The State Worker

The State Worker continues to hear from state employees who are complaining that a recent furlough lawsuit settlement between SEIU Local 1000 and the Brown administration isunfair.

The complaints run along two tracks. One comes from managers and supervisors in the five "off-budget" agencies named in the settlement. They're not represented by SEIU or any other unions and aren't part of the furlough agreement.

Callers have pointed out that when a union reaches a contract agreement at the bargaining table that the managers and supervisors attached to those covered workers usually receive similar terms.

The exempt employees calling and emailing us about the furlough settlement think the same should apply here to the furlough back pay agreement. Of course, that decision is up to the Brown administration and/or the agencies.

The other complaint comes from state worker blog users who think that settlement provisions that awarded back pay to rank-and-file workers in five "off budget" agencies unfairly and arbitrarily single out a select few employees for a special benefit.

It's a twist on the complaints we heard when employees working for constitutional officers avoided furlough. Ditto when the courts decided State Compensation Fund Employees were illegally furloughed awarded them back pay.

SEIU has said that it got the most it could from a losing legal hand.

What do you think?

We've heard from several state workers who aren't happy that SEIU Local 1000 settled its furlough litigation in exchange for back wages for 700 or so of its members working in "off-budget" agencies.

Local 1000 President Yvonne Walker has said that the union's legal team advised that broader litigation wasn't likely to win, so the union cut its losses and took what it could get from a settlement.

Paul Warrick, an associate governmental program analyst, sent an email to The State Worker that hits the tone of the complaints we've heard. We're publishing his email here, unedited and with his permission. He's speaking for himself, not his employer, colleagues or Local 1000:

Big whoop! Someone (or SEIU) should have pursued the larger Federal issue of equal pay for equal work. Everyone who receives a state payroll check should have been furloughed or no one should have been furloughed. Furloughs were happenstance. If you just happened to be an Office Technician, Staff Services Analyst, etc. in the wrong agency (based on funding source or other criteria), you got furloughed while your neighbor who was also an OT or SSA, but worked for another agency didn't get furloughed. It's just ridiculous.

Paul Warrick DSS

With just 400 to 450 words for our weekly State Worker column, some of what we learn each week never sees print. Column Extras give you the notes, the quotes and the observations that inform what's published.

Today's State Worker column breaks down which unions are in and which are out of the court fight over furloughs. The California Correctional Peace Officers Association and the California Statewide Law Enforcement Association are the latest to lay down arms.

CCPOA spokesman JeVaughn Baker said that the weight of several court decisions favoring the state pushed the union to stop its litigation: "We decided it's in the best interest of the association to focus on other issues."

SEIU Local 1000 and California Attorneys, Administrative Law Judges and Hearing Officers in State Employment also recently dropped their furlough litigation.

Meanwhile, the state's engineers and scientists are Alameda Superior Court No. RG10630312
Original petition: CCPOA v. Schwarzenegger (requires Java)

CSLEA's request for dismissal, Alameda Superior Court No. RG10507081
Original petition: CSLEA v. Schwarzenegger

CCPOA's request for dismissal: 9th U.S. Circuit Court of Appeals
Original Complaint: Newton v. Schwarzenegger

While two unions have settled the last remnants of their legal battles against state worker furloughs, two others continue to fight.

Professional Engineers in California Government and California Association of Professional Scientists filed opening arguments against furloughs in Alameda Superior Court on Friday. The unions are asking the court to set aside the furlough orders "to the extent that they were unlawful and the employees represented by Petitioners should be made whole for unauthorized reductions in their compensation."

Their arguments include two new twists.

As part of its agreement with Gov. Jerry Brown's administration, SEIU Local 1000 has filed requests for dismissal of five furlough lawsuits in Alameda, Sacramento and San Francisco superior courts.

Click here for background on the furlough litigation between the union and Brown.

The following links open Local 1000's applications to have the cases dismissed. If you want more information about each, click on the county in the list below to open the court's document viewer, plug in the case number, and download the complaints.

Alameda Case No. RG10494800
Alameda Case No. RG10507922
Alameda Case No. RG094567750
Sacramento Case No. 34-2009-80000150-CU-WM-GDS
San Francisco CPF09509782

IMAGE: www.yolocourts.ca.gov

The union representing the state's legal professionals and Gov. Jerry Brown's administration have agreed to settle their furlough fight.

The deal returns wages lost to furlough to about 24 members of California Attorneys, Administrative Law Judges and Hearing Officers in State Employment. In exchange, the union is dropping its last two furlough lawsuits.

The agreement affects only CASE members in five departments that don't receive legislative budget appropriation: First 5 California, the Prison Industry Authority, the California Earthquake Authority, the California Housing Finance Agency and the California State Lottery.

SEIU Local 1000 recently agreed to a similar settlement.

The CASE rationale, which you can read below or by clicking here, can be summed up in five words: "Take what you can get."
CASE memo to members

Our report in today's Bee quotes SEIU Local 1000 President Yvonne Walker talking about the union's decision to settle its furlough litigation against the state. Here are highlights from her interview with The State Worker:

On working with Democratic Gov. Jerry Brown compared with his predecessor, Republican Arnold Schwarzenegger:

"What a difference a governor makes. ... He actually respects workers and the services we provide Californians."

On the state's furlough policy and Brown's position on it:

"We've said all along the furlough plan was a bad plan. It not only jeopardized working people, but came at a great cost to the state. This governor did the right thing. He looked at it and understood that we had the opportunity to say, 'How do we close out this ugly chapter in the state's history?' "

On how the deal came together:

"The governor's attorneys called and said, 'Can we settle this?' and we said, 'Yes.' "

On arguments that the agreement benefits a relatively small group of SEIU members at the expense of pursuing lawsuits that could benefit the vast majority of union-covered state workers:

"Realistically, those four lawsuits didn't have the potential to do something for everyone. We lost the majority of our cases. Even when your cause is righteous, going to court is a crap shoot."

PHOTO CREDIT: Yvonne Walker speaks at a news conference responding to Gov. Schwarznegger's furlough plan for state workers, Friday Dec. 19, 2008. Sacramento Bee / Brian Baer

Correction, 2:57 p.m.: An earlier version of this post incorrectly stated that the Office of Administrative Hearings is one of the five departments included in the SEIU settlement.

Roughly 700 state workers covered by SEIU Local 1000 will receive back wages from an furlough lawsuit agreement between the union and Gov. Jerry Brown's administration.

The deal, which we first reported this afternoon, also dumps four much larger furlough lawsuits the union was pressing in Northern California trial courts.

Only Local 1000 employees at First 5 California, the Prison Industry Authority, the California Earthquake Authority, the California Housing Finance Agency and the California State Lottery will receive back pay without interest for days that they were forced to take off without pay in 2009 and 2010. State workers represented by other bargaining units and managers in those organizations aren't part of the settlement, said Lynelle Jolley, spokeswoman for the state Department of Personnel Administration.

The agreement is a good deal for the state on two fronts:

• It costs taxpayers nothing, since all five departments are completely self-funded -- which was the basis of the argument that their employees shouldn't have been put on furlough in the first place.

• SEIU also agreed to drop four other furlough lawsuits pending in Alameda, Sacramento and San Francisco courts, Jolley said. Those lawsuits had the potential to cost the state tens of millions of dollars in back wages and interest for roughly 80,000 of the 95,000 workers the local represents. The litigation argued that for a variety of reasons furlough policy itself was illegal, not merely its application to a select departments.

IMAGE: www.yolocourts.ca.gov

Employees in five departments will receive back pay for wages lost to furloughs according to a settlement reached between labor and Gov. Jerry Brown's administration.

The deal includes workers at First 5 California, the Prison Industry Authority, the California Earthquake Authority, the California Housing Finance Agency and the California State Lottery, according to sources familiar with the agreement who spoke on condition of anonymity because the affected employees hadn't been told as of this morning.

The number of employees affected and the amount of money they'll receive aren't yet known, although one source said that the back pay will not include interest. The departments are all relatively small.

We expect more details later today as the unions and the departments divulge them to their employees.

The settlement lays to rest union litigation that argued that it was illegal to furlough employees in departments that received a significant portion of their budgets from outside the state's beleaguered general fund.

IMAGE: www.yolocourts.ca.gov

This is the second installment in a series of posts counting down the most-read State Worker blog items and columns of 2011.

We started fielding a few calls, emails and Facebook messages in late September from state workers wondering if furloughs might return. The reason: A provision in SEIU Local 1000's contract requiring employees take 12 unpaid leave days over 12 months would expire at the end of October. So would a corresponding no-furlough guarantee.

The state workers who contacted us wanted to know: Would Gov. Jerry Brown and the Legislature bring back furloughs once the leave program ended?

This Oct. 25 post explained why that wouldn't happen: "More state workers to return to full hours and pay"

An Alameda Superior Court judge has pushed back a hearing to debate whether employees in five or six "special fund" departments were illegally furloughed.

Judge Frank Roesch originally scheduled Yvonne Walker and SEIU Local 1000 v. Schwarzenegger for hearing at the end of this month, with the first deadline for filing documents with the court set for Friday.

Click here for background on the case, which concerns employees at First 5 California, the Prison Industry Authority, the California Earthquake Authority, the California Housing Finance Agency and the Office of Administrative Hearings. Local 1000 is hoping to add the California State Lottery Commission to the list.

Local 1000 and the Department of Personnel Administration requested more time. Judge Patrick Zika granted it on Monday. The hearing is now scheduled for Feb. 16 The administration's brief in defense of the furlough policy is due Jan. 23. The union has until Feb. 2 to file its response.
Alameda furlough litigation continuance

A remnant of the "special funds" furlough litigation pressed by SEIU Local 1000 is set for a court hearing later this month.

The matter, Service Employees International Union Local 1000 and Yvonne Walker v. Arnold Schwarzenegger, revisits the union's argument that furloughs were illegally applied to departments that receive money outside of the general fund.

Local 1000 initially won that argument for 63 departments, but San Francisco's 1st District Court of Appeal in July overturned that ruling. It made exceptions for five departments that it said deserved further argument in the lower court: First 5 California, the Prison Industry Authority, the California Earthquake Authority, the California Housing Finance Agency and the Office of Administrative Hearing. Click here for more background.

The local asked the California Supreme Court to consider the case. It refused.

The case covering those five departments -- and a sixth that the union wants to bring into the case, the California State Lottery Commission -- gets its first court hearing on Dec. 29 at 3:45 p.m. in Alameda Superior Court in Oakland. The state has until Friday to file its arguments with the court. The union has until Dec. 23 to file a response.

We expect the Department of Administration, which handles furlough litigation for the state, to ask for a continuance, given the relatively short time between Alameda Superior Judge Frank Roesch's Nov. 22 order and the Friday deadline for the state's filing.
Walker and SEIU Local 1000 v. Schwarzennegger

An attorney with SEIU Local 1000 says the union will continue to press litigation against "special fund" furloughs, even though the courts have slimmed down the case to covering employees in just a handful of state departments.

Local 1000 had identified 63 "special fund" departments that it said shouldn't have been included in the Legislature's furlough authorization. The union won that argument in Alameda Superior Court, but San Francisco's 1st District Court of Appeal in July overturned that ruling. It made exceptions for five departments that it said deserved further argument in the lower court. (For more background, click here.)

SEIU appealed to theCalifornia Supreme Court, which refused take up the matter.

The union said it would keep fighting for its members in those five departments -- First 5 California, the Prison Industry Authority, the California Earthquake Authority, the California Housing Finance Agency and the Office of Administrative Hearings -- even though the remanded case now covers relatively few of its 95,000 employees.

The State Worker caught up with SEIU Local 1000 attorney Felix De La Torre to ask about the status of the case. Is the union still planning to continue the fight? If so, what's the hold up? Here's part of an email De La Torre fowarded to us last week, which is his response to an SEIU member who asked the same question:

As we mentioned last month, November is the first pay period that exempt employees and workers covered by SEIU Local 1000 return to full hours and pay (which will show up on the Dec. 1 paycheck.)

We're still receiving a trickle of email and phone calls from employees who either haven't heard or don't believe it. So we're posting the highly technical proof: the Nov. 1 pay letter from the Department of Personnel Administration to the State Controller's Office. The key sentence:

The State Controller's Office will process an employment history mass update to delete
the Personal Leave Program (PLP) ... for rank-and-file employees in bargaining units 1, 3, 4, 11, 14, 15, 17, 20, and 21, as well as excluded, exempt, and statutory employees.

Here's the pay letter:

Another union furlough argument fell Monday when San Francisco's 1st District Court of Appeal told a trial court to change a favorable ruling to an unfavorable one against the California Correctional Peace Officers Association, which had claimed the policy as carried out for its members was an illegal pay cut.

The appellate court's decision in Brown v. Superior Court of Alameda County was a blow to the union whose 32,000 or so members stood to collectively gain millions of dollars -- no one is sure exactly how much -- in back pay and interest had the decision gone the other way. CCPOA says that it is deciding its next move in a case that stretches back more than two years.

CCPOA did win that argument in Alameda County Superior Court, claiming that "self-directed" furloughs -- which cut a prison officer's pay but deferred his or her corresponding time off -- violated state laws, including its minimum wage statute.

The appellate court action bogged down while attorneys for the union and then-Gov. Arnold Schwarzenegger argued over whether the trial court decision could be appealed and while other litigation that examined furlough authority and furlough process took the legal limelight.

Blog backs review your thoughtful and provocative online comments, amplify points, answer questions, correct our mistakes and humbly accept your warranted criticism.

Sharp-eyed blog user WilliesCons had a question about our post that the California Supreme Court had refused to take a "special funds" furlough case that SEIU Local 1000 had won at the trial court level and then lost when the government appealed. Weren't there some departments that the 1st District Court of Appeal said might still be in play for a successful "special funds" argument?

The California Supreme Court has refused a union request to consider whether furloughing employees in so-called "special fund" departments was illegal.

The court refused the petition for review by SEIU Local 1000 on Wednesday. The union had hoped to have another crack at litigation that it won in Alameda Superior Court nearly two years ago and then lost last July in San Francisco's 1st District Court of Appeal.

The high court's refusal to look at SEIU's case underscores that the special funds argument against furloughs is essentially dead, as legal observers have been telling The State Worker for quite some time.

Click here for the court docket that lays out the events leading up to the Supreme Court's refusal to review the case.

IMAGE: www.yolocourts.ca.gov

Several State Worker blog users have asked about the status of two furlough cases in San Francisco's 1st District Court of Appeal. The short answer: The court could issue rulings in either case any day now.

