The State Worker

Chronicling civil-service life for California state workers

November 19, 2009
From the notebook: More from Monday's furlough hearing, part 3

Thumbnail image for Thumbnail image for Gavel.jpgThis is the third installment in our blog mini-series 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. This link will open part 2.

And you can click here to view the most recent Furlough Fights spreadsheet, which details all 23 furlough lawsuits, including the four cases argued on Monday.

Until now, union attorneys and Gov. Arnold Schwarzenegger's lawyers have done all of the talking. But now it's Harvey Liederman's turn to speak.

A tall and trim man in a navy blue suit, he's representing CalPERS and CalSTRS.

Liederman starts by rebuffing the assertion made by the governor's attorneys that Schwarzenegger's furlough order is an exercise of executive authority that the court shouldn't review. "Courts do it all the time," he says.

Then he picks up on the argument started by CASE attorney Patrick Whalen: Employees whose pay comes from special funds shouldn't be subject to furloughs.

Click the following link to read more.

Liederman's not here to argue on behalf of anyone but his clients. "Was it reasonable to furlough union members at these two funds?" he asks.

There are special funds, he says, and then there are "especially special funds" such as CalPERS and CalSTRS. Their employees are paid from investment earnings, not tax money. Furloughing employees at CalPERS and CalSTRS accomplishes no direct or indirect benefit to the general fund and is therefore irrational, Liederman asserts.

"The Terminator can sweep the machine guns and count the bodies, friend or foe, later," he says. "CalPERS and CalSTRS are collateral damage."

As the courtroom erupts with laughter, Tyra says, "That's disrespectful."

A few minutes later, Roesch says he'll take the matter under submission and looks at the clock. It's 12:15. Lunch time.

At 1:15, Roesch calls Union of American Physicians and Dentists v. Schwarzenegger. Attorney Adam Zapala steps to the podium to speak for the union. Roesch asks him to avoid repeating arguments made earlier by the other attorneys. The cases have a lot of similarities, the judge says.

Zapala agrees, then continues the special funds argument, this time focusing on state employees like those he's representing who are "paid entirely by federal money."

He quotes from Government Code 19851, which says, in part, that the state can change employee hours "to meet the varying needs of the different state agencies."

The governor's across-the-board furlough policy is a "sledgehammer" that fails to take into account things like funding source or outcomes such as delayed services at the state's Disability Determination Services Division. But the law, Zapala says, "requires the government to use a scalpel" and perform "an individualized analysis," when cutting employee hours. That wasn't done, so the furloughs are irrational.

Tyra returns to the "labor parity" argument. The governor doesn't want to have "Employee A sitting right next to Employee B" doing the same work with one on furlough and the other working a full schedule based on "the fortuitous circumstance of how that (furlough-free) position is funded ... The labor parity justification is reasonable."

Yamada notes that the state's research shows that only five departments and 1,200 salaries receive no general fund money whatsoever, a "de minimis" portion of the state work force. "We're talking about a very small segment of employees."

Moments later, Zapala says, it's "certainly not de minimis" to his clients. "It's a 15 percent pay cut."

Tyra:: Across-the-board furloughs are "the height of rationality," and the court's "picking and choosing" who gets furloughed and who doesn't "would violate segmentation of powers."

Roesch takes the arguments under submission. Next up: SEIU Local 1000 v. Schwarzenegger.

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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


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