Metropolitan News-Enterprise


Wednesday, August 31, 2011


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C.A.: Employees of Constitutional Officers Subject to Furloughs




Employees of the state’s constitutional officers are subject to the same furloughs as others working in the executive branch, the Third District Court of Appeal ruled yesterday.

“[A]pplying the furlough order to the officers does not violate the California Constitution’s system of divided executive authority or impermissibly interfere with their statutory right to control the staffing and management of their respective offices,” Justice Ronald Robie wrote.

The ruling upholds Sacramento Superior Court Judge Patrick Marlette’s order granting a writ of mandate to then-Gov. Arnold Schwarzenegger. The writ ordered Controller John Chiang to implement furloughs for his own employees, as well as those of the attorney general, lieutenant governor, secretary of state, treasurer, superintendent of public instruction, and Board of Equalization members, totaling more than 11,000 people.

Furlough Plan

In November 2008, Schwarzenegger published a letter addressed to all state employees, announcing that in order to cope with the state’s worsening fiscal situation he was proposing a one-day-a-month furlough that would result “in a pay cut of about 5 percent.”

By December of that year, citing the worsening economy and the possibility that the state would soon lack sufficient cash to meet its payroll and other obligations, Schwarzenegger issued an executive order calling for the furlough of over 200,000 state workers on a twice a month basis, beginning Feb. 1, 2009.

In October 2010, the state Supreme Court issued its ruling in Professional Engineers in California Government v. Schwarzenegger, 50 Cal.4th 989. The high court concluded that even if the governor lacked the power to institute the furlough program at the time he initiated it, the Legislature ratified his action when it approved the 2009 budget bill the following February.

That ruling did not, however, resolve the issue of whether employees of constitutional officers could be furloughed.

Technically Moot

Robie, writing yesterday for the Court of Appeal, said the court would exercise its inherent discretion to hear the appeal, even though the issues are technically moot.

He rejected the controller’s argument that the furlough order ceased to operate as to the officers’ employees when the governor exercised line-item vetoes, which cut more from the officers’ budgets than the projected savings from the furlough plan. The justice agreed with the trial judge that the vetoes were intended to squeeze additional savings from those officers, not to substitute for furloughing their employees.

Robie went on to say that while the state Constitution differs from its federal counterpart in providing for election of certain officers independent from the governor, the governor is charged with responsibility for supervising the officers’ conduct.

He wrote:

“In any event, we need not resolve further the abstract question of the degree of independence each officer possesses with respect to the Governor. Nor must we decide whether the Governor, acting alone, possesses the authority to furlough the employees of these officers. This is because the Legislature has endorsed the Governor’s furlough plan.”

Nor, he wrote, does the furlough plan interfere with the officers’ statutory right to manage their own offices. It reduces employees’ compensation, Robie explained, but does not interfere with each officer’s authority to select the employees.

Even if there was such interference, the justice said, the court would have to defer to the Legislature’s endorsement of the furlough plan.

Robie was joined in the opinion by Presiding Justice Vance Raye and Justice George Nicholson.

The case is Brown v. Chiang, C061648.


Copyright 2011, Metropolitan News Company