Less than a week after lawyers debated whether employees of constitutional officers should have been furloughed like state workers elsewhere, Sacramento's 3rd District Court of Appeal said that there's no special status for the constitutionals' staff.

The unanimous ruling by Justices Vance Raye, George Nicholson, Ronald Robie, released this afternoon, doesn't affect the pay of the roughly 16,000 employees who work in departments and agencies headed by officials elected via statewide vote, including the lieutenant governor, the secretary of state, the treasurer, the controller, the attorney general, the superintendent of public instruction, the insurance commissioner and the Board of Equalization.

None went along with then-Gov. Arnold Schwarzenegger's veto order in February 2009, arguing that independently elected executives didn't have authority to control their staffing. The administration sued in Sacramento Superior Court and won. The constitutionals appealed the decision and kept their employees on full hours and pay.

Three justices from Sacramento's 3rd District Court of Appeal took turns on Wednesday, grilling an attorney who argued that they should overturn a lower court's ruling that constitutional officers' employees should have been furloughed along with other state workers.

Meanwhile, the panel lobbed legal softballs to a Brown administration lawyer who contended that the constitutional furlough issue had substantially changed since Gov. Arnold Schwarzenegger first sued the constitutionals in February 2009 to force them to comply with his furlough order.

San Francisco's 1st District Court of Appeal has set Sept. 1 at 9 a.m. to hear oral arguments in California Attorneys, Administrative Law Judges and Hearing Officers in State Employment v. Schwarzenegger.

The case is the last chance for the appellate court to confirm one of three rulings by an Alameda Superior Court judge that state workers in so-called "special fund" departments were illegally furloughed.

Click here to see the court's case calendar.

Prompted by our recent posts on the "special fund" furlough cases in the state's 1st District Court of Appeal in San Francisco, several blog users have called and emailed for the status on the fourth -- and legally distinct -- furlough case, CCPOA v. Schwarzenegger.

This gets a bit complicated, so hold on ...

A hearing in the last undecided "special fund" furlough case in San Francisco's 1st District Court of Appeal has been delayed until September.

California Attorneys, Administrative Law Judges and Hearing Officers in State Employment v. Schwarzenegger was set for hearing on Aug. 3. There's no specific date set for the September debate. The court will do that later, according to a notice published just a few minutes ago.

The case appeals the third of three key furlough decisions issued in 2009 by Alameda Judge Frank Roesch that found furloughing workers in so-called "special fund" departments was illegal. His decisions against the state in the first two cases have been either partially or entirely overturned.

IMAGE: www.yolocourts.ca.gov

San Francisco's 1st District Court of Appeal has set Aug. 3 at 9 a.m. to hear arguments in California Attorneys, Administrative Law Judges and Hearing Officers in State Employment v. Schwarzenegger.

This is the third of three key lawsuits in which Alameda Superior Court Judge Frank Roesch decided that employees in so-called "special fund" departments had been illegally furloughed.

Three-judge panels in the same appellate court have entirely or partially overturned Roesch decisions in the other two cases. This link gives you background and court documents on SEIU Local 1000's 92-percent loss last week. Click here for our report on the 1st District Court's decision in Union of American Physicians and Dentists v. Schwarzenegger.

From where we sit, CASE is pushing a legal boulder uphill, given the first two special fund lawsuit decisions.

Your humble blogger was away from work the last few days, so we're just now catching up with a backlog of events and e-mails, including this week's oral arguments in SEIU Local 1000 v. Brown before San Francisco's 1st District Court of Appeal.

The court heard both sides and now has up to 90 days from Wednesday's hearing to render a decision. You can view the court's case docket here.

The case (formerly SEIU Local 1000 v. Schwarzenegger) continues debate over whether employees in so-called "special fund" departments were illegally furloughed. This May 27 item and its companion June 3 post can give you more context and court documents.

At stake: millions of dollars in wages lost to furloughs plus interest for tens of thousands of state employees in those special fund departments.

The Union of American Physicians and Dentists made a similar argument in another case, won in the lower court but then lost on appeal with a different panel of justices in the 1st District Court.

A third special funds case on appeal, California Attorneys, Administrative Law Judges and Hearing Officers in State Employment v. Brown, also is with the 1st District Court. There's no oral argument date set yet. Click here to see the court's calendar for that case.

The best that state workers can hope for at this point is conflicting appellate court decisions. If at least one of the 1st District Court panels upholds the lower court's ruling, the California Supreme Court would almost certainly have to specifically address the special funds argument that it avoided in the seminal PECG v. Schwarzenegger decision last October.

IMAGE: www.yolocourts.ca.gov

So what's a "special fund department," anyway?

That's a key question that San Francisco's 1st District Court of Appeal wants answered as the June 15 date for oral arguments in SEIU v. Schwarzenegger approaches.

As we reported last week, the court asked the Gov. Jerry Brown's administration and SEIU Local 1000, to answer a series of questions. Several focused on figures provided by Veronica Chung-Ng, a finance employee who found that 30 of 69 departments SEIU orginally declared were "special fund" actually received no general fund money. She also found that 62 of the 69 had money that the general fund could borrow.

A few blog users have asked if we could dredge up Chung-Ng's data. We combed though a few dozen blog posts with links to court documents and finally turned up this item, which contains a link to the court filing with the Chung-Ng declaration and spreadsheet.

Here's how to find the court document (you'll need Java to download the file):

Click here to open the file on the court document server.
The Chung-Ng declaration and list of departments are contained in the 12 pages under file No. 16249126 in the list on left margin of the page. The spreadsheet that breaks down department funding starts on page 8.

If you're a furlough lawsuit junkie (and you know who you are) the latest twist in SEIU Local 1000 v. Schwarzenegger is tailor-made for you.

Last week, San Francisco's 1st District Court of Appeal revived debate in a case that appeared was headed for a ruling. It's one of three lower court decisions that the Schwarzenegger administration lost and appealed -- and now carried on by Gov. Jerry Brown -- to overturn a trial court decision that so-called "special fund" departments should have been exempt from furloughs.

The governor has already won one of the appeals, but if the unions win at least one of the other two, it's likely the whole thing will go to the state Supreme Court. Hundreds of millions of dollars in back pay and interest are at stake.

Last week the 1st District Court vacated an earlier order that put SEIU on a path for a ruling. It ordered attorneys for the union and the state to gear up for oral arguments that must address a total of 17 legal questions. Many probe how to define a "special fund" department. Others go to earlier administration arguments about gubernatorial furlough authority.

On Monday the court set June 15 at 9:30 a.m. for the debate.

Here are the questions it put to both sides:

State workers paid with federal money or other sources outside of the general fund were legally furloughed by former Gov. Arnold Schwarzenegger, according to a court ruling issued late Monday.

The decision published by San Francisco's 1st District Court of Appeal reverses a lower court decision that parsed the legality of furloughs by the source of an employee's pay and deals a blow to a key union argument against the policy.

Union of American Physicians and Dentists v. Brown (formerly UAPD v. Schwarzenegger) was one of three parallel cases that successfully argued in trial court in 2009 that the furlough policy was illegal. Alameda Superior Court Judge Frank Roesch reasoned that Schwarzenegger's blanket furloughs failed to take into account the "varying needs of the different state agencies" as required by state law and that closing special fund departments three days per month illegally interfered with their "respective missions."

San Francisco's 1st District Court of Appeal has upheld a lower court ruling that former Gov. Arnold Schwarzenegger illegally furloughed State Compensation Insurance Fund employees.

Department of Personnel Administration spokeswoman Lynelle Jolley said that she couldn't comment on either the decision or whether the Brown administration would continue to press the state's case, since attorneys still needed to review the ruling.

CASE v. Edmund G. Brown et al. started in San Francisco Superior Court as CASE v. Arnold Schwarzenegger et al. A little more than two years ago, Judge Peter Busch ruled that furloughing State Fund legal staff violated a law that protects the fund from "staff cutbacks."

Click here to read the appellate court's decision.

The appellate court also dismissed an appeal in a similar case involving State Fund employees covered by SEIU Local 1000, which leaves standing the lower court's decision in favor of the union.

Editor's note, 4:08 p.m.: The broken link on this post has been repaired, and the item is updated with more information from the court hearing this morning.

Attorneys for labor and the government met in San Francisco this morning to argue whether state workers in so-called "special fund" departments should have been exempt from furloughs that were put in place during Gov. Arnold Schwarzenegger's administration.

The 1st District Court of Appeal heard arguments but didn't hand down its ruling today, said Lynelle Jolley, spokeswoman for the Department of Personnel Administration.

The court has 90 days to make a decision. In this case, it could rule for one side or the other or return the matter to the Alameda trial court for further argument and a ruling there.

Editor's note, 1 p.m.: This post has been edited to clarify that the unions are continuing to fight furloughs in court.

Six state employee groups that had renewed their furlough court fight last month have decided to drop the preliminary injunction that sought to stop furloughs, although they are continuing the litigation against the policy itself.

California Attorneys, Administrative Law Judges and Hearing Officers in State Employment this morning told their members of the coordinated decision to withdraw a motion for preliminary injunction in Alameda Superior Court. The lawsuit sought to stop furloughs for state workers in unions without contracts that had been ordered by former Gov. Arnold Schwarzenegger last summer.

As we reported earlier this month, the renewed lawsuit had named Gov. Jerry Brown as defendant, since he took over after Schwarzenegger was termed out.

"In light of the fact that all of the bargaining units have now secured tentative agreements, and in light of the administration's decision to end furloughs on April 1, 2011 for all units regardless of whether the MOUs have been ratified by that date, the plaintiffs determined that there would be nothing to enjoin on April 8, 2011," said the letter from the CASE board of directors.

Officials with CASE, Professional Engineers in California Government, California Correctional Peace Officers Association, California Association of Professional Scientists, International Union of Operating Engineers and Association of California State Supervisors all agreed to drop the lawsuit, according to the CASE memo.

That settles the fight over stopping the last furlough order, but the battle over the furlough policy will continue, the CASE board said:

"This action in no way affects or limits our ability to seek damages/back pay for members of Bargaining Unit 2 who were furloughed. The trial on the merits of our challenge to furloughs remains on calendar, and is presently set to begin this July. We will continue to keep you updated on the progress of all pending litigation as events develop."

Click here to read the CASE e-mail. Here's the court filing:
Notice of Withdrawal

IMAGE: www.yolocourts.ca.gov

Editor's note: This post has been changed to clarify the impact of furloughs on employee pay for the 2010-11 fiscal year.

Five of six state employee unions without contracts whose members are furloughed three days per month have asked an Alameda Superior Court judge to stop the policy.

Professional Engineers in California Government, California Association of Professional Scientists, California Correctional Peace Officers' Association and California Attorneys, Administrative Law Judges, and Hearing Officers in State Employment are the union plaintiffs in the lawsuit now before Judge Steven Brick.

The Association of California State Supervisors, which speaks on behalf of management-level exempt workers, is also a party to the lawsuit.

California Statewide Law Enforcement Association didn't join the other unions in the litigation, which names Gov. Jerry Brown as defendant.

A hearing is set for Friday, April 8, at 9 a.m. in Alameda Superior Court.

As we reported this morning, a furlough case hearing originally scheduled for 9:30 a.m. today before the 1st District Court of Appeal was put off until next month.

We now know why. Lynelle Jolley, spokeswoman for the Department of Personnel Administration, said that one of the justices who was supposed to hear the case was ill.

Look for a new date for oral arguments in Service Employees International Union Local 1000 et al. v. Schwarzenegger et al to be set for late next month.

San Francisco's 1st District Court of Appeal has delayed oral arguments that were scheduled for this morning to debate one of the "special fund" furlough cases still active from former Gov. Arnold Schwarzenegger's administration.

The case, Service Employees International Union Local 1000 et al. v. Schwarzenegger et al., was set for oral arguments at 9:30 a.m. The court decided on its own to push back the date. It didn't give a reason for the postponement.

Here's the Tuesday entry on the docket on 1st District Court's website:

On the court's own motion, oral argument is continued to the March calendar, date and time to be advised.

Click here for more background on the case.

An appeals court has set a Feb. 23 hearing to debate whether state workers in so-called "special fund" departments have been illegally furloughed.

SEIU v. Schwarzenegger involves three Alameda Superior Court decisions that determined furloughs for special-fund departments were irrational, arbitrary and interfered with those departments' ability to legally function. The rulings, which were consolidated when Gov. Arnold Schwarzenegger appealed his loss to San Francisco's 1st District Court, affected employees covered by SEIU Local 1000, the Union of American Physicians and Dentists and California Attorneys, Administrative Law Judges and Hearing Officers in State Employment.

The case went on hold while the California Supreme Court took up PECG v. Schwarzenegger, which involved the larger question of whether the governor could unilaterally impose furloughs. (No, the court said on Oct. 4, but the Legislature can and did by approving a budget that assumed furlough savings.)

Then the 1st District Court told the SEIU parties to submit new arguments in light of PECG. They did, so now we have a hearing date. Whether it will go off isn't clear. The Brown administration has asked for hearing delays in other labor litigation, including another furlough case (involving State Compensation Insurance Fund employees) with the 1st District Court. The court granted the delay in that matter.

IMAGE: www.yolocourts.ca.gov

Negotiators for the California Association of Professional Scientists met with DPA Director Ron Yank on Thursday and pressed for an immediate end to furloughs, according to an e-mail sent to union members on Thursday:

Yank responded by confirming the Governor's initial position in these negotiations, which are outlined in the current fiscal year budget (2010-11), and Governor Brown's budget proposal for the next fiscal year (2011-12).

The current budget -- the last one under Governor Schwarzenegger -- authorizes continued mandatory furloughs of three days per month in order to achieve budget savings for bargaining units without a contract. The current budget expires on June 30, 2011, so mandatory furloughs will continue until one of three things happen: Governor Brown orders them stopped; there is an agreement between CAPS and Governor Brown to end them; or a court intervenes and orders them halted.

Yank "pledged to negotiate in good faith," CAPS reports. Click here to read the entire union e-mail.

Correction, Jan. 20, 11:30 p.m.: An earlier version of this post incorrectly reported that attorney David Tyra signed the letter submitted to the 3rd District Court of Appeal.

Citing "the unique circumstances" of transition to a new administration, attorneys representing Gov. Jerry Brown and Attorney General Kamala Harris have asked an appellate court to push back deadlines for submitting briefs in what has been a running feud over furloughs between the executive branch and other statewide-elected officials.

