Metropolitan News-Enterprise


Thursday, June 15, 2006


Page 1


Court of Appeal Invalidates State’s Agreement With Union


By a MetNews Staff Writer


Provisions of a union agreement between the state and civil service engineers limiting the state’s right to contract with private engineers conflict with Proposition 35, and are unconstitutional, the Third District Court of Appeal ruled yesterday.

Sacramento Superior Court Judge Raymond M. Cadei had enjoined implementation of the offending provisions, and Presiding Justice Arthur G. Scotland and Judge M. Kathleen Butz voted to affirm that decision. Justice Vance W. Raye dissented.

Scotland, writing for the court, labeled the action as “another round in a long-standing battle by state employees to prevent the State of California from contracting out to private companies the performance of state services.”

In November 2000, California voters approved Proposition 35, the “Fair Competition and Taxpayer Savings Act” adding Article XXII to the Constitution to allow the state to contract with private architectural and engineering firms for public works of improvement.

Proposition 35 created an exception to Article VII , which, with certain exceptions, has been interpreted by the courts to prohibit the state from contracting with private companies to perform services that can be performed by state employees.

Professional Engineers in California Government, a union representing civil service engineers, and the state entered into a collective bargaining agreement, part of which gave preference to civil service engineers over outside engineers, except under specified circumstances permitted termination of existing outside engineering contracts and transfer of the work to union engineers after the contracts were reviewed by a committee, half of whose members belonged to the union and required actions, such as termination of outside contracts, to minimize the displacement of state engineers due to outside contracts.

Private engineers Consulting Engineers and Land Surveyors of California, Inc., John M. Humber, and Harris & Associates, Inc. filed a petition for writ of mandate in the Superior Court challenging the validity of the provisions and seeking injunctive and declaratory relief.

The union argued that the provisions merely created a committee to analyze nonconfidential data to determine whether the state was incurring unnecessary costs on existing contracts, and that the preference for using state employees did not violate Proposition 35.

Scotland sided with the private engineers, saying:

“[W]e agree with the trial court’s ruling that the terms of [the agreement] ‘limit the ability of the State to contract freely for architectural and engineering services,’ and are ‘on their face, directly in conflict with Article XXII.’”

Scotland also found the provisions to be in conflict with the stated goals of Proposition 35, saying:

“The mandatory preference for civil service engineers, without a concomitant requirement of cost savings, does not ensure the best value for California taxpayers, and it undermines the goal of promoting fair competition. Moreover, common sense dictates that the review and termination of existing contracts is not conducive to speeding the completion of backlogged projects. In other words, [the] provision . . . contravenes the goals of Proposition 35 and thwarts the intent of the electorate.”

Raye, dissenting, noted that Article XXII provides that the state “shall be allowed to contract with qualified private entities for architectural and engineering services for all public works of improvement.” The majority, Raye argued, had reinterpreted Proposition 35 to provide that “[t]he state must contract with private entities.”

Raye acknowledged that, under Article XXII, the agreement provisions could not be forced on the state. However, “the limitations were not imposed the state agreed to them,” he said.

“The majority does not explain the alchemy that transforms language permitting the state to contract with private entities into language compelling it to do so,” he wrote.

The case is Consulting Engineers and Land Surveyors of California, Inc. v. Professional Engineers in California Government, 06 S.O.S. 3025.


Copyright 2006, Metropolitan News Company