The State Worker

Chronicling civil-service life for California state workers

November 17, 2009
From the notebook: More from Monday's furlough hearing, part 2

This is the second installment about what happened on Monday in Alameda Superior Court Judge Frank Roesch's courtroom as lawyers debated state worker furloughs. Click here to read part 1. And you can click here to view the most recent Furlough Fights spreadsheet, which details all 23 furlough lawsuits.

The mid-morning break ends at 10:45. Attorneys for the governor and CCPOA again stand before Roesch, who asks whether the union had asked for an exemption. Neither side says that they are aware of anything like that. Schwarzenegger lawyer David Tyra notes that CCPOA isn't timid about pressing legal and procedural buttons to get what it wants. "CCPOA is a very active union," he says.

Gregg McLean Adam insists that "the law is being violated right now" because of arguments he made earlier. While 15 percent of CCPOA members may have redeemed all of their furlough hours, "this case is about the other 85 percent." CCPOA isn't even challenging the governor's executive order, Adam says, "We're challenging the implementation."

Roesch takes the matter under submission. "I'll have something for you in the mail," he says.

The CCPOA attorneys step aside as the judge announces the next case, California Attorneys, Administrative Law Judges and Hearing Officers in State Employment v. Schwarzenegger.

Click the link below to read the rest of this post.

Attorneys representing the State Controller and the California Earthquake Authority cluster near CASE attorney Patrick Whalen, who is standing behind a podium on my left. Schwarzenegger attorneys Tyra and Will Yamada stand next to a podium on my right. They won't be moving for a while. This is only the second of four lawsuits they're arguing on behalf of the governor.

Harvey Liederman, representing CalPERS and CalSTRS, stands to Whalen's right, not quite halfway between the opposing parties.

CASE is arguing that special fund agencies shouldn't be subject to furloughs, especially those that take no general fund money and whose money can't be loaned out to the general fund. The state says that there are five departments or agencies that fall into this category. CASE figures that there are 13.

Whalen says that state law allows the borrowing of special-fund department money, "but only if it has no impact to the lending program. For anyone to deny that closing three days per month has no impact is nonsensical."

Whalen refers to questions he put to more than 60 state agencies and departments, asking how furloughs have impacted operations. "Seventeen said that backlogs and workloads increased since furloughs' inception," he says. Overtime and outside legal contracting is up, and state income tax from state payroll is down.

Whalen's conclusion: Furloughs haven't saved the state money. Instead, the policy has "cost the state tens of millions of dollars." They're irrational and unreasonable because they damage government and the needs of each department weren't considered with the across-the-board furlough order.

Roesch asks, "Doesn't the governor's emergency power have to be limited to the emergency? What was the emergency? I don't know. If it's a recession that lasts two years, how can that be an emergency?"

Tyra says the economy's collapse, the banking crisis, California's foreclosure crisis and more had created an emergency for state finances so severe that the Controller had to issue IOUs: "There was no money in the (state's till)."

And when will it end? "Not any time soon," he says, pointing to the governor's recent remarks that the state's revenue is already $7 billion below projections for this fiscal year.

Roesch: "So is it an emergency if we can't see that it will end? When does it change from an emergency to this is the way life is?"

Tyra argues that CASE is trying to usurp the governor's power: "(CASE is saying), 'We don't like the way the governor exercised his authority, so we'll just come in here and second guess him.' It's not a matter of, 'If I'd been in the governor's chair, I'd have made a different choice.'"

The across-the-board order, with a few neccessary exceptions such as CHP and CalFIRE, is perfectly rational "to maintain labor parity," Tyra says.

The logic: The governor, as the state employer, deals with employees by bargaining unit, not by funding source. Since most departments get at least some money from the general fund and other sources, parsing furloughs by origin of payroll funding would create a situation where employees doing exactly the same job would suddenly have different working conditions because some would be furloughed and others wouldn't.

That would create an untenable workplace environment, Tyra said.

"It certainly is reasonable (for the governor to conclude), 'To avoid this I'll have a 'shared pain' approach," he said. "Whether that is so beyond the bounds of reason, that standard hasn't been met here." The order met the overall financial needs of the state, which made the order "a reasonable act of discretion."

Yamada noted that 49 of 54 departments analyzed by the state had "borrowable funds" and the the Legislature (which has authority to set state employee pay), agreed to a budget that included savings equal to three across-the-board furlough days per month.

That brings Roesch back to the emergency question: "Why is it that an emergency can last 17 months when the Legislature goes to work every day? Where is the boundary of what the governor can do when the repository of this power (to set employee pay) rests with the Legislature?"

Moments later, Roesch reframes the question to Tyra: "How do you define emergency? What is an emergency? Anything bad that happens?"

Tyra: "An emergency doesn't have to be limited by duration."

Tyra circles back to the question of whether furloughs have harmed government to the extent that the policy should be reversed.

"(CASE) has to show harm to the public. It's not enough to suggest that employees will have to work a little harder to keep up production. Inconvenience is not synonymous with harm or damage to the agency."

Next: Harvey Liederman compares furloughs to machine gun fire and talks about "extra special fund" agencies.

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About The State Worker

Jon Ortiz The Author

Jon Ortiz launched The State Worker blog and a companion column in 2008 to cover state government from the perspective of California government employees. Every day he filters the news through a single question: "What does this mean for state workers?" Join Ortiz for updates and debate on state pay, benefits, pensions, contracts and jobs. Contact him at (916) 321-1043 and at jortiz@sacbee.com.

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