The request asks the 3rd District Court of Appeal in Sacramento to add at least 30 days to the Jan. 26 date that the first documents are due. The court had said on Jan. 11 that it wouldn't grant any extensions.

110114 Newton v. Schwarzenegger ruling
Update, 1:49 p.m.: This story has been updated with a response from CCPOA.

A judge in San Francisco has struck down a class action lawsuit over correctional officer furloughs that alleged the policy violates federal labor laws. The case is the first furlough litigation orally argued by state attorneys since Gov. Jerry Brown took office on Jan. 3.

"We are disappointed in the court's ruling today and will be reviewing the decision to determine what steps to take next." said Ryan Sherman, spokesman for the California Correctional Peace Officers Association, which backed the lawsuit.

The ruling by U.S. District Court Judge Vaughn Walker comes just one day after arguments in Newton v. Schwarzenegger. The union's attorneys argued that "self-directed" furloughs of correctional officers violated the Fair Labors Standards Act. The case applied only to members of Bargaining Unit 6.

CCPOA said that cutting employee pay but deferring the furlough time off violates the law because employees aren't paid in full for hours worked within a given pay cycle, that time worked on an unpaid furlough day should be calculated in figuring overtime and that the state hasn't kept adequate payroll records.

In essence, the judge ruled that the plaintiffs didn't make the case to support their claims or misinterpreted the policy as forcing employees to work for free. "The furlough program, while perhaps convoluted in execution, ensures that plaintiffs are compensated for all hours worked during the pay period," Walker wrote. "Because plaintiffs are compensated for all hours worked, and because that compensation exceeds federal minimum standards, plaintiffs claim of violation of FSLA fails."

And federal law, Walker said, authorizes only the secretary of labor to sue for recordkeeping violations, so "plaintiffs here lack standing to raise a separate claim relating to alleged recordkeeping violations."

Click here for a previous post with more details and documents about the lawsuit. We've embedded Walker's decision above.

Attorneys representing the state and the California's prison officers' union argued the legality of furloughs in San Francisco's U.S. District Court this morning. The court didn't issue a ruling and might not for several weeks.

The California Correctional Peace Officers Association filed the class action lawsuit, Newton v. Schwarzenegger, contending that its members' furloughs -- which deduct pay now but defer the corresponding time off -- violate the Fair Labor Standards Act. Click here for more background and court briefs.

Meanwhile, The State Worker has heard from several sources that the Department of Personnel Administration is scheduling or has already engaged in informal labor contract talks with the six bargaining units still without agreements. DPA Director Ron Yank also has been meeting and greeting leaders of the other bargaining units.

Yank's goal: Get contracts negotiated with all six units by the end of February/beginning of March.

PHOTO: Ron Yank, 2007 / Courtesy Carroll Burdick & McDonough LLP

Newton v. Schwarzenegger is set for hearing in San Francisco's U.S. District Court today at 10 a.m.

The class-action case, which applies only to members of the California Correctional Peace Officers Association, is challenging furloughs as a violation of the Fair Labor Standards Act. The arguments in this December 2009 complaint include:

• Cutting pay but deferring the furlough time off violates the law because employees aren't paid in full for hours worked within a given pay cycle.
• Time worked on an unpaid furlough day should be calculated in figuring overtime.
• The state hasn't kept adequate payroll records.

The state says in its last brief that CCPOA doesn't have standing to file suit, that there's no material fact establishing that employees haven't been compensated for all hours worked and that the assigning the eventual time off is a form of compensation under federal law.

There's a slew of documents in the case. CCPOA has posted a few on its website, but the rest are only available online through the court's electronic document system, and you have to register and then pay document fees.

Or you can look at the last two briefs that lay out each side's arguments via The State Worker's Scribd embeds:

We noticed that Gov. Jerry Brown didn't utter the F-word -- "furloughs" -- during his 45-minute budget press conference today.

So we asked the Department of Personnel Administration whether there were any changes to announce. Are furloughs still on, just as they were under Gov. Arnold Schwarzenegger?

"We haven't been given any direction to the contrary," DPA spokeswoman Lynelle Jolleysaid this afternoon in an e-mail.

Click here for a December State Worker column that discusses of why Brown won't end furloughs for unions without contracts.

Now-former Gov. Arnold Schwarzenegger posted a Twitter video this morning of his last moment in office -- literally. The 10-second post shows him shutting off the lights, cigar in mouth, with what appears to be the state seal under his arm. A cinematic end to the actor-turned-governor's seven years in office.

Click here to open the video on Twitter.

PHOTO: Screen capture, Twitter.com

The 1st District Court of Appeal has lifted an decision that stopped union challenges to Gov. Arnold Schwarzenegger's last furlough order, referring the matter to Alameda Superior Court for more litigation as that court "may deem appropriate."

The matter landed in the appellate court after Judge Steven. A. Brick's Aug. 8 ruling that Schwarzenegger couldn't relaunch three-days-per-month furloughs for roughly 144,000 state workers because the order violated state laws.

The governor quickly asked the appellate court to put a hold on the lower court's decision and allow furloughs to proceed. The appellate court denied that request, but the California Supreme Court, which by then was knee deep in furlough litigation, took the case and then allowed furloughs to resume.

On Oct. 4 the high court ruled that Schwarzenegger's 2009 furloughs were illegal but that the Legislature tacitly approved them in subsequent budget legislation. It didn't rule on the latest furlough case, however, and in November returned the matter to the 1st District Court of Appeal.

Now the appellate court has passed the case -- which is actually a consolidation of lawsuits by Professional Engineers in California Government, SEIU Local 1000 and six other employee groups -- back down to the Alameda court. (Click here for a list of all the parties involved.)

It's not clear whether either side should take heart from the appellate court's action, but you can be certain that there's more litigation ahead.

Just don't count on SEIU Local 1000 to be part of the proceedings. Its new contract accepted the last round of furloughs from August through October.

Here's the appellate court's instructions to the trial court:

In light of (1) the California Supreme Court's decision in Professional Engineers in California Government v. Schwarzenegger (S183411, October 4, 2010), (2) the enactment of the Budget Act of 2010, (3) the motion filed by plaintiffs in the California Supreme Court on October 26, 2010, and (4) any other potentially relevant development, the temporary restraining order that is the subject of the appeal in this action is vacated and the matter is remanded to the superior court for such further proceedings as the superior court may deem appropriate in light of these intervening developments.

Click here to read the appellate court docket, which shows the up-and-down history of the case.

The Schwarzenegger administration has filed its last reply in UAPD v. Schwarzenegger, which is before San Francisco's 1st District Court of Appeal.

Gov. Arnold Schwarzenegger hopes the justices will invalidate Alameda Superior Court Judge Frank Roesch's ruling that Schwarzenegger illegally furloughed employees in so-called "special fund" departments.

Administration attorney David Tyra's filing repeats an argument that he has made in this and similar cases, namely that the California Supreme Court's PECG v. Schwarzenegger ruling covers the issues raised in the UAPD case.

Since neither the high court decision nor legislation parsed special fund department furloughs and general fund department furloughs, Tyra contends, the Supreme Court's ruling and the Legislature's actions were a de facto approval of (mostly) across-the-board furloughs.

UAPD has argued that the Supreme Court's PECG ruling only settled the question of who has the authority to furlough (the Legislature does), but didn't address the process of furlough. The union wants the appellate court to uphold the Roesch decision.

Click here for an earlier post with a link to UAPD's brief. This link opens the appellate court's docket. We've posted the administration's Dec. 14 filing below. The court has not set a date for hearing this case.

UAPD v. Schwarzenegger Appellants' Supplemental Reply Brief

This is the next in a series of posts looking back at the most-read State Worker blog posts and columns.

Gov. Arnold Schwarzenegger usually let surrogates handle the dirty work of talking about furloughs, but on a few occasions he addressed the controversial policy himself.

But at an Aug. 3 appearance before the Central California Hispanic Chamber of Commerce in Fresno, someone (probably a state worker) asked the governor, "Why did the state workers have to bear the brunt of fiscal mismanagement? When do we get our money back? When will the furloughs end?"

Schwarzenegger cut loose with a lengthy extemporaneous statement about furloughs that included his assertion that state workers "don't take on an extra burden," especially compared with private-sector employees who have lost their jobs.

Our post that afternoon included a transcript and audio clip of what Schwarzenegger said. It quickly drew hundreds of comments. Click here to read Schwarzenegger: "We're not taking anything away from any state employee."

Editor's note, 2 p.m.: We have added a Scribd version of the Dec. 7 CASE court filing to the end of this post.

California Attorneys, Administrative Law Judges and Hearing Officers in State Employment filed a letter brief last week with San Francisco's 1st District Court of Appeal.The union's aim: convince the justices to return a so-called "special funds" case to the trial court with "directions to reconsider its ruling in light of the (California) Supreme Court's decision."

CASE attorney Patrick Whalen's 13-page letter is a response to a Nov. 22 brief filed by the Schwarzenegger administration that argues for killing the case.

Whalen contends that the high court's ruling in PECG v. Schwarzenegger, which said the state Legislature tacitly approved furloughs by assuming payroll savings from the policy in its budget actions, left open many questions that need to be hashed out in the lower court.

CASE makes these arguments:

Editor's note, 1:05 p.m.: This post now includes a link to Schwarzenegger's Nov. 29 brief filed with the 1st District Court of Appeal.

An attorney representing Gov. Arnold Schwarzenegger argued in a letter Tuesday to an appellate court that State Compensation Fund employees were legally furloughed last year.

David Tyra, the governor's hired legal gun to handle the multitude of litigation sparked by furloughs, contends that a lower court's ruling in CASE v. Schwarzenegger doesn't hold up in light of an October decision by the California Supreme Court.

The lawyers for California Attorneys, Administrative Law Judges and Hearing Officers in State Employment have until Dec. 23 to file a rebuttal.

The matter has traveled up and down the court system. You have to understand its history to understand Tyra's argument.

Lots of ground to cover here: three unions, three lawsuits, four court filings and plenty of links to prior State Worker posts for background. Hang on.

CCPOA v. Schwarzenegger
The Schwarzenegger administration filed this brief on Tuesday in response to CCPOA's Nov. 19 filing to San Francisco's 1st District Court of Appeal. Gov. Arnold Schwarzenegger and the prison officers' union are battling over an Alameda judge's decision that "self-directed" furloughs are illegal.

The big question with this furlough case and the other two we'll mention is this: Given the California Supreme Court's October furlough decision that the Legislature tacitly approved furloughs through budget legislation, is the lower court litigation still worth considering?

Click here and then here for more background on CCPOA v. Schwarzenegger. Both posts have plenty of history and links to earlier key court documents.

There's no oral argument date set for this case.

Editor's update, 8 p.m.: This post now includes a Scribd download of the CCPOA brief filed with the 1st District Court of Appeal.

The California Correctional Peace Officers Association filed a 42-page brief on Friday, arguing that the California Supreme Court's furlough ruling last month didn't wipe out an Alameda judge's earlier ruling that "self-directed" furloughs are illegal.

"The governor says that the (Supreme Court's) ruling is a big blanket that you can throw over all furloughs," said Gregg Adam, one of the attorneys with San Francisco law firm Carroll, Burdick & McDonough, which represents CCPOA. "Obviously, we disagree."

Self-directed furloughs deduct an employee's pay at the furlough rate of roughly 15 percent per month, but the time off is deferred. The 32,000 or so correctional officers represented by CCPOA continue to work under self-directed furloughs. They're among the roughly 63,000 state workers represented by unions without current labor pacts.

Alameda Superior Court Judge Frank Roesch ruled that self-directed furloughs are illegal. Schwarzenegger appealed the ruling to San Francisco's 1st District Court, where it was on hold until the state Supreme Court ruled on furloughs last month.

The appellate court then asked the governor and the prison officers' union to update their arguments in light of the high court's decision. Schwarzenegger opened with a Nov. 9 filing (click here to read more about it).

CCPOA's response includes these arguments:

SEIU Local 1000 filed a supplemental brief in San Francisco's 1st District Court of Appeal last Friday. It's a response to Gov. Arnold Schwarzenegger's Nov. 8 filing that argues the California Supreme Court's furlough decision knocked out an Alameda judge's ruling that forcing unpaid days off on so-called "special fund" departments is illegal.

Local 1000 attorney Felix De La Torre's 19-page letter brief makes several arguments:

The board of California Attorneys, Administrative Law Judges and Hearing Officers in State Employment painted a bleak labor picture in an e-mail sent to its 3,700 or so members last week.

It also updated the status of key furlough litigation involving constitutional department employees, the union's State Compensation Insurance Fund members and so-called "special fund" departments. The punchline for all of that litigation: The implications from last month's state Supreme Court furlough decision are still rippling through the court system, and its impact isn't yet clear.

Regarding contract talks, CASE told members that it's highly unlikely that a deal can be done with Gov. Arnold Schwarzenegger. Even if it happened, the Legislature's schedule and the ratification process would delay any new terms taking effect for several months.

Then there's this grim analysis:

A state appeals court should reverse a lower court's ruling that state workers in "special fund" departments were illegally furloughed, an attorney for Gov. Arnold Schwarzenegger argues in documents filed this week in San Francisco.

Attorney David Tyra contends in two mirror-image briefs submitted to the 1st District Court of Appeal that last month's furlough decision by the California Supreme Court "fully disposes of the issues" raised in SEIU Local 1000 v. Schwarzenegger et al. and UAPD v. Schwarzenegger et al..

Nearly a year ago, Alameda Superior Court Judge Frank Roesch ruled in both cases that furloughing employees in departments funded entirely or in part with money outside the general fund was an "arbitrary, capricious and unlawful" act. He then ordered those workers returned to full hours and pay. Schwarzenegger immediately appealed, which kept furloughs in place.

Then the state Supreme Court ruled on Oct. 4 that the Legislature had tacitly approved Schwarzenegger's furloughs, which made the policy legal. On Oct. 7, the 1st District Court issued a letter to both state and union attorneys about the SEIU and UAPD cases:

Dear Counsel: As you are undoubtedly aware, on October 4 the Supreme Court filed its opinion in Professional Engineers in California Government v. Schwarzenegger, S183411. Should you conclude that the opinion does not resolve all issues in this appeal, the Court has directed me to inform you that additional briefing addressing the impact of the Supreme Court's decision may be submitted according to the following schedule. Appellants may file an initial supplemental brief no later than November 8, 2010. Respondent may file its brief on or before November 19, 2010. Appellants may file a reply brief no later than November 30, 2010.

