Stanford Law School - Robert Crown Law Library

Filed 7/28/05

IN THE SUPREME COURT OF CALIFORNIA

CALIFORNIA STATE PERSONNEL
BOARD et al.,
Plaintiffs
and
Respondents,
S122058
v.
) Ct.App.
3
C042437
CALIFORNIA STATE EMPLOYEES
ASSOCIATION, LOCAL 1000,
SEIU, AFL-CIO,
Sacramento County
Super. Ct. No. 02CS00787
Defendant and Appellant.

The California Constitution establishes that permanent appointments and
promotions in state service shall be made solely on the basis of merit. In light of
this constitutional imperative, we conclude the Legislature may not approve
collective bargaining agreements requiring that state employers make such
appointments and promotions based solely on the seniority status of candidates
meeting all eligibility requirements, including the requisite ranking after a
competitive examination in nontransfer cases, without allowance for comparative
merit evaluations of those candidates.
FACTUAL AND PROCEDURAL BACKGROUND
The Department of Personnel Administration (DPA) represents the
Governor of California in collective bargaining negotiations with representatives
of state employees in civil service. (Gov. Code, §§ 3517, 19815.4, subd. (g); all
1

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further statutory references are to this code unless otherwise specified.) The
California State Employees Association (CSEA) is the exclusive elected
representative for state employees in bargaining unit 1 (professional,
administrative, financial, and staff services), unit 4 (office and allied staff), and
unit 11 (engineering and scientific technicians).
At issue in this case are collective bargaining agreements that DPA and
CSEA negotiated for units 1, 4, and 11. The agreements provide that “post and
bid” pilot programs be applied within a limited number of classifications in the
three units, requiring that permanent appointment and promotion of employees
eligible for post and bid positions be based on seniority in state service. The
programs were to sunset on July 2, 2003, in the absence of any future agreement
on their continuance. The Legislature approved the resulting memoranda of
understanding (MOU’s), and the Governor signed them into law.1
Plaintiffs herein, the State Personnel Board (the SPB) and its executive
officer, filed a petition for writ of mandate to enjoin defendants DPA and CSEA2
from implementing the post and bid programs on the ground they violate the merit
principle enshrined in article VII of the state Constitution for permanent civil
service appointments and promotions. (Cal. Const., art. VII, § 1, subd. (b).)

1
Although these MOU’s expired while the appeal was pending, the Court of
Appeal did not dismiss the matter as moot. We agree review is appropriate,
because the constitutionality of the post and bid programs is an issue of continuing
public interest that is likely to recur but evade review. (Conservatorship of
Wendland (2001) 26 Cal.4th 519, 524, fn. 1; Almassy v. L.A. County Civil Service
Com. (1949) 34 Cal.2d 387, 390.)
2
Defendant DPA is not before this court. Accordingly, all further references
to defendant are to CSEA.
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The superior court ruled in plaintiffs’ favor, concluding the challenged
programs “will, as routinely implemented, fundamentally, directly, and inherently
conflict with state Constitutional merit principles and, as such, are unconstitutional
on their face.” In essence, the court determined the merit principle “extends
throughout the hiring process, up to and including the actual appointment or
promotion of the individual” and is not limited to the initial qualification and
examination phase resulting in the compilation of certified lists of ranked
employees who are eligible for available post and bid positions.
The Court of Appeal reversed, finding no violation of the merit principle.
We granted plaintiffs’ petition for review.
DISCUSSION
A. The Constitutional Merit Principle and the State Civil Service Act
Article VII of the California Constitution provides that, generally, the civil
service includes “every officer and employee of the State” (id., art. VII, § 1, subd.
(a)) and that permanent appointment and promotion in the civil service “shall be
made under a general system based on merit ascertained by competitive
examination” (id., art. VII, § 1, subd. (b)). This constitutional mandate, known as
the “merit principle,” was adopted by California voters in 1934 in an effort to
eliminate the “spoils system” of political patronage from state employment and to
ensure that “appointments and promotions in state service be made solely on the
basis of merit.”3 (Pacific Legal Foundation, supra, 29 Cal.3d at p. 184; id. at pp.

