinions by Baxter, J., and Ardaiz, J. fn. What Constitutes a Satisfactory Reference? 4th 407, 415-416 [9 Cal. Preliminarily, we observe that the trial court's injunction of April 17, 1990, has become final, and it binds the parties to this litigation unless Chapter 433 provides ground for dissolving it. Chap. Collectively exercising their "independent judgment of the facts," the majority ultimately determine there is no "substantial" evidence to support the Legislature's enactment of Chapter 433. h240R0Pw/+Q0L)640)IcRYZlg` ~:f 2d 698]. (a)(4). (a)(2)), and on legislative encouragement of timely private contracting for state highway projects to generate maximum employment and business opportunities ( 14130, subd. 461.) In holding otherwise, the majority inappropriately substitute their judgment for that of the Legislature and improperly limit the Department of Transportation's (Caltrans's) opportunities to take advantage of private sector efficiencies. Accordingly, they have little relevance here. ), FN 4. 4th 590], It was by judicially noticing the truth of these factual findings that the court fundamentally erred. (a)(2), operative until Jan. 1, 1998.) ), CSEA thus settled the question whether cost savings would be relevant in determining the validity of private contracting for work not involving any new state functions. (1985) 40 Cal. On its face, however, Chapter 433-when properly read and viewed under settled legal principles-does not run afoul of the civil service mandate. I fail to see how this threatens the civil service system or runs afoul of article VII, which was never intended to require an ever-expanding government payroll. 4th 600] cannot be said of a statute which merely adopts one of two reasonable and possible constructions of the constitution. Section 14130, subdivision (a)(4), recites that private contracting has helped "accelerate[] nearly one billion dollars ($1,000,000,000) worth of construction projects on the state highway system. In our view, none of the express or implied provisions of Chapter 433 affords a legitimate basis for disregarding the constitutional restriction on private contracting. We are proud of our unprecedented record of delivering for our members. (41 U.S.C. Code, 14130, subd. I recognize that the protracted litigation over Chapter 433 has by now probably defeated the Legislature's intent in this regard. 116, 758 P.2d 58].) They explore the challenges and successes in building and rebuilding major infrastructure projects. " (Amwest, supra, at p. 1252, quoting Elliott, supra, at p. For instance, Government Code section 14131, which is not altered by Chapter 433, provides: "The department may contract for the services of engineers, architects, surveyors, planners, environmental 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. endstream endobj 375 0 obj <>stream to Cal. (Superior Court of Sacramento County, No. Thus, the requirements that courts presume legislative enactments to be constitutional and that such great weight be given to legislative findings that they will be upheld unless they are palpably erroneous, does not mean those findings are placed totally beyond the power of courts to [15 Cal. 2d 798, 802 ; Miro v. Superior Court (1970) 5 Cal. Moreover, although the experimentation in that case called for private entities to construct and operate the particular projects at issue, it nonetheless contemplated that Caltrans would maintain a supervisory role and " 'exercise any power possessed by it with respect to the development and construction of state transportation projects.' It would appear the majority sought to find the legislation unconstitutional, whereas long-standing precedent requires just the opposite-that the court attempt to uphold the enactment. of Equalization, supra, 22 Cal.3d at p. 244 [construing Cal. 638, 370 P.2d 342], citing Miller v. Board of Public Works (1925) 195 Cal. Founded 1962. Easy 1-Click Apply (DUNHILL PROFESSIONAL SEARCH & GOVERNMENT SOLUTIONS) System Engineer Lead - Remote job in Fairfax at Dunhill Professional Search job in Dallas, TX. XXIV, 1. Comity applicants may submit NCEES Records (formerly known as NCEES Council Records) in lieu of Work Experience Engagements/References and transcripts, but NCEES Records are not required. 2023 National Society of Professional Engineers | 1420 King St . Thus, the California Constitution Revision Commission considered and rejected an approach that would have given the Legislature open-ended authority to create exemptions from civil service in any area in which the Legislature felt that public policy would be served better by an alternative to the civil service system. Code, 18500 et seq.) (Maj. The majority in effect apply a species of "independent review" to the Legislature's factual findings, which would allow courts to decide for themselves whether the evidence supported the Legislature's determinations and conclusions or to make sure the Legislature-in the reviewing court's view-had before it "sufficient" evidence to warrant its enactment of the particular legislation at issue. ), the Legislature cannot simply override this factual finding by issuing a general legislative declaration that purports to cover the entire area of private contracting. If a Traffic Engineer applicant has submitted fingerprints with a previous application to the Board, they do not need to resubmit fingerprints with a subsequent application. 4th 588] statute invalid, when it appears to them in the course of judicial action to be in conflict with the constitution, yet they can only do so when the question arises as a pure question of law, unmixed with matters of fact the existence of which must be determined upon a trial, and as the result of it, it may be, conflicting evidence.
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