That same day, the appellate court set a briefing schedule for California Correctional Peace Officers Association v. Schwarzenegger, another Roesch furlough ruling appealed by the governor. Click here for our recent post about that appeal.

The 1st District Court hasn't yet set a date for oral arguments in any of the cases.

What follows is Tyra's 10-page SEIU brief , which essentially says that applying the guidelines set down by the Supreme Court's ruling undercuts the Roesch decisions. (This link opens a virtually identical Tyra brief addressing the UAPD case.)

Plaintiff's brief in SEIU Local 1000 v.Schwarzenegger

An attorney for Gov. Arnold Schwarzenegger said that the California Supreme Court's Oct. 4 furlough decision has invalidated a lower court's furlough lawsuit ruling in favor of the California Correctional Peace Officers Association.

David Tyra, the administration's lead furlough lawsuit lawyer, argued in papers filed on Monday that the high court's decision settles all of the issues raised in CCPOA v. Schwarzenegger, et al..

CCPOA successfully argued to Alameda Superior Court Judge Frank Roesch that "self-directed" furloughs of prison staff and other state workers at 24/7 facilities violated labor law that stipulates compensation must be paid within a given pay cycle. The union maintained the policy is illegal because workers under self-directed furloughs may lose their pay but not take the time off for weeks, months or years.

The law also requires payment rendered in cash, but unredeemed furlough time after June 2012 would have no value, and that was illegal too, CCPOA said. After losing the case and appealing Roesch's ruling to San Francisco's 1st District Court, the administration extended the furlough redemption time indefinitely. It also said that furloughs violated provisions of the Labor Code.

Three days after the state Supreme Court issued its decision that the Legislature tacitly approved Schwarzenegger's furloughs through language tucked into a February 2009 budget bill, the 1st District Court asked the administration and CCPOA to submit arguments on how the Supreme Court's ruling impacted CCPOA v. Schwarzenegger.

Tyra filed his 15-page letter on Monday. His argument, in sum: The Supreme Court said that the Legislature OK'd the governor's furloughs as they existed, making all of CCPOA's arguments moot. The Labor Code argument doesn't hold up, either, because that law doesn't apply to state employers and employees.

The union has until Nov. 19 to respond. The governor may file a reply brief no later than Nov. 30. The court hasn't set a date for oral arguments.

Click here to read the Tyra brief. He also filed a brief in the 1st District Court for Service Employees International Union Local 1000 et al. v. Schwarzenegger et al., which concerns the legality of furloughing "special fund" department employees. We'll have that posted this afternoon, so check back.

The California Supreme Court's decision in Professional Engineers in California Government v. Schwarzenegger is now final.

A month ago, the court unanimously ruled that Gov. Arnold Schwarzenegger didn't have authority to force state workers to take time off without pay. But, the court said, the Legislature does have that power and tacitly conferred it on Schwarzenegger with budgets that approved the policy.

Since the ruling didn't take effect until now, the administration continued furloughs. The Legislature then approved a 2010-11 budget explicitly and retroactively deputizing the governor to furlough employees whose unions don't have contracts.

Click here to see the court's notice of remittitur on the docket, which signals the official close of the case.

IMAGE: www.yolocourts.ca.gov

In a recent message to department staff, Caltrans Director Cindy McKim praises them for cranking out their work despite furloughs and staffing cuts. The comments appeared in a "Director's Corner" piece for the October edition of Caltrans News. Here's the top of the column:

In 2009-10, Caltrans once again posted impressive achievements toward our goal of improving mobility across California. We delivered 99.3 percent of projects included in our contracts for delivery, obligated all available federal dollars, paved 3,936 miles of highway, and authorized 1,664 state and local construction projects for available federal funds. All of these achievements are remarkable. But with the fact that we did this in the face of furloughs, understaffing, and operating expense reductions, the achievement is elevated from remarkable to extraordinary!

Click here to read the rest.

The Caltrans employee who flagged the item for The State Worker sent it with this comment: "Please look at this. We are working our butts off and no one seems to know. I appreciate the message from our Director, but she's preaching to the choir."

McKim's message and the e-mailer's insight prompted us to think about "attaboys" from management. We want to know what you think. Take our poll:

PHOTO: Cindy McKim / www.dot.ca.gov

Caltrans has issued a correction to Thursday's memo that had indicated employees represented by SEIU Local 1000 would be subject to furlough until union members ratify a new contract.

"The Department of Administration (DPA) has indicated that for employees in bargaining units with a new contract or one in the works (applicable to Caltrans include (sic) BUs 1,4, 11, 12, 14, 15, and 21) and excluded employees, furloughs are over," wrote Caltrans Deputy Director Cris Rojas, in this e-mail sent to employees just after noon today. "We very much regret the confusion over this issue."

Rojas' e-mail corrects one sent by Caltrans Chief Deputy Director Malcolm Dougherty that had said workers covered by Local 1000 could be furloughed until the union ratifies its new labor deal with the Schwarzenegger administration. The deadline for submitting ballots is Nov. 8 with a tally likely announced that evening or the next day.

After the Dougherty e-mail hit, confused department employees fired off angry e-mails to The State Workers, upset that Caltrans was contradicting what the union and the Department of Personnel Administration had said: October is the last furlough month for the 95,000 employees the local represents. Click here for what we reported about the mixup.

Caltrans employees in bargaining units without contracts are still subject to furloughs, Rojas' e-mail says.

Worth noting: If voting members reject the deal, the Schwarzenegger administration would have plenty of time to direct departments to continue furloughs for employees represented by the local, since the cutoff date for payroll changes is Nov. 18.

A "no" vote by the majority of SEIU members who cast ballots also would mean the union and the (Schwarzenegger? Brown? Whitman?) administration would have to return to the bargaining table.

Confusion reigns.

From the top of Caltrans down to rank-and-file employees, there appears to be some disagreement about the state's furlough policy next month and thereafter, particularly the status of workers represented by SEIU Local 1000.

Here's the deal, which we'll explain in more detail in a moment:

If your bargaining unit has a current contract or is in the midst of a ratification vote on a new contract, three-days-per-month furloughs are over for you. If you're a manager, supervisor or other non-union employee, you're off the three-day furlough plan, too.

Now, about that confusion.

We've been asking constitutional officers for reaction to new furlough instructions from the Department of Personnel Administration, acting on budget bills that allow the administration to furlough state workers.

The instructions, part of a set of Personal Management Liaison memos issued late Thursday afternoon, say that rank-and-file state employees in unions without contracts will continue furloughs of three days per month in November. That includes folks working for the lieutenant governor, the secretary of state, the treasurer, the attorney general, the controller, the superintendent of public instruction and the insurance commissioner.

(The Board of Equalization also is a constitutional agency, but it's among the eight departments and agencies whose employees are exempt from furloughs regardless of contract status.)

Space constraints limit our State Worker column on Thursdays to roughly 425 words, so much of what we learn in the ramp-up to writing never sees print. Column Extras give State Worker blog users more information -- the notes, the quotes and the documents that inform the weekly feature.

Our column in today's fiber/cyber Bee looks at one small sliver of state government, the Department of Social Services, and how a well-intentioned Monday e-mail from Director John Wagner illustrates confusion, even at the highest levels, over how the 2010-11 budget and state employee furloughs.

Click here to read Wagner's Monday memo to the troops. Here's the text of the e-mail issued on Wednesday to reel in the incorrect info.

Two unions have responded to the news we broke in this blog post Tuesday that Gov. Arnold Schwarzenegger plans to extend three-day-per-month furloughs for state workers in bargaining units without contracts. Furloughs for those employees will start in November and run through June 30, 2011.

The California Association of Professional Scientists sent this memo to its 2,700 or so members this morning.

The key paragraph:

Two union sources have told The State Worker that, as we reported earlier today, the Schwarzenegger administration has told labor leaders that furloughs will continue for bargaining units without contracts through June 30, 2011.

The administration informed the unions this afternoon. It doesn't know yet whether the policy will be formalized via executive order or some other means, one union source told us, and it's not clear when the formal announcement will be made.

The 2010-11 budget contains language that allows the governor to use "reductions in employee compensation achieved through the collective bargaining process or through existing administrative actions for represented employees and a proportionate reduction for nonrepresented employees (utilizing existing authority of the administration to adjust compensation for nonrepresented employees) in the total amounts of $896,000,000 from General Fund items and $661,000,000 from items relating to other funds."

The words, "existing administrative actions," is legislative code for furloughs for unionized workers in BUs that don't have a contract.

As the dust settles from last week's Supreme Court furlough decision, the SEIU Local 1000 tentative agreement and the 2010-11 budget legislation, the impact of the interwoven events is becoming more clear.

In this post we'll share some answers to questions about what this means to state workers whose unions don't have a contract.

Several dozen blog users have sent the following questions our way, in one form or another, about the SEIU Local 1000 tentative agreement:

Will the terms of the SEIU agreement affect all of its members? Including its members at the agencies that have never been affected by furloughs? (Mainly constitutional agencies.)

The SEIU tentative agreements affect everyone in each bargaining unit, regardless of where they work. If voting members ratify the deal, it's "Hello, 12 unpaid days off," for employees working under constitutional officers, at State Compensation Insurance Fund and other currently furlough-free departments, just like everyone else.

Our guess -- and this is just a guess -- is that it's unlikely that workers covered by the TA and who work in constitutional agencies and departments will have to take any make-up furlough time. Why? Because the governor used his line-item veto power to cut the constitutionals' budget by amounts equal to the payroll savings from furloughs. Reaching back to impose furlough makeups -- or imposing them now -- would be a sort of budgetary double-jeopardy.

However, we've asked the Department of Personnel Administration its position. We'll let you know what they say.

If the contract is effective July 1, 2010 then how will we make up the 3 percent increase in our pension payments for July, August, September, October, and November? Will they pro rate the increases for those months over a period of time?

The increased pension payments start the pay period after the deal is ratified. The rate won't be prorated to make up for lower contributions at the start of the 2010-11 fiscal year.

Thursday's news rush (the new SEIU labor deal, the governor's latest executive order, the 800-page budget bill , an avalanche of e-mails and phone calls and our responsibility to blog and write this story for today's Bee) has given way to a slightly less frenetic "Furlough Friday" (so far at least).

So let's take a few minutes to tackle some of the most common questions sent our way about the budget bill and the SEIU contract:

* As we noted in our web chat this morning, the Schwarzenegger administration hasn't called off the "Furlough Friday" scheduled for this week, despite Monday's ruling by the California Supreme Court that furloughs have to be approved by the Legislature.

Here's what an e-mail from Gov. Arnold Schwarzenegger's spokesman Aaron McLear said: "The (Supreme Court's) order does not go into effect for 30 days so it does not affect Friday's (scheduled) furlough day."

That could change, however. Lawmakers could pass a budget between now and Friday that doesn't include anticipated savings from an Oct. 8 furlough day.

* Or it might. According to this report in today's Bee by Capitol Bureau colleague Kevin Yamamura, the budget deal under consideration includes roughly $900 million in cuts to employee compensation.

We've also heard, contrary to what we said during today's chat, that Schwarzenegger is prepared to sign a new budget within a day of the Legislature passing it. (It usually takes about a week for a bill to reach the governor's desk after passage.) If the Legislature passes a budget Thursday as currently planned, the governor could sign it Friday.

* Several chat users asked whether Columbus Day -- which is observed on Oct. 11 this year -- is a paid day off for state workers, given the recent ruling in Sacramento Superior Court that forcing employees in some bargaining units to work that day and Lincoln's Birthday violated their contracts.

As we noted during the chat, next Monday is a regular workday because the court's order doesn't take effect for 60 days. The administration could have decided to recognize the holiday, union attorney Gerald James told The State Worker, but it didn't. The Department of Personnel Administration addresses the issue on its website, which you can access by clicking here.

The State Worker blog is hosting an hour-long chat this morning to discuss the California Supreme Court's Monday morning furlough ruling. You can join the live session here from 11 a.m. to noon. If you miss the session you can replay it later, since we'll archive it here.

Before that, at 10 a.m., we'll spend a few minutes with Jeffrey Callison on Capitol Public Radio's "Insight" on KXJZ (90.9 FM). Click here for the show's page with a link to the streamed webcast.

We don't know yet what the California Supreme Court will say about furloughs this morning, but we do have a sense of how the court reached its decision.

Here's a quick sketch of how the court writes its rulings:

Next week, The State Worker blog will host an hour-long chat about the California Supreme Court's much-anticipated Monday morning furlough ruling. You can plug into the live session right here on Tuesday from 11 a.m. to noon. We'll take questions and ask some of our own during what is sure to be a lively 60 minutes.

(Yes, we know it's not an ideal time, but we'll be tied up Monday with the court news. Another chat has been scheduled for the noon hour on Tuesday. We figured Wednesday was too late. So we picked the least-bad time for our event.)

If you can't join the conversation live, you can replay it later on this blog, since The Bee archives chats.

IMAGE: sacbee.com/live

As reported this morning, the California Supreme Court will issue its decision in
Professional Engineers in California Government, et al. v. Schwarzenegger, et al. on Monday morning. We suspect it's going to be an anxious weekend for many state workers affected by the court's ruling.

Here's a two-part poll about the upcoming ruling. Tell us what you think:

The California Supreme Court has just announced that it will publish its decision in the state worker furlough matter, Professional Engineers in California Government, et al. v. Schwarzenegger, et al. on Monday at 10 a.m. There's no tip in the announcement what the court has decided.

The ruling will affect more than 200,000 state employees forced to take unpaid days off by Gov. Arnold Schwarzenegger since February 2009. State workers absorbed 46 furlough days through June 30 of this year, cutting approximately $3 billion from state payroll costs. About half of that was general fund savings.

In August, after state budget talks deadlocked, Schwarzenegger restarted the "Furlough Friday" policy, which closes the government the second, third and fourth Fridays of the month until a 2010-11 budget deal is done.

SEIU Local 1000, which represents 95,000 state employees and unions for state attorneys and state engineers all sued the governor over the order nearly two years ago and lost in Sacramento Superior Court. The state Supreme Court last summer decided to take the three cases as one and ordered a quick schedule that culminated in a Sept. 8 hearing in San Francisco.

The court had 90 days after the hearing to render its decision, but legal experts figured a ruling would come much sooner, given the high-profile nature of the case and its potential impact on the state's budget.

There are roughly 40 furlough lawsuits in various lower courts around the state, but legal experts say Monday's ruling could settle them.

The state Supreme Court also took a fourth furlough case involving employees at the State Compensation Insurance Fund. It hasn't yet been scheduled for a hearing.

Click here to read the California Supreme Court's notice.

The California Supreme Court has just announced that it will publish its decision in the state worker furlough matter, Professional Engineers in California Government, et el. v. Schwarzenegger, et al. on Monday at 10 a.m. There's no tip in the announcement what the court has decided.

Click here to read the court's notice.

"From the notebook" posts give State Worker blog users insights, notes and quotes that went into news stories that we write.

We quoted Athena Roussos, an Elk Grove-based appellate attorney who has argued before the California Supreme Court, in this story about the California Supreme Court hearing in the PECG v. Schwarzenegger furlough case.

Roussos said plenty more about the hearing when we spoke on Wednesday afternoon. Here are some of her thoughts after viewing the oral arguments:

As we noted in Thursday's State Worker column, there may be some thorny legal issues about the remedy for more than 200,000 state workers if the California Supreme Court rules that Gov. Arnold Schwarzenegger illegally furloughed them.

That got us thinking about the State Compensation Insurance Fund's 7,900 employees. Two trial courts concluded that furloughing them violated state insurance code barring "staff cutbacks" (a unique law that applies only to State Fund employees) and ordered back pay with interest. We wondered in July 2009, "How do you compensate everyone for their furlough hours?"

The post raised simple questions of fairness. Turns out, according to Controller John Chiang's attorney, Robin Johansen, that there may be a "raft" of complex legal hurdles, too.

(Worth noting: Johansen's concern that paying state workers back wages for furloughs even though they didn't work might be a "gift of public funds" might not apply to State Fund, since it operates on money paid by policyholders, not tax revenues.)

So we called State Fund spokewoman Jennifer Vargen on Wednesday and asked how the fund settled the back pay question.

"That has not yet been resolved here at State Fund," Vargen said.

What?

"Many employees are aware that we may be asked to put in vacation hours, depending on how the furlough rulings go," Vargen said.

Employees who worked on their furlough days and received back pay plus 7 percent are fine. It's the employees who took the pay hit and the time off who may wind up paying back the court-ordered remedy, Vargen said.

While we're in San Francisco this morning to cover oral arguments at the California Supreme Court in the PECG v. Schwarzenegger furlough case, The Bee has arranged to stream the 9 a.m hearing live and provide users a chance to simultaneously interact with Bee columnist Dan Walters.

Clicking here opens the live coverage/chat page. This link explains the rules of the road for participants.

If you can't join the discussion live, you can view it later on the same site.

On a related note, The State Worker will host a chat on the same web page on Thursday. We'll start at noon and go for an hour. We hope you can join us.

Wednesday's California Supreme Court hearing is dead ahead, set for Wednesday morning at 9 a.m. and scheduled to run for 90 minutes. Here's a previous post with details about how you can watch the oral arguments in Professional Engineers in California Government v. Schwarzenegger on TV or the Internet.

It's been a long road to this key moment. Looking back at the 1,900 posts on this blog since it started a little over two years ago, references to the state Supreme Court taking and furloughs case go back to early 2009. We're talking about 60 items on The State Worker.

We'll be attending the hearing. Between now and then, we'll be looking through past stories and court filings leading up to the case and writing a bit for tomorrow's Bee. If you want to do the same, here are some links. Many of the blog posts link to court filings or other pertinent info:

The California Supreme Court has announced it will broadcast Wednesday's 9 a.m. oral arguments in Professional Engineers in California Government v. Schwarzenegger.

The California Channel will air events live on cable television and on its website, www.calchannel.com. We expect the hearing will run about 90 minutes.

The justices will hear debate over whether Gov. Arnold Schwarzenegger illegally furloughed state workers. The case has repercussions for roughly 40 furlough lawsuits in lower courts around the state.

The court will rule within 90 days, although legal experts we've interviewed expect a published decision much sooner. Click here to read more about what to expect during the state Supreme Court hearing and after it.

Hat tip to blog user M for flagging this.

State Worker blog users who missed the news will be interested in this report about a resolution that aimed to name a building after retiring state Supreme Court Chief Justice Ronald George. It failed, and its failure is tied to the union's furlough litigation that will be argued next week in George's court.

Hat tip to Torey Van Oot at our sister blog, Capitol Alert, for picking off the resolution's saga in the blizzard of legislation that lawmakers pushed through this week before the end of their session on Tuesday.

Attorneys representing Controller John Chiang and the Department of Personnel Administration met in Sacramento Superior Court on Thursday to debate several highly technical minimum wage issues. The two sides are moving toward a full hearing on whether the controller can refuse to comply with DPA's instruction to withhold state workers' pay to the federal minimum allowed during the budget impasse.

Nothing that Judge Patrick Marlette heard changed his mind. The tentative ruling he issued on Wednesday stands as the his final decision. It sets the framework for the legal issues that are in play as the two sides now fully engage in the minimum wage compliance debate.

Next up: Another status hearing on Sept. 23. Look for the governor's side to push for a quick hearing date, while Chiang's lawyers will likely argue for a later date so that they can have more time to prepare.

As we reported here, CalPERS and CalSTRS have filed a Petition for Writ of Mandate to the state Supreme Court, seeking to block Gov. Arnold Schwarzenegger's July 28 furlough order.

Click here to download the 126-page brief.

Let's catch up on lawsuit news.

Professional Engineers in California Government andCalifornia Association of Professional Scientists have filed a lawsuit in Sacramento to stop Gov. Arnold Schwarzenegger's latest furlough order. CalPERS and CalSTRS have jointly filed a Petition for Writ of Mandate with the state Supreme Court with the same aim. Here's an internal memo sent Monday to CalPERS employees from fund CEO Anne Stausboll that lays out the details:

Judge Patrick Marlette has published his tentative ruling on several legal criticisms of the Department of Personnel Administration's pay letter that ordered state worker pay withheld to the federal minimums allowed until lawmakers craft a budget.

It's a complicated document that assumes an understanding of the issues raised by State Controller John Chiang and the rebuttals offered by DPA. To sum up, DPA wins some arguments and some issues were left open to more litigation, which keeps alive some of Chiang's objections to the order.

Example: Chiang said that state workers' pay should be withheld at the California minimum wage rate instead of the federal minimum ordered by DPA. Marlette sided with DPA.

Example: Chiang contended that executing the minimum wage order would lead to Fair Labor Standards Act violations. Marlette left that question open to more litigation.

The two sides will meet in court Thursday at 1:30 p.m. to argue points and set deadlines for filing more papers. Marlette could also also set a hearing date to debate whether Chiang's office has the capacity to execute the minimum wage order. None of the items addressed in Marlette's tentative ruling today will keep the court from considering that issue.

Want to get deeply into today's ruling? Here's how:

Click here to open Chiang's cross-complaint.
Click here to open DPA's rebuttal.
Click here to open Marlette's tentative ruling. You'll need to cross reference the first two documents to understand the judge's decisions.

In the interest of this blog's function as a forum, The State Worker occasionally publishes e-mails from blog users. Here's one from Caltrans supervisor Bob Dougherty that we're posting unedited and with his permission.

The e-mail, which touches on a number of subjects, including Gov. Arnold Schwarzenegger's newest furlough policy, represents Dougherty's personal opinion, not that of his employer or colleagues.

Well, it's the first "Furlough Friday" under Gov. Arnold Schwarzenegger's latest executive order, the first of three days this month that approximately 144,000 state workers will take off without pay.

Obviously, state hospitals, state prisons and other essential 24/7 facilities are open. The DMV is closed, but the Employment Development Department is open to take unemployment claims.

The governor's July 28 order exempts several departments and entire groups of employees. Staff working for statewide officials such as Attorney General Jerry Brown and Controller John Chiang are continuing to work for full pay, too, since none of the constitutional officers is complying with Schwarzenegger's furlough mandate.

Others are working, such as state correctional officers, but will still have their pay reduced with the understanding that at some point they'll take the commensurate time off. Many managers and supervisors have the same arrangement.

All told, about 91,000 of the 235,000 employees normally considered under gubernatorial authority are not under furlough.

Here's a list of offices open on Furlough Fridays, which will continue on the second, third and fourth Fridays of each month until lawmakers pass a budget:

• Governor's Office
• Attorney General's Office (Department of Justice)
• Secretary of State's Office
• State Controller's Office
• State Treasurer's Office
• Franchise Tax Board
• Board of Equalization
• Department of Education
• Employment Development Department
• State Compensation Insurance Fund
• California Housing Finance Authority
• California Earthquake Authority
• California African American Museum
• California Science Center
• Military Department offices
• State parks
• Fish and Game hatcheries and wildlife areas
• Vista Del Lago Visitor's Center at Pyramid Lake
• Romero Visitor's Center at San Luis Reservoir
• Field offices of the Horse Racing Board
• Parole Offices

And these offices are available by phone only:

• Genetic Disease Screening Program
• WIC Vendor Hotline
• Emergency Preparedness Office
• 24hr Duty Officer

The Department of Personnel Administration has retained a second law firm to handle furlough litigation.

Hanson Bridgett has a contract capped at $500,000. That's in addition to the $1.75 million contract the administration has with Sacramento-based Kronick, Moskovitz, Tiedemann & Girard of Sacramento.

DPA tells us that Hanson Bridgett, which has offices in San Francisco, was brought in due to the proliferation of furlough litigation in Bay Area courts.

We've asked DPA for a copy of the Hanson contract. The funds to pay Kronick and Hanson come out of the general fund, so the governor's outside furlough lawsuit representation won't be paid for services rendered after June 30 until a 2010-11 budget is in place.

7:11 p.m. editor's note: An earlier version of this post contained contact information that has since been removed.

The Department of Personnel Administration has just issued this furlough policy memo:

From: Elaine Smith On Behalf Of Debbie Endsley
Sent: Wednesday, August 18, 2010 3:57 PM
To: LIST-AgencySec-Cabinet; LIST-UnderSecretaries; LIST-ConstitutionalOfficers; LIST-Directors
Subject: Furlough Update

In light of today's California Supreme Court ruling, furloughs will continue.

For all State agencies and departments subject to the furlough and closure, furloughs will continue as planned Friday the 20th and 27th. One additional floating furlough will be self-directed and must be used within the August pay period.

For departments that are not closed, all necessary steps must be made to ensure that employees take their three furlough days off within the pay period.

The provisions of the new furlough program outlined in PML 2010-015 still apply.

As we reported earlier, the state Supreme Court has stayed a temporary restraining order that kept Gov. Arnold Schwarzenegger from furloughing state workers last week as he had planned. Here's a statement from his spokesman, Aaron McLear that lays out the state's furlough plans:

The result of the CA Supreme Court ruling today means that the furloughs will continue until the court says otherwise. The court has on its own motion taken up the three original furlough cases from the court of appeal to decide this issue more expeditiously. They are set to hear oral arguments September 8 on the question of whether or not a Governor has the authority to implement furloughs. In the meantime, furloughs will continue as planned Friday the 20th, the 27th, and one additional floating furlough between now and the end of the month.

Furloughs for state workers are back on for Friday. The state Supreme Court has just said that it will review a lower court ruling that kept Gov. Arnold Schwarzenegger from furloughing roughly 144,000 employees last week as he had planned.

Schwarzenegger had asked for the review after losing decisions in both Alameda County Superior Court and San Francisco's 1st District Court of Appeal.

Here's what the court's website says:

The petition for review is GRANTED. Because the issue whether the Governor has the authority to direct the unpaid furlough of state employees is pending before this court and is scheduled for oral argument on Wednesday, September 8, 2010, in the related case of Professional Engineers in California Government et al. v. Arnold Schwarzenegger et. al., S183411, and without expressing any view on the merits of that issue, we conclude that it is appropriate to grant review in this matter and defer further action pending our resolution of the currently pending proceeding. Pending further order of this court, further proceedings in the Alameda County Superior Court in case number RG10494800 (and in consolidated cases numbered RG10507922, RG10507081, RGI0503805, RGI0501997, RGI0516259, RGI0514694, and RG10528855), as well as the temporary restraining order of the Alameda County Superior Court issued on August 9, 2010, are stayed. Votes: George, C.J., Kennard, Baxter, Chin, Moreno, and Corrigan, JJ.

Now we wait.

Attorneys representing Gov. Arnold Schwarzenegger met a 9 a.m. deadline today to file the final brief in litigation that could determine whether furloughs resume this week for roughly 144,000 state employees.

The governor's side filed this response to yesterday's arguments by state employee unions that lower court decisions that have stalled Schwarzenegger's July 28 furlough mandate shouldn't be reviewed by the High Court.

Schwarzenegger is arguing that the Supremes should consider the matter because, he contends, Alameda Superior Court Judge Steven A. Brick erred by granting a temporary restraining order that kept Schwarzenegger from resuming furloughs last Friday. The governor says that the First District Court of Appeal compounded that error by denying his appeal to lift the restraining order while the lower court case moves forward.

With this morning's filing, the Supreme Court has all the documentation that it requested. If it renders a quick decision in the governor's favor, "Furlough Fridays" could return this week. A ruling against the governor would stop furloughs until at least next month when more court action is scheduled. A new budget deal or tentative agreements with individual unions between now and then also could affect state employees' work schedules.

Attorneys for eight state employee organizations have filed a response to Gov. Arnold Schwarzenegger's request that the state Supreme Court allow him to furlough state workers while it reviews an appellate court decision that kept him from restarting the policy last Friday.

The employee groups' answer, a 26-page letter hand-delivered to the court's San Francisco offices, argues a review isn't warranted.

Schwarzenegger's attorneys last week asked the First District Court of Appeal for permission to restart furloughs, despite a trial court decision that stopped the policy pending a full hearing on Sept. 13. The appellate court denied the request.

The governor took up the matter with the state Supreme Court last week, calling the policy "one of the aggressive cash management measures" needed to "preserve vital cash assets." The appellate court got it wrong, his lawyers contended, and they also attacked the trial court's ruling:

Gov. Arnold Schwarzenegger formally asked the state's highest court today to clear the way for worker furloughs.

Schwarzenegger, after an appellate court ruled against him Thursday, filed an appeal with the Supreme Court that seeks to lift a temporary restraining order barring him from imposing furloughs.

If the High Court agrees with the governor and acts quickly, more than 144,000 state workers could be forced to take three Fridays off per month without pay -- beginning next week and extending at least until further court proceedings next month, unless a new state budget is passed before then.

Schwarzenegger ordered the furloughs July 28, but a lawsuit by employee unions prompted Alameda Superior Court Judge Steven A. Brick on Monday to block imposition of furloughs until a scheduled court hearing Sept. 13 at which both sides are expected to make extensive arguments.

Contending that even a one-month delay in launching furloughs would cost the state millions in lost savings, Schwarzenegger challenged Brick's ruling, appealing unsuccessfully to the 1st District Court of Appeal which in a two-sentence announcement Thursday sustained the temporary restraining order but did not say why.

Brick had concluded that "serious questions" have been raised about the legality of furloughs and that permitting them before the Sept. 13 court hearing could cause irreparable harm to workers struggling to pay mortgages and care for their families.

Schwarzenegger countered that blocking furloughs would harm the state's ability to function in a time of $19 billion deficit and a deadlock within the Legislature on passing a new budget.

The governor accused the lower court of interfering with his executive authority, and he argued that money saved by imposing furloughs - more than $75 million per month in general fund savings - is critical to retaining key health and safety programs during the budget crisis.

Irreparable harm to the state from blocking such cost-cutting "exceeds any harm that state employees will suffer from temporary furloughs," Schwarzenegger said in his appeal to the Supreme Court.

Updated at 2:05 with reaction from both sides

A San Francisco appellate court let stand Thursday a judge's order blocking furloughs for more than 144,000 state workers.

The decision by the First District Court of Appeal means that workers will not be furloughed -- at least temporarily.

Gov. Arnold Schwarzenegger, through his Department of Administration, vowed to appeal to the California Supreme Court.

Aaron McLear, Schwarzenegger's spokesman, said that today's appellate ruling temporarily blocks one form of cost-cutting but does nothing to relieve the state's dire need to act quickly in meeting a $19 billion deficit.

"The furloughs are a direct result of the Legislature's failure to pass a budget, which is causing the state to run out of cash and face IOUs this month," McLear said.

"Whether through more furloughs, pay cuts, or layoffs we will realize the intended savings to state employee compensation and cut back just as every California family and business is doing," McLear said.

The issue before the appellate court was whether to lift a temporary restraining order issued Monday by Alameda Superior Court Steven A. Brick, who had barred the state from imposing furloughs until a Sept. 13 court hearing at which both sides will press their case.

Put simply, the effect of today's appellate ruling is to prevent the state from imposing four planned furlough days over the next month -- until the Sept. 13 hearing at which Brick will consider issuing a more permanent injunction.

If the California Supreme Court steps in quickly -- McLear said the governor's appeal will be filed Friday -- the possibility exists that furloughs could be imposed for the final two Fridays of August, and one next month, before the Sept. 13 showdown in Brick's Alameda County courtroom.

To compensate for the loss of payroll savings this week, employees would be asked to take an additional, self-directed furlough day in August if the High Court gives the green light, according to McLear. If furloughs are blocked throughout August, additional furlough days may be imposed in months to come.

J. Felix De La Torre, an attorney for Service Employees International Union Local 1000, said Thursday's appellate ruling, though not a final resolution, takes a big load off the minds of workers who were threatened with a new round of unpaid days off similar to a program imposed last year.

"Many of them were teetering on the edge of financial disaster, and this has allowed them to actually take a breath," De La Torre said of today's ruling.

Attorney Pat Whalen, representing state attorneys, hearing officers and administrative law judges, said today's appellate decision has triggered widespread relief. "Everybody is elated that their pay is not going to be cut," he said.

In issuing the temporary restraining order that sparked today's appellate ruling, Superior Court Judge Steven A. Brick concluded that there are "serious questions" about the legality of furloughs and that permitting them before the scheduled Sept. 13 court hearing could cause irreparable harm to workers struggling to pay mortgages and care for their families.

Brick also expressed doubt that the estimated "$80 million to $110 million" in general fund savings from from furloughs until Sept. 13 could make much of a dent in the state's $19 billion budget deficit.

Schwarzenegger, in his failed request to the First District Court of Appeal, said the lower court had overstepped its bounds by "questioning the wisdom, rather than the lawfulness" of gubernatorial policy decisions.

The Republican governor also argued that cost-cutting from furloughs was vital to retaining key health and safety programs during the budget crisis.

Even before today's appellate ruling, released about noon, the Schwarzenegger administration had instructed workers in an e-mail to report to work Friday because the legal fight over furloughs remained clouded as that date approached.

Click here to read the memo.

State workers are expected to head to the theaters Friday night to protest the opening of Gov. Arnold Schwarzenegger's latest film, "The Expendables."

Members of SEIU Local 1000 are urging others online to join the protest in light of the governor's furlough order.

Directed by Sylvester Stallone, the film features a brief cameo by Schwarzenegger. On the union's website, more than 300 people had already signed up by noon today for the protest at Sacramento's Cinemark Stadium 14 theater on Ethan Way to "Tell Arnold that we're not expendable."

Two other protests are scheduled on the same night at Broadway Circle in San Diego and Van Ness Avenue in San Francisco. Last week about a hundred Local 1000 members picketed at the movie's premiere outside Grauman's Chinese Theater in Hollywood.

The protests have even captured the attention of David Streitfeld of the New York Times, who says, "The title alone is a gift from Hollywood." Check out his story here.

Click here to read the appeal of the furlough ruling filed by Gov. Arnold Schwarzenegger's lawyers today with the Alameda Superior Court.

Colleague Jim Sanders has more on Monday's ruling at sacbee.com.

UPDATED 4:30 p.m. with details of the governor's appeal.

Gov. Arnold Schwarzenegger appealed today to overturn a judge's order temporarily blocking a new round of state worker furloughs.

Documents filed with the First District Court of Appeal in San Francisco claimed that the judge's order was "fraught with error" and "usurped the role of the executive branch in determining the effectiveness" of furloughs.

"As a consequence, the trial court's temporary restraining order will exacerbate the ongoing fiscal and cash crisis in California and will correspondingly harm the state and the public," the appeal said.

Schwarzenegger is seeking to lift a temporary restraining order issued Monday night by Alameda County Superior Court Judge Steven A. Brick. If successful, the governor could begin furloughs Friday as initially scheduled.

Click here to read Alameda County Superior Court Judge Steven A. Brick's ruling temporarily blocking Gov. Arnold Schwarzenegger's recent furlough order.

Jim Sanders has more on the ruling at SacBee.com.

The Bee's Jim Sanders just posted this at sister blog Capitol Alert:

Alameda Superior Court Judge Steven A. Brick said he expects to issue a written ruling this afternoon on whether to temporarily restrain furloughs from being imposed on state workers beginning Friday.

We've spoken to Schwarzenegger spokesman Aaron McLear about the administration's decision to suspend the June 30, 2012, date for state workers to either redeem accrued furlough time or lose it. We asked, Why the change in policy?

McLear said that since many employees have a relatively large number of banked hours, officials decided to scrap the arbitrary end date.

"Not a significant change in policy, just some added flexibility for employees," he said, noting that the impact of the decision won't be felt until mid-2012.

Click here for our previous post about the furlough rule change.

Furlough time that state workers have on the books can now stay in the bank indefinitely, according to a memo issued Thursday by the Department of Personnel Administration.

PML 2010-015 outlines the well-known details of Gov. Arnold Schwarzenegger's latest furlough order: The policy reduces state workers' pay by an amount equal to three days per month with most employees taking off commensurate time off the second, third and fourth Fridays. Several departments, union bargaining units and a few employee classifications also are exempt.

Then, at the bottom of the second page, this two-line paragraph:

SEIU Local 1000 filed amended papers on Thursday in Alameda Superior Court update previous arguments that furloughing "special fund" department employees was abritrary and that the policy itself violates labor laws and contractual agreements between the unions and the state. The amendments include the governor's July 28 order.

Click here and here to read Local 1000's amended complaints. The court hasn't yet set a date for hearing the case.

Earlier reports by The State Worker and other media have said the new round of furloughs ordered by Gov. Arnold Schwarzenegger will hit about 156,000 state workers.

That's not quite right.

The Department of Personnel Administration sent a draft pay letter to the State Controller's Office on Wednesday that defines the specifics of Gov. Arnold Schwarzenegger's furlough order.

The SCO will return the letter with appropriate codes filled in. DPA will then issue the final document.

Click here and here to read the furlough pay instructions.

On a related note, SEIU Local 1000 plans to ask Alameda Superior Court Judge Steven Brick for a temporary restraining order to stop furloughs until a full hearing can be scheduled to debate the policy.

The TRO request will be heard Monday, the union says. The first "Furlough Friday" under the new executive order is set for Aug. 13.

Local 1000 also has a lawsuit before Brick that seeks to expand the number of "special fund" departments that the union says should be exempt from furloughs. Click here to read more about it.

UPDATE, 1:20 p.m.: SEIU Local 1000 attorneys are planning to ask Alameda Superior Court Judge Steven Brick to issue a temporary restraining order on Monday that would stop Gov. Arnold Schwarzenegger's order. The union is suing to stop furloughs of its members who work in "special fund" departments.

As we reported Tuesday, CalPERS has asked State Controller John Chiang to continue issuing full pay to its 2,300 or so employees, despite Gov. Arnold Schwarzenegger's new furlough order.

Here's what SCO spokesman Jacob Roper said when we asked whether Chiang would honor CalPERS' request or the governor's order:

"It is our intention to implement the pay letter, pending judicial determination, as there is a hearing on the special fund cases next week."

PHOTO: Controller John Chiang answers a question during an interview at The Bee's Capitol Bureau in July. Hector Amezcua / Sacramento Bee.

California Attorneys, Administrative Law Judges and Hearing Officers in State Employment has filed a complaint in Alameda Superior Court seeking a temporary restraining order to stop Gov. Arnold Schwarzenegger's new furlough order from being implemented.

The complaint says that the new furloughs illegally reduce Bargaining Unit 2 members' pay and that the policy oversteps the governor's authority. The case is set for a hearing on Monday.

Click here to read the verified complaint for declaratory and injunctive relief. This link opens the union's ex parte application for order to show cause. Here's CASE's memorandum of points and authorities.

On another front, CASE has filed an unfair labor practice complaint with the Public Employment Relations Board.

The complaint alleges that Schwarzenegger has engaged in reprisals and bad-faith bargaining "by ordering that they suffer furloughs and a 14% salary reduction simply because CASE has refused to agree to the Governor's and DPA's proposals in bargaining."

Click here to download the charges filed Monday. You can open the request for injunctive relief by clicking here.

DPA has until Wednesday at 5 p.m. to respond, according to this letter from PERB.

The state's multifaceted furlough civil war took a new twist today as CalPERS CEO Anne Stausboll sent a letter to Controller John Chiang asking that he "continue to transfer funds from our accounts sufficient to fully compensate our employees, notwithstanding the governor's illegal furlough order."

The letter which you can read here, says that furloughing CalPERS employees doesn't help the general fund, that an Alameda judge ruled that furloughs are "capricious and unlawful," and that Chiang has the authority to "exercise your independent judgment on the matter."

Stausboll also says that the "new furlough will continue to interfere with our ability to carry out our constitutional duties of prudently administering the retirement system and delivering the promised benefits to our members and their beneficiaries."

Worth noting: The Stausboll letter doesn't mention that CalPERS sued Schwarzenegger over his furlough order and lost. You can read more about that case here.

We've left a message with Chiang's office seeking comment about the letter. Schwarzenegger spokeswoman Rachel Arrezola sent this e-mail comment in response to the letter:

"The state controller has said he will have to begin issuing IOUs without a budget in place, so the governor was forced to implement this short-term furlough program to preserve cash. The furlough program must be applied with only the very narrow exemptions to achieve maximum savings, feasibility and equity. The governor's authority to furlough state workers is clear and has been upheld in the courts, including the San Francisco Superior Court decision upholding CalPERS furloughs."

Gov. Arnold Schwarzenegger's hand-picked guy for lieutenant governor isn't furloughing his tiny staff.

"The Office of the Lt. Governor contracts with the Senate for its human resources services and is governed by their personnel regulations, which do not include furloughs at this time," said Erin Shaw, Lt. Gov. Abel Maldonado's communications director, in an e-mail to The State Worker.

We had asked whether Maldonado would furlough his seven employees after noticing that he had pulled his office out of a furlough lawsuit appeal that was backed by his predecessor, John Garamendi. After Garamendi won a congressional seat last year, Maldonado assumed the office in April after his appointment by Schwarzenegger and a lengthy and contentious confirmation.

Garamendi, a vocal critic of furloughs, was one of the Democratic statewide office holders -- the so-called "constitutionals" -- whom Schwarzenegger sued for refusing to furlough their employees. The constitutionals have maintained that the governor can't legally dictate how they run their operations and that they have avoided furloughs by finding other ways to save money.

Here are the other constitutional officers: Attorney General Jerry Brown, Secretary of State Debra Bowen, Treasurer Bill Lockyer, Controller John Chiang, Superintendent of Public Instruction Jack O'Connell and the members of the Board of Equalization.

Insurance Commissioner Steve Poizner, the lone Republican constitutional officer at the time, didn't furlough his people but also stayed out of the legal fight.

The constitutionals lost at the trial court level and appealed the decision to Sacramento's 3rd District Court. There's been no hearing date set for the case.

On June 30, Maldonado asked for his office to be dismissed from the appeal.. The appellate court granted the request on July 2.

Gov. Arnold Schwarzenegger spoke this morning to the Central California Hispanic Chamber of Commerce in Fresno. During a question-and-answer period, he was asked, "Why did the state workers have to bear the brunt of fiscal mismanagement? When do we get our money back? When will the furloughs end?"

Our Bee Capitol Bureau colleague, Kevin Yamamura, was listening to the event live and caught the governor's answer, perhaps his most lengthy public statement on his furlough policy to date.

You can download the audio file by clicking here. The furlough question starts at the 36-minute mark.

While you're waiting for the file to load, you can read Kevin's faithful transcription:

Look for SEIU Local 1000 attorneys to attack Gov. Arnold Schwarzenegger's latest furlough order on Wednesday when they file an amendment to an existing lawsuit now in Alameda Superior Court.

Local 1000 isn't yet going after a temporary restraining order which, if granted, would stop furloughs cold for its members.

During a scheduled hearing on Friday, Local 1000 lawyer Felix De La Torre asked Judge Steven Brick if the union could add complaints about Schwarzenegger's latest furlough order to a lawsuit the union filed in May. That lawsuit was the second to list a number of "special fund" departments that Local 1000 says should be exempt from furlough.

Brick gave the union until Wednesday to file its amendment. Schwarzenegger's side will then have a few days to respond. There's been no hearing date set.

The state Supreme Court has set Sept. 8 to hear oral arguments in the furlough cases it recently decided to take up. The hearing, according to the court's website, will be held at 9 a.m. in San Francisco.

It's not clear how long after the hearing that the court will render a decision.

Click the following links for earlier State Worker coverage of the Supreme Court's decision to consider take up furloughs:

California Supreme Court takes case on state worker furloughs
Why the Supremes said 'no,' then 'yes' to furlough review
Did Schwarzenegger and chief justice talk about furlough litigation?
The State Worker: Sometimes the conspiracy dots don't connect
State Supreme Court snaps up more furlough lawsuits
Poll: Furlough arguments months away; budget before or after?

This e-mail from Correctional Sgt. Leesa Kirby was among roughly 300 we received in the aftermath of Gov. Arnold Schwarzenegger's furlough order last week. We're posting her e-mail here with her permission. She's speaking for herself, not her employer or anyone else:

We've been calling the state constitutional officers to see if any plan to furlough their employees next month in keeping with Gov. Arnold Schwarzenegger's new executive order. All have refused earlier furlough orders, citing what they believe is their constitutional independence to control their own employees.

In response to our query, Department of Education information officer Tina Jung sent over a recent e-mail to all staff from Jack O'Connell, state superintendent of public instruction:

Correction: An earlier version of this post included psychiatric technicians as a group that will work on a self-directed furlough schedule. Psychiatric technicians are exempt from furloughs under the terms of Gov. Arnold Schwarzenegger's latest furlough order. We regret the error.

Welcome to Day 30 without a 2010-11 state budget. Here's one way to think of the delay's cost to state workers:

The Schwarzenegger administration figures that each day that the state goes without a budget costs the state another $50 million. That means as of today, the state has burned through $1.5 billion due to legislative inertia.

The Legislature has been on paid vacation this month.

Coincidently, the furlough program ordered by Gov. Arnold Schwarzenegger lops off just about $50 million in state payroll costs for every day that the 156,000 workers impacted by it take an unpaid day off. (Many employees such as correctional officers will work full schedules, take the pay hit but may have to defer the time off, depending on departmental needs.)

In other words, it would take 10 months of furloughs just to make up for cash burned through by lawmakers' budgetary procrastination.

In case you missed it, Schwarzenegger spokesman Aaron McLear and Bruce Blanning, head of Professional Engineers in California Government, talked about the governor's new furlough order Wednesday on Sacramento's KCRA (Channel 3).

McLear defined the governor's program as a move forced by the state's looming cash crunch and the budget impasse: "The week the controller came out and said we're running out of cash ... The Legislature is now seven weeks past their deadline to pass a budget."

Blanning said that the order was a political ploy by a "frustrated" governor who hasn't been able to get what he wants from labor and the lawmakers: "It's pretty much a political move to put pressure on the Legislature and to put pressure on those unions that haven't reached agreement with him."

Click here to view the discussion with KCRA's Kevin Riggs. You can read our furlough story in today's Bee by clicking here.

As we've just reported, Gov. Arnold Schwarzenegger has issued a new executive order that requires state employees take three furlough days per month until lawmakers enact a 2010-11 budget.

The order exempts the following departments:

California Highway Patrol
California Department of Fire and Forestry Protection (CalFIRE)
Franchise Tax Board
Board of Equalization
Employment Development Department
State Compensation Insurance Fund
California Housing Finance Authority
California Earthquake Authority

It also excludes Bargaining Units 12, 16, 18 and 19, which along with unions representing CHP officers and state firefighters, recently reached tentative agreements with Schwarzenegger.

Click here to read the executive order.

VIDEO CREDIT: Dino Gomez, a California state worker with the Department of General Services, reacts to Gov. Arnold Schwarzenegger's order to start three days of furloughs a month starting Sunday. Video by Hector Amezcua/ hamezcua@sacee.com

Editor's note: This post has been changed to specify the departments excluded from the governor's furlough order. It also clarifies payroll cost savings from furloughs last year.

Less than one month after ending furloughs for about 200,000 state workers, Gov. Arnold Schwarzenegger this morning brought back a scaled-down version of the policy, effective Sunday.

The governor made the decision this week after Controller John Chiang said that unless lawmakers enacted a budget soon, the state's cash would go into the red by October. Chiang said he'll start issuing IOUs in August or September to conserve funds as long as possible.

"We have a fiscal crisis," Schwarzenegger spokesman Aaron McLear said this morning as he explained the new furlough order. "We're doing what we have to do to conserve cash."

Like the policy that ended June 30, the governor's new executive order requires employees take three unpaid days off per month. The administration figures the payroll savings will amount to $147.2 million per month, about $80 million of that from the general fund.

But unlike the earlier policy, this one has no termination date: Furloughs will end when lawmakers pass a 2010-11 budget. That could be weeks or months after the Legislature reconvenes on Monday.

And unlike earlier policies, the new order exempts employees who work several departments, specifically the Board of Equalization and the Franchise Tax Board, the Employment Development Department, State Compensation Insurance Fund, the California Housing Finance Authority and the California Earthquake Authority. All employees of the Highway Patrol and the Department of Fire and Forestry Protection are also exempt.

The order doesn't explain the criteria for deciding to exclude those departments.

A Sacramento Superior Court hearing today wound up pushing back the date for when attorneys will again debate whether Controller John Chiang must issue minimum wage paychecks to state workers. The upshot: No minimum wage for state workers now at least through September, and quite possibly well beyond that.

Instead, "other issues" will be discussed during an Aug. 26 hearing and "the infeasibility argument will take place some time in the future," said Ryan Endean, spokesman for PECG and CAPS, two of the unions that have supported Chiang's position.

It's not clear when the court will hear infeasibility arguments. The case hinges on expert testimony and analysis, so the two sides will need time to compile their evidence and witnesses, exchange the information and then break down the opposition's arguments.

"So by our understanding," Endean said, "we're looking at full wages at least through September, if not beyond."

The caveat: If the budget fight drags on, Gov. Arnold Schwarzenegger could order more furloughs. Click here for a recent post about that.

As we reported in Thursday's State Worker column, the Schwarzenegger administration's cost for furlough litigation has crossed the $1 million threshold. Now we have the latest contract with the private firm handling the state's side of the litigation, Sacramento-based Kronick, Moskovitz, Tiedemann & Girard.

The latest terms allow up to $1.75 million for services rendered by Kronick from Nov. 1, 2008, through June 30, 2011.

Click here to read the current contract between the state and the law firm plus all of the other agreements drawn up since late 2008.

Thursday was sort of a finish line for long-suffering state workers since it was the last day that the State Controller's Office could make mass changes to July payroll.

That means formerly furloughed state workers on Aug. 1 will receive paychecks reflecting full hours and pay for the first time in 17 months. The August checks for straight time worked will be nearly 15 percent more than those issued on July 1.

Gov. Arnold Schwarzenegger lifted furloughs on June 30. The next day he issued instructions to withhold state worker pay to the federal minimum. A court last week refused to force Controller John Chiang to comply this month. A hearing before Sacramento Superior Court Judge Patrick Marlette will likely be scheduled for late August, but it's likely that will come after the payroll change deadline for Sept. 1 checks.

How long will it last? It's not clear what will happen with the minimum-wage court fight, so let's set that aside.

Gov. Arnold Schwarzenegger on Wednesday asked the state Supreme Court to add SEIU Local 1000 v. Schwarzenegger to the list of furlough cases under the high court's review.

The governor is hoping the court will overturn an appellate ruling that upheld trial court Judge Charlotte Woolard's decision that furloughing SEIU-covered employees at the State Compensation Insurance Fund violated California insurance code.

Among the arguments that Schwarzenegger attorney David Tyra makes:

Editor's note: This item was published on Tuesday. Since then, several blog users have asked for June 23 and June 30 court documents referenced at the end of the post. We're republishing the item here with links to the those filings at the end of the post.

Attorneys for Gov. Arnold Schwarzenegger have filed a new brief with the state Supreme Court in PECG v. Schwarzenegger (Case No. S183411) The document is a response to a "friend of the court" brief filed on June 24 by Attorney General and Democratic gubernatorial candidate Jerry Brown and several of his fellow constitutional officers.

Aaron McLear, who often speaks on behalf of Gov. Arnold Schwarzenegger, talked with KCRA (Channel 3) on Friday about the legal fight over withholding state worker pay to minimum wage and connected it with the state budget stalemate.

During the interview McLear expresses regret that "valuable public servants who do a great job for the people of California" face an increasing likelihood of "minimum wage, more furloughs and layoffs" as budget talks drag on into the new fiscal year.

Click the viewer above to see the interview.

In a lengthy and detailed e-mail to its members on Thursday, CASE lays out what's happening with contract talks ("... the Bargaining Team will continue to negotiate ..."), litigation ("... we have filed numerous briefs in our various furlough lawsuits ...") and minimum wage ("... , it is possible that pay for the July pay period ... could be in jeopardy ...")

In an analysis of the promise made by Schwarzenegger that unions with tentative agreements won't be subject to minimum wage, the CASE letter notes:

Professional Engineers in California Government and the California Association of Professional Scientists on Wednesday filed a brief in the state Supreme Court.

The filing concerns PECG v. Schwarzenegger (Supreme Court Case No. S183411), one of three early furlough cases that were in the 3rd District Court of Appeal before the high court took them up last month. Furlough appeals by SEIU Local 1000 and California Attorneys, Administrative Law Judges and Hearing Officers in State Employment have been combined with this case. We'll post those unions' briefs later.

The governor will file one more brief by mid-July, in response to an argument filed by Attorney General Jerry Brown and several other constitutional officers who have sided with the unions.

It's furlough litigation filing season at the California Supreme Court.

As you'll recall, the state's highest court has scooped up several furlough cases for review and has asked the various parties to submit responses to questions about the legality of the governor's policy.

First up: CASE v. Schwarzenegger (Supreme Court Case No. S182581), which challenged furloughs of 500 State Compensation Insurance Fund attorneys based on California insurance code that prevents "staff cutbacks" at the fund. California Attorneys, Administrative Law Judges and Hearing Officers in State Employment won in San Francisco Superior Court and prevailed again when the governor appealed.

The state Supreme Court in May took the case for review on its own initiative, although the circumstances surrounding that decision have proven somewhat controversial.

Click here to read the CASE brief, which seeks to answer the court's reason for review: "Does the Governor have the authority to furlough the state employees at issue in this case by executive order?"

Then click here for the brief filed on behalf of State Fund, which didn't want to furlough its employees, did anyway, and then came out against the policy in court. And this document registers the fund's Opposition to Request for Judicial Notice, which seeks to keep the governor's side from introducing documents "that were either not part of the record" in the earlier court cases or "are irrelevant" to the Supreme Court's specific review.

The governor's side filed an opening brief on June 9 and has until July 9 to respond.to CASE and State Fund's briefs. It's doubtful that the court will schedule a hearing before September. Click here for more about that.

IMAGE: www.yolocourts.ca.gov

Attorney General and Democrat gubernatorial candidate Jerry Brown has filed a "friend of the court" brief in Professional Engineers in California Government v. Schwarzenegger. which is one of the furlough cases recently taken up by the state Supreme Court. PECG And California Asssociation of Professional Scientists also filed answers to questions raised by the court.

Joining Brown: Secretary of State Debra Bowen, Treasurer Bill Lockyer, Superintendent of Public Instruction Jack O'Connell and the Board of Equalization.

Among the arguments the constitutional officers make: The Reduced Worktime Act doesn't grant the governor any power to implement a state employee furlough and that neither the 2008 Budget Act nor subsequent budget measures confer furlough power on the executive.

Click here to download the 20-page document, which was filed on Wednesday.

That same day, PECG and CAPS filed a letter brief that says many of the same things as the Brown filing. Click this link to download it.

IMAGE: www.yolocourts.ca.gov

The California Department of Corrections and Rehabilitation is suspending its inmate visitation program on Saturday and Sunday to save money.

The department figures the shutdown will save $400,000 in overtime costs for the two days, just before the 2009-10 fiscal year ends June 30. The policy doesn't apply to attorney visits or visits to terminally ill inmates.

Earlier this month, the department ended its "Third Day" visits for the same reason. That program expanded visiting days to include Fridays at 21 of the state's 33 adult prisons as a reward for inmates who participated in rehab. CDCR hasn't announced when it will restart the program.

A press release about the Third Day program notes the shutdown will "provide coverage for staff on leave due to state mandated furlough or other vacancies."

Department of Personnel Administration Director Debbie Endsley has sent a memo to all California state agencies that lays out the Gov. Arnold Schwarzenegger's position on furloughs (they're over ... for now) and the possibility of employee pay being withheld to minimum wage (he'll do it if there's no budget).

The latter assumes, of course, that the 3rd District Court of Appeals doesn't overturn a lower court ruling that State Controller John Chiang overstepped his authority by refusing to implement a similar wage withholding order during the 2008-09 budget impasse.

Here's the memo, which at least some agencies are forwarding to their workers:

Here's an update on the furlough and minimum wage situations.

With respect to furloughs, the current program ends June 30, and the Administration expects the State to resume normal hours of operation in July. The Governor's budget proposal includes four proposals to reduce employee compensation costs: a wage cut, one day per month of unpaid leave, increased employee contributions to pensions, and the workforce cap. The Governor retains the right and authority to order furloughs if necessary to address a fiscal and cash crisis.

As for the prospect of state workers receiving minimum wage in lieu of full wages, it will depend on when the Legislature and the Governor reach a budget agreement. The California Supreme Court ruled in 2003 (White v. Davis) that absent an appropriation, which for most of the payroll comes through the annual state budget, the Controller is prohibited from paying state workers beyond what is required by the federal Fair Labor Standards Act (FLSA). Absent a state budget, we will send instructions to the Controller to pay wages in accordance with the FLSA for the July pay period.

The four unions that recently reached tentative agreements on new contracts (CHP officers, firefighters, psychiatric technicians, and some medical professionals) would not be subject to any new furlough program or minimum wage payments, assuming their contracts are ratified in a timely manner.

Debbie Endsley

A recent e-mail from blog user D, who regularly corresponds with The State Worker and contributes to the blog behind the scenes, summed what many folks are saying as June 30 approaches:

There are four significant dates that state workers will be watching and two significant events that could happen any time:

Negotiators for the California Association of Professional Scientists have pulled back the counterproposal that they had offered on June 3.

The 1st District Court of Appeal has ruled against Gov. Arnold Schwarzenegger's appeal of Judge Charlotte Woolard's judgment in SEIU Local 1000 v. Schwarzenegger. The union's lawsuit successfully argued that furloughing State Compensation Insurance Fund employees violated state insurance code.

Click here for the details of the appeal, which sought to overturn the ruling -- or to at least to return Woolard's blanket back pay decision to the lower court for more argument.

Aside from the back pay argument, the governor's appeal mirrored his recent bid to overturn CASE v. Schwarzenegger. The administration lost that appeal as well. The state Supreme Court, on its own authority, has taken up that case and three others.

We expect this one will go to the California high court as well.

Click here to read the appellate court's decision.

IMAGE: www.yolocourts.ca.gov

The California Supreme Court has taken over the three original furlough cases decided by Sacramento County Superior Court Judge Patrick Marlette. Those cases were pending in Sacramento's 3rd District Court of Appeal.

All the documents filed in the appellate court will be treated as though they had been filed in the Supreme Court.

Service Employees International Union Local 1000 has filed a furlough lawsuit in Alameda County Superior Court to cover state government bodies that weren't named in an earlier complaint that successfully challenged furloughing employees in "special fund" departments.

The Department of Personnel Administration was served with the complaint on Tuesday. The union filed it on May 21.

Local 1000 had tried to convince Judge Frank Roesch to include a number of departments to those named in a case on which he ruled earlier. The judge refused the request on May 18 because it wasn't timely.

Here's a list of the departments, commissions named in the new lawsuit:

Lawyers representing Gov. Arnold Schwarzenegger and attorneys for SEIU Local 1000 argued furloughs in San Francisco's 1st District Court of Appeal this morning. The judges didn't issue a ruling.

But the new twist in today's case: Schwarzenegger wants to send the back pay issue back to the lower court for reconsideration.

Local 1000 attorney Felix De La Torre said in a brief telephone interview a few minutes ago that the administration argued that the remedy in SEIU Local 1000 v. Schwarzenegger should have been treated differently. Instead of Judge Charlotte Woolard's one-size-fits-all decision for the 7,900 State Compensation Insurance Fund workers -- back pay plus 7 percent of their furloughed wages -- the employees' losses should have been considered individually.

"Our response was that in this case everybody lost the same percentage of wages," De La Torre said.

So, while hoping that the forerunner to this lawsuit, CASE v. Schwarzenegger, would go up to the state Supreme Court, De La Torre said, "they want the whole back pay issue (in the SEIU case) to go back to the lower courts."

And if the appellate court agreed with Schwarzenegger, it's not clear how the trial court would execute the order, since State Fund's employees have received their money.

The administration's appeal of the CASE decision didn't include that argument. We have a call into the Department of Personnel Administration to get their comments on today's court action.

Based on the judge's questions, "I got a feeling that judges weren't buying it," De La Torre said.

The hearing ran an hour, twice the time that arguments usually run, De La Torre said, adding, "I thought it went well. The bench was very active."

UPDATE, 4:40 p.m.: We've spoken to DPA spokeswoman Lynelle Jolley about this morning's court action. Administration attorneys said that the bench raised the issue of State Fund back pay and whether the remedy was inappropriate because there was no evidence presented to justify the cash payment that fund employees eventually received.

So, it's possible that the Governor could lose his appeal of the lower court's decision that he illegally furloughed State Fund employees, but still win the argument that the remedy needs to be revisited at the trial court level.

Or the governor could win on the merits (but remember, this court already ruled against him in a similar case), which would make moot a lower court review of the remedy.

So, we asked, let's say that the lower court decided the remedy was too generous to some employees. How would the state reclaim the money?

"We'll cross that bridge when we come to it," Jolley said.

Although the state Supreme Court has set a pretty quick time line for both sides to file briefs in CASE v. Schwarzenegger, it looks like the matter won't go to oral arguments until September at the earliest.

The last deadline for briefs in the case is July 9, and the court doesn't hear oral arguments that month or in August. Unlike the U.S. Supreme Court, the California Supreme Court works during the summer and occasionally holds "special sessions," spokeswoman Lynn Holton told The State Worker, but there was nothing in the court's order that indicated one would be called.

Meanwhile, lawmakers are confronting a $19 billion budget deficit and appear to be a long way from agreeing on how they'll close it. Could an impasse drag into September?

Breaking news from New York via the Associated Press:

A federal judge on Friday halted attempts by New York's governor to impose furloughs on about 100,000 state workers and withhold their raises.

U.S. District Judge Lawrence Kahn had temporarily blocked the furloughs two weeks ago. His new preliminary injunction bars Gov. David Paterson and lawmakers from submitting or enacting short-term funding bills with those provisions.

The unions went to court, arguing the cost-saving moves changed the terms of their negotiated contracts in violation of the U.S. Constitution. One-day-a-week furloughs were part of one emergency spending bill approved by the Legislature, though the Senate also passed a resolution criticizing the plan. Raises have been withheld in several of the emergency bills, which are being used each week to keep the state running until a budget is finalized.

Click here for the full story.

Attorneys for Gov. Arnold Schwarzenegger and SEIU Local 1000 are scheduled to debate furloughs this morning in San Francisco's 1st District Court of Appeal.

They're arguing the merits of Judge Charlotte Woolard's decision that furloughing employees at State Compensation Insurance Fund violated insurance code preventing "staff cutbacks" at the fund. Click here for more about the legal saga that led to all of the SEIU-represented employees -- and everyone else at the fund -- receiving furlough back pay plus 7 percent.

The SEIU case mirrors the litigation that the state Supreme Court earlier this month decided it would review, CASE v. Schwarzenegger. The governor lost an appeal of CASE with the 1st District Court of Appeal. That same court is hearing today's arguments.

Click here for our Furlough Fights spreadsheet, which lays out the status of furlough litigation in courts around the state.

IMAGE: www.yolocourts.ca.gov

McGeorge School of Law professor and private-practice attorney Athena Roussos is one of several legal experts we consult when writing about pivotal moments in furlough litigation. Last week we quoted Roussos in this story about the state Supreme Court taking up CASE v. Schwarzenegger.

This morning Roussos e-mailed The State Worker with a few more thoughts about why the court took the case less than a month after it rejected Gov. Arnold Schwarzenegger's request that it consolidate and consider seven others. With her permission we're posting the e-mail here, unedited:

Gov. Arnold Schwarzenegger and the chief justice of California's Supreme Court talked about the judicial branch's budget on the same day that an administration lawyer hand-delivered a controversial letter that informally asked the court to review a furlough case that the governor had twice lost.

There's no connection between those May 11 events, the Schwarzenegger administration says, or the May budget revision three days later that added $19 million in new fee revenue for the trial security, or the Supreme Court's unanimous decision on Thursday to review CASE v. Schwarzenegger as the governor had hoped.

"The budget meeting had nothing to do with the furlough lawsuit," said Schwarzenegger spokesman Aaron McLear. "The governor and the chief justice didn't discuss the (lawsuit) letter ... We never talk about cases that may come before the courts."

The State Worker made several calls to the state Supreme Court in San Francisco this afternoon, but couldn't reach an authorized spokesperson.

Patrick Whalen, the lead furlough litigator for CASE, which represents about 3,800 state legal professionals, said he was unaware of the May 11 meeting between Schwarzenegger and George.

"We're confident in the judiciary's ability to decide this case fairly," Whalen said.

Thursday's state Supreme Court order involves a San Francisco trial court decision, subsequently upheld on appeal, that the governor's furlough of 500 legal staff at State Compensation Insurance Fund violated a law that protects its employees from "staff cutbacks."

Service Employees International Union Local 1000 won a similar lawsuit that returned the remaining 7,500 State Fund employees to full hours and pay and restored their lost wages plus 7 percent. The governor has appealed.

Local 1000 spokesman Jim Zamora declined to comment on last week's meeting between Schwarzenegger and George.

The two government leaders have met seven times since early 2008, McLear said. Many if not all of the meetings involved the judicial branch's budget and there was always plenty of support staff in the room.

"These aren't secret talks," McLear said, calling last week's meeting "routine."

Three days after Schwarzenegger and George met, the governor released his annual May budget revision, which included an increase of $91 million from the state's general fund for the judicial branch.

That money, however, replaced anticipated funding the courts lost when lawmakers didn't sign off on Schwarzenegger's plan to fund the courts with traffic speeding fines using cameras to catch more violators.

The May budget revision also included a new fee to raise $19 million for court security.

Hat Tip: The Recorder, which reported the meeting in this story, and to blog user H for making us aware of it.

The state Supreme Court has decided to review CASE v. Schwarzenegger, using its authority to take cases even when no one formally asks it to do so.

We have a story in today's Bee that you can read here. And this link opens a State Worker blog post with background details.

We'll write more today about this new twist in the epic furlough fight between Gov. Arnold Schwarzenegger and state employee unions. Stay tuned.

The Bureau of State Audits released a Corrections and Rehabilitation Department report yesterday that looked at the costs of health care for "three strikes" inmates. What grabbed our attention was the section titled, "Furloughs Have Created New Liabilities," which starts on page 60 of the 80-page document.

At page 61, the auditor makes these calculations and conclusions (we've added paragraphs and bold type for readability and emphasis):

David Tyra -- the private attorney whose firm, Kronick Moskovitz Tiedeman and Gerard, has been retained by the Schwarzenegger administration for furlough litigation -- has asked the state Supreme Court to consider taking up a case that the administration has twice lost.

Well, that's sort of what he asked. Stay with us on this.

This just in from Nicholas Confessore of the New York Times :

A federal judge temporarily blocked on Wednesday a one-day furlough of state workers scheduled by Gov. David A. Paterson for next week, reversing a plan that Mr. Paterson has said is necessary to keep the state from running out of money at the end of the month.

Judge Lawrence E. Kahn of United States District Court issued a temporary restraining order against Mr. Paterson, after unions representing state employees and public university teachers filed a lawsuit alleging that the furloughs, approved by the Legislature on Monday, were illegal.

Judge Kahn's ruling also bars Mr. Paterson from seeking any further furloughs pending a hearing in his chambers, scheduled for May 26.

Click here to read the rest of the report.

Hat tip to the unidentified State Worker blog user who called to alert us to this breaking news.

So how much do politics play a role in the decisions that judges render in trial court furlough lawsuits?

Of the 15 furlough lawsuit decisions rendered by six Superior Court judges so far, Gov. Arnold Schwarzenegger has won nine, and unions and other dissenting entities have won six. Here's a chart of the rulings split up by party affiliation of the governor who appointed the judge:

Fairness alert: Any judge would say that he or she rules on the basis of the law, not personal political leanings or the party affiliation of the governor who appointed them. This blog isn't in a position to divine otherwise.

And a judge who ruled for Schwarzenegger in one case could rule against him in another because the arguments made in the second case might be completely different. Indeed, Judge Charlotte Woolard, a Pete Wilson appointee to the bench in 1995, did just that by siding with Schwarzenegger twice and with SEIU Local 1000 once.

You can click here to view a more detailed list of the lower court rulings, the judges and the governors who appointed them.

And our newest Furlough Fights spreadsheet, which lays out all the lawsuits, litigants and court locations, is available by clicking this link.

Aaron McLear, spokesman for Gov. Arnold Schwarzenegger, appeared briefly this morning on the Fox Business Network to talk about pensions on "Varney & Company".

Click here to see the video clip and transcript.

What the clip doesn't show you is Varney's lead into the interview: a snippet of last week's "Saturday Night Live" sketch about public employees. Click the viewer below to see the seven-minute bit. As you might expect, the sketch isn't flattering to civil service workers.

Last week's decision by the state Supreme Court to reject Gov. Arnold Schwarzenegger's furlough lawsuit consolidation request prompted many State Worker blog users to e-mail or call with questions about the ruling:

How many members of the court were involved in the decision?

All seven justices weighed in. Justice Joyce Kennard was the only one who indicated she would have granted the governor's request.

The court's ruling was very brief. Will the court publish more about the decision?

Click the following link for the answer to this question and others about the state Supreme Court's decision.

We have a copy of SEIU Local 1000's supplemental brief in its furlough lawsuit appeal in Sacramento's 3rd District Court.

For you Shakespeare fans out there, union attorney Anne Giese cites his famous tragedy "MacBeth."

Here's the pertinent passage:

Click here to download the 14-page document. This link will open a recent post about the status of the three furlough cases now before the 3rd District Court.

As is always the case when we highlight state worker e-mails, this post by Paul Warrick generated plenty of comments. Another state worker, Roger Wood, felt compelled to respond to Warrick's call for SEIU Local 1000 "to make highly publicized concessions to demonstrate a good faith effort to be part of the solution to California's deficit crisis."

With Wood's permission, we're posting his e-mail to The State Worker here, unedited. He speaks for himself, not his employer or this blog:

Mr. Ortiz,

As a manager who works in the Unemployment Insurance system, I find Mr. Warrick's comments ill-informed. All the furlough has done for our employees is to make their lives harder. We are still working 5-6 days a week as we have "self-directed" furloughs so our centers are still open the same hours as they were prior to the furloughs being implemented. Were we to be closed 3 days a month and also not allowed to work Saturdays, this could easily result in a 15% reduction in the benefits paid out to the public. We paid out $20.3 billion in benefits in 2009. A 15% reduction of over $3 billion would have helped no one and would have hurt families who depend on the monies to survive and local businesses who depend on people being able to buy goods and landlords who depend on people paying rent. In addition, our budget is almost exclusively federally funded which means our furloughs have saved the state almost nothing. In addition other state agencies which collect revenues have had to cut back on their work. When staff use their furlough days in addition to whatever time they have scheduled off, it simply means that less work can get done, meaning even less checks get sent out to the needy.

I may not have expressed myself perfectly, but I hope you understand what I am trying to say. If the staff ever gets tired and stops working overtime on Saturdays and holidays, the public is really going to be hurting. Cutting our salaries to balance the budget is not the answer. We already have enough of a problem hiring qualified people and keeping them from leaving for private employers or better paying other state jobs. A salary cut would only exacerbate the problem.

Roger WOOD

April 24 Editor's note: This item was erroneously posted with an April 22 date s