3
We recounted a detailed history of the constitutional mandate in Pacific
Legal Foundation v. Brown (1981) 29 Cal.3d 168 (Pacific Legal Foundation). In
brief, we explained: “In 1913, the California Legislature enacted a statute creating
California’s first civil service system in an attempt to combat the ‘spoils system’
of political patronage in state employment.” (Id. at pp. 181-182.) By the early
1930’s, however, that statutory system was failing due to abuse in the creation of

(footnote continued on next page)
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181-183; see also Professional Engineers in Cal. Government v. State Personnel
Bd. (2001) 90 Cal.App.4th 678, 690 (Professional Engineers).) Another
constitutional provision, also adopted in 1934, calls for a nonpartisan personnel
board (the SPB) to enforce the civil service statutes (Cal. Const., art. VII, §§ 2, 3,
subd. (a)) and for an executive officer to administer the statutes under the SPB’s
rules (id., §§ 2, subd. (c), 3, subd. (b)).
To implement the merit principle, which we have deemed “inviolate”
(Pacific Legal Foundation, supra, 29 Cal.3d at p. 194), the Legislature passed the
State Civil Service Act (§ 18500 et seq.) (the Act). (§ 18570.) The Act’s purpose
is “to ensure that appointments to state office are made not on the basis of
patronage, but on the basis of merit, in order to preserve the economy and
efficiency of state service.” (State Personnel Bd. v. Fair Employment & Housing
Com. (1985) 39 Cal.3d 422, 432 (plur. opn. of Broussard, J.).) To accomplish this,
the Act generally requires appointing powers to fill vacant positions “by

(footnote continued from previous page)

exemptions and of authorizations for temporary employment that were not subject
to the civil service statutes. (Ibid.) In response to the perceived statutory failures,
the people of California, in 1934, adopted article XXIV of the state Constitution
“to establish, as a constitutional mandate, the principle that appointments and
promotions in state service be made solely on the basis of merit.” (Pacific Legal
Foundation, at pp. 182-184.) “The 1934 version of article XXIV was revised in
1970 under the auspices of the California Constitution Revision Commission, but
the revision made no substantive changes in the provisions relevant to this action
and merely deleted obsolete and superfluous language from the original
provisions. [Citation.] Under a constitutional reorganization measure in 1976,
article XXIV was repealed but its provisions were adopted verbatim as article
VII.” (Id. at p. 184, fn. 8.) Thus, “[t]he current provisions of article VII derive
directly from the provisions of former article XXIV.” (Ibid.)
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appointment” and, except as otherwise provided, requires appointments to “be
made from employment lists.” (§ 19050.)4
The Act specifies that an “employment list” includes an “eligible list,”
meaning “a list of persons who have been examined in an open competitive
examination and are eligible for certification for a specific class.” (§§ 18532,
18537.) Eligible lists are “established as a result of free competitive examinations
open to persons who lawfully may be appointed to any position within the class
for which these examinations are held and who meet the minimum qualifications
requisite to the performance of the duties of that position as prescribed by the
specifications for the class or by board rule.” (§ 18900, subd. (a).)
The competitive examination process has been referred to as the
“ ‘cornerstone’ ” of the merit principle. (Alexander v. State Personnel Bd. (2000)
80 Cal.App.4th 526, 542 (Alexander), quoting Lund v. California State Employees
Assn. (1990) 222 Cal.App.3d 174, 186.) Under the Act, examinations to establish
eligible lists must be “competitive and of such character as fairly to test and
determine the qualifications, fitness, and ability of competitors actually to perform
the duties of the class of position for which they seek appointment.” (§ 18930, 1st
par.) While all examinations must conform to this requirement, they may vary in
terms of being “assembled or unassembled, written or oral, or in the form of a
demonstration of skill, or any combination of these; and any investigation of
character, personality, education, and experience and any tests of intelligence,
capacity, technical knowledge, manual skill, or physical fitness which the board
deems are appropriate, may be employed.” (Id., 3d par.) The names of the

