Judges rarely change their tentative decisions.
It's not clear how much money the state would have to pay out, since no one has done the calculations, but it's safe to conclude the cost would run into the millions of dollars.
The State Worker has left a message with Gov. Jerry Brown's office seeking comment.
Lawyers for the administration and two state employee unions, Professional Engineers in California Government and California Association of Professional Scientists, received Judge Steven A. Brick's tentative ruling in an e-mail from Alameda Superior Court this morning.
The unions argued that their members suffered two illegal furlough days in March 2011 because they were furloughed that much more than management.
"The annual budget legislation authorized only reductions in represented employees' compensation that would be proportionate to the reductions made to non-represented employees' compensation," the unions argued in their Feb. 3 complaint.
In his tentative ruling, Brick agreed that "proportionate" means "same percentage" in the this case.
PECG and CAPS also said that a small handful of their members in three departments that settled furlough litigation and issued back wages -- the Earthquake Authority, the Prison Industry Authority and the Housing Finance Authority -- should receive the same remedy. Brick agreed, noting that the Brown administration didn't dispute the claim.
Brick said in his ruling that he is "inclined to deny" the unions' contention that furloughing 255 scientists and engineers at the Department of Toxic Substance Control and the State Water Control Resources Board violated state law. Those workers handle hazardous substance management and remediation at military bases.
Oral arguments in the case are scheduled for 9 a.m. Friday in Oakland. We're posting Brick's tentative decision below after confirming its authenticity with the Department of Personnel Administration:
On the Petition of Professional Engineers in California Government et al. ("Petitioners") for Writ of Mandate, the PARTIES ARE TO APPEAR. The Court is inclined to GRANT the Petition IN PART, as follows:
(1) As a procedural matter, the Court is inclined to find that a petition for writ pursuant to CCP § 1085 is the proper avenue to request the sought-after relief.
(2) The writ should be granted as to employees of state agencies not funded by the annual budget act (CEA, CalHFA, CalPIA), as this is not disputed by the Respondents.
(3) The basis for writ relief under the Health and Safety Code and Water Code provisions, with regard to employees providing remediation work on military bases, is not clear. To the extent it is based upon subdivisions (b) of the cited statutes, the Court is inclined to find, first, that by their terms these provisions apply only to the executive branch, and do not bar the legislature from imposing "personal service limitations" on such employees; and further that, under PECG I, it was the legislature and the legislature alone that gave the furloughs legal effect. The "single subject rule" and authorities cited by Petitioner are inapposite, as the budget act does not contravene or modify subdivisions (b) of the cited statutes, which only bar actions by the Controller or the Department of Finance (not actions by the legislature). Petitioners have not addressed the presumption favoring the legality of the provision at issue. Nor have they explained how the disputed provision of the Budget Act concerns something other than appropriations and/or appears to be abusive (e.g., a last-minute attempt to circumvent the legislative process). (Cf. California Lab. Fed'n v. Occupational Safety & Health Stds. Bd. (1992) 5 Cal.App.4th 985; Planned Parenthood Affiliates v. Swoap (1985) 173 Cal.App.3d 1187.) Thus, the Court is inclined to deny this portion of the Petition.
However, Petitioners also cite to, and discuss, subdivision (c) of each of the Water Code and Health & Safety Code provisions at issue. It is not clear whether Petitioners contend that these provisions constitute evidence of the legislature's intent in enacting related subdivisions (b), or whether they believe that the furloughs independently violated these subdivisions. If the latter, Petitioners have not, in their discussion, cited to specific evidence or explained how that evidence would support their contentions.
(3) To the extent the Petition challenges the last two furlough days in March 2011, the Court is inclined to grant it. Section 3.91(a), while not an example of clarity in drafting, by its terms appears to require reductions ("shall be reduced") in nonrepresented employee compensation that are "proportionate" to the reductions achieved for represented employees through collective bargaining or administrative actions. "Proportionate" means "having the same or constant ratio," which is synonymous with the same percentage. Respondents' alternative interpretations of Section 3.91(a) and the term "proportionate" are not reasonable. Respondents' structural argument renders the word "proportionate" mere surplusage. Senator Ducheny's statement during debate is inconclusive, and the Governor's issuance of Executive Order S-15-10 provides no insight into the legislature's intent. Thus, the Court interprets section 3.91(a) to require reductions to nonrepresented employee pay in the same proportion as the reductions achieved for representative employees.
Respondent also challenges the admissibility of Petitioner's evidence, which demonstrates that nonrepresented employees suffered reductions in pay exceeding 8.51% on the second furlough day in March 2011. Respondents' challenges are overruled (as set forth below), including as to Mr. Toppin's supplemental declaration wherein he further explains the source of his underlying data and the method of calculation. Respondents do not challenge the substance of his analysis.
Thus, the Petition is granted as to the second and third furlough days in March 2011.
(4) Evidentiary issues. The Court is inclined to sustain Respondents' Objections (filed 4/2/12) 16-17, and 20 as lacking foundation, and overrule the remainder of Respondents' objections (including those to Petitioners' reply declarations).