4
An “appointing power” refers to “a person or group having authority to
make appointments to positions in the State civil service.” (§ 18524.)
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persons who have attained passing marks in the examination “shall be placed on
the [eligible or promotional] list in the order of final earned ratings,” subject to
modification for application of constitutional veterans’ preferences. (§ 18937.)
The civil service classifications affected by the MOU’s in this case are
subject to the Act’s so-called rule of three ranks, which requires certification of a
list to the appointing power with the names of those eligible employees who place
in the top three ranks of scores and who are willing to accept appointment under
the conditions of employment specified. (§ 19057.1; see Cal. Code Regs., tit. 2,
§ 254.)5 For purposes of ranking, scores are rounded to the nearest whole percent;
a rank consists of one or more eligible employees with the same whole percentage
score. (§ 19057.1.)
In making a hiring decision, the appointing power must select a candidate
from the eligible list, but need not select the one with the highest ranked score.
(See Cal. Code Regs., tit. 2, § 254.) This rule safeguards the merit principle by

5
Under the governing statute, the SPB may certify as eligible those
candidates with lower scores in order to have three ranks on the certified list.
(§ 19057.1.) Additionally, examinations may be conducted until at least three
names appear on the list. (Ibid.) Finally, a candidate in the top three ranks may
not challenge a department’s selection of another eligible candidate on the basis
that the person selected is less qualified. The grounds for a challenge are limited,
and include claims pertaining to improper withholding of a name from a certified
list, unlawful discrimination (see § 19700 et seq.), and appeals of examination
results or claims alleging violation of board regulation or policy. (See Cal. Code
Regs., tit. 2, § 53.1; see generally Cal. Code Regs., tit. 2, § 53.)
There is another rule, the rule of three names, which requires the SPB to
certify an eligible list naming the three persons who stand highest on the
promotional list for the class in which the position belongs and who have indicated
their willingness to accept appointment. (§ 19057.) That rule applies to other
classifications not at issue here.
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assuring that one of the better scoring candidates, if not the top scoring one, will
be chosen. (See Alexander, supra, 80 Cal.App.4th at p. 542.)
Finally, the Act imposes a mandatory probationary period for permanent
appointments from employment lists. (§ 19170 et seq.; Cal. Code Regs., tit. 2, §
322.) The probationary period gives the appointing power “the opportunity to
observe the conduct and capacity of the probationer, and if, in the opinion of that
power, the probationer is not fitted to discharge the duties of the position, then he
[or she] may be discharged by the summary method provided for in the Civil
Service Act before he [or she] acquires permanent civil service status.” (Wiles v.
State Personnel Board (1942) 19 Cal.2d 344, 347; see § 19173, subds. (a), (b).)
This serves “to supplement the work of the civil service examiners in passing on
the qualifications and eligibility of the probationer.” (Wiles v. State Personnel
Board, at p. 347; see Cal. Code Regs., tit. 2, § 250, subd. (c).)
Although the Legislature must at all times abide by the merit principle, it
retains “a ‘free hand’ to fashion ‘laws relating to personnel administration for the
best interests of the State.’ ” (Pacific Legal Foundation, supra, 29 Cal.3d at p.
184.) Moreover, “[n]othing in the Constitution requires that all civil service rules
apply to all public employees and nothing prohibits the Legislature from
experimenting to treat certain employees under different rules, provided the merit
principle is not infringed.” (Alexander, supra, 80 Cal.App.4th at p. 536.)
B. The Post and Bid Pilot Programs
As indicated in part A, ante, the process relating to permanent civil service
appointments and promotions generally involves three phases. The first phase,
pertaining to eligibility, involves administration of a competitive examination to a
group of candidates seeking permanent appointment or promotion to positions
within a classification. The examination results in a certified eligible list
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identifying those candidates with examination scores in the top three ranks who
have indicated their willingness to accept appointment under the conditions of
employment specified. In the second phase, the appointing power reviews the
candidates on the eligible list and selects the candidate it finds best suited to the
position it seeks to fill. The third phase requires the appointing power to evaluate
the selected candidate throughout a probationary period to determine whether
permanent appointment or promotion to the position is merited.
The post and bid pilot programs follow this general process for the
eligibility phase and the probationary phase, but mandate a significantly different
procedure for the hiring or selection phase, as described below.
The post and bid programs require appointing powers to post, in approved
locations, bid notices regarding available positions in specified clerical, technical,
and professional classifications. Eligible employees may bid for posted positions
by completing and submitting the appropriate bid forms.
An employee must meet several requirements to be eligible to bid. First,
the employee must have immediate list eligibility or be eligible for appointment
under the civil service rules and either have permanent full-time civil service
status, or have permanent intermittent civil service status and meet certain
specified criteria. Although each MOU is slightly different, an employee in a
nontransfer situation must score within the top three ranks on a competitive
examination in order to be eligible for a list appointment or promotion. Each
employee must not only meet certain minimum qualifications for the posted
position and possess the physical ability to perform the essential job functions, but
also must have demonstrated an overall satisfactory performance in his or her
current job. Finally, the employee must not be on probation or on an official
training and development assignment, and must not have had an adverse action
related to job performance in the 12 months preceding the bid process.
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Once the bidding process is closed, the post and bid programs generally
require the appointing power to hire or promote from among eligible bidders—
including those employees scoring in the top three ranks on a competitive
examination and meeting all other eligibility requirements—on the basis of
seniority.6 Specifically, the eligible bidder with the most seniority in state service
must be selected, regardless of the nature of the positions in which the seniority
was earned, the specific duties and responsibilities of the position to be filled, or
the relative qualifications of the competing eligible bidders.
Two of the MOU’s provide for a 30-day trial period during which
management or the selected employee may terminate the post and bid appointment
and the employee may be returned to the former position. All three MOU’s retain
the probationary period applicable under state civil service statutes and rules.
(§ 19170 et seq.; Cal. Code Regs., tit. 2, § 322.)
The MOU’s state they are “not intended to . . . contravene the spirit or
intent of the merit principle in State employment,” and that “[a]ny matters which
concern the application of the merit principle to State employees are exclusively
within the purview of those processes provided by Article VII of the
State Constitution or bylaws and rules enacted thereto.”
C. Analysis
We must decide whether the Legislature’s approval of the post and bid pilot
programs violates the merit principle.
Plaintiffs contend the merit principle applies throughout the appointment
and promotion process, including the hiring phase that follows the ranking of

6
Except for certain positions in the Employment Development Department,
the post and bid programs for unit 1 and unit 4 also specify that selection must be
based on the departmental geographic area.
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eligible candidates after a competitive examination. In plaintiffs’ view, an
appointing power’s ability to interview the candidates in the top three ranks and to
evaluate their comparative fitness to the specific needs and duties of posted
positions is a fundamental and indispensable component of the merit principle. By
imposing an absolute seniority-based preference during the hiring phase, plaintiffs
argue, the programs violate the constitutional mandate that permanent civil service
appointments and promotions be based solely on merit.7
Conversely, defendant asserts the programs do not violate the Constitution
because their seniority-based selection procedure occurs after administration of
competitive examinations and after adherence to the rule of three ranks. Amicus
curiae California Correctional Peace Officers’ Association adds that seniority is a
recognized merit factor that is properly considered. Finally, defendant contends
contractual trial periods and statutory probationary periods ensure the selection of
qualified employees.
Case law establishes that state employers generally may not make
permanent appointments or promotions in the absence or disregard of competitive
examinations and the ranking of examination takers. (E.g., Professional
Engineers, supra, 90 Cal.App.4th 678; Kidd v. State of California (1998) 62
Cal.App.4th 386 (Kidd).) But the issue whether the merit principle applies to the
hiring phase of the appointment and promotion process is one of first impression.

7
Plaintiffs represent they recognize and respect the laws and rules protecting
employees’ seniority in state civil service. They also support adequately
compensating civil service employees for their long-term, dedicated, and
competent performance. Plaintiffs’ only contention here is that, to adhere to the
merit principle, appointing powers cannot be required to “substitute” seniority in
the civil service for merit when selecting eligible candidates for permanent
appointments and promotions.
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In determining the constitutionality of the legislatively sanctioned post and
bid programs, “we are guided ‘by well settled rules of constitutional construction.
Unlike the federal Constitution, which is a grant of power to Congress, the
California Constitution is a limitation or restriction on the powers of the
Legislature. [Citations.] Two important consequences flow from this fact. First,
the entire law-making authority of the state, except the people’s right of initiative
and referendum, is vested in the Legislature, and that body may exercise any and
all legislative powers which are not expressly or by necessary implication denied
to it by the Constitution. . . . Secondly, all intendments favor the exercise of the
Legislature’s plenary authority: “If there is any doubt as to the Legislature’s
power to act in any given case, the doubt should be resolved in favor of the
Legislature’s action. . . .” ’ [Citations.] On the other hand, ‘we also must enforce
the provisions of our Constitution and “may not lightly disregard or blink at . . . a
clear constitutional mandate.” ’ [Citation.]” (County of Riverside v. Superior
Court (2003) 30 Cal.4th 278, 284-285.) Finally, challenges to the facial
constitutionality of legislative acts require a demonstration that the acts “inevitably
pose a present total and fatal conflict with applicable constitutional prohibitions.”
(Pacific Legal Foundation, supra, 29 Cal.3d at p. 181.)
As indicated, article VII of the California Constitution provides that
“permanent appointment and promotion shall be made under a general system
based on merit ascertained by competitive examination.” (Cal. Const., art. VII,
§ 1, subd. (b).) By its terms, the constitutional provision unmistakably commands
that all permanent appointments and promotions in the civil service be based on
merit, and that merit be determined on the basis of competition.
The history of the constitutional amendment adopting this provision
confirms this meaning. In explaining the provision to the voters who ultimately
approved it, the ballot materials stated: “The purpose of this constitutional
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amendment is to promote efficiency and economy in State government. The sole
aim of the act is to prohibit appointments and promotion in State service except on
the basis of merit, efficiency and fitness ascertained by competitive examination.”8
(Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Gen.
Elect. (Nov. 6, 1934), argument in favor of Prop. 7, p. 12.) In summing up the
provision, the materials stated: “[T]his constitutional amendment provides: (1)
Employment in the classified service based solely on merit and efficiency . . . .”
(Ibid., italics added.)
In Pacific Legal Foundation, supra, 29 Cal.3d 168, we explained that,
while article VII, section 1, subdivision (b) of the state Constitution refers to “a
general system based on merit,” the 1934 ballot arguments “make[] it quite plain
that the draftsmen of the provision intended only ‘to prohibit appointment and
promotion in State service except on the basis of merit,’ and did not intend to
engrave into the state Constitution every aspect of the then current civil service
system.” (Pacific Legal Foundation, at p. 184, fn. 7.) Consistent with Pacific
Legal Foundation, we find the full constitutional phrase, “a general system based
on merit ascertained by competitive examination” (Cal. Const., art. VII, § 1, subd.
(b)), refers to “ ‘the concept “under which public employees are recruited,
selected, and advanced under conditions of political neutrality, equal opportunity,
and competition on the basis of merit and competence.” ’ ” (Pacific Legal
Foundation, at p. 184, fn. 7.) By referencing this general concept, article VII

8
As enacted in 1934, the constitutional provision provided that “appointment
and promotion shall be made on the basis of merit, efficiency and fitness
ascertained by competitive examination.” (Cal. Const., former art. XXIV.)
Subsequent revisions of the 1934 provision merely deleted obsolete and
superfluous language and made no substantive changes in the provisions relevant
to this action. (See ante, fn. 3.)
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requires that appointment and promotion decisions, not just preappointment
eligibility determinations and other screening measures, be based on merit. (See
also Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters,
Gen. Elec. (Nov. 3, 1970), argument in favor of Prop. 14, p. 24 [describing
proposed initiative amendments as continuing “the requirement that permanent
appointment and promotion in the state civil service shall be based on merit and
competitive examinations” (italics added)].)
In sum, “[b]oth the constitutional provision and the ballot argument[s] in
favor thereof are remarkably straightforward: The Legislature . . . has a free hand
with regard to personnel administration except that with regard specifically to
appointment to service, merit and efficiency shall be the only considerations. The
merit principle is sacrosanct; however free the hand of the Legislature, neither that
hand nor the hand of any other branch or agency of government can manipulate
the merit principle to serve ends inconsistent with article VII of the state
Constitution.” (Kidd, supra, 62 Cal.App.4th at pp. 401-402, fn. omitted.)
Plaintiffs contend that seniority may not be “substituted” for merit at the
postexamination phase when appointing powers make their hiring decisions. To
the extent this contention suggests seniority is not at all reflective of merit, we
disagree and do not question that seniority may be an appropriate factor in
evaluating merit and efficiency. (Accord, Apuzzo v. County of Ulster
(N.Y.App.Div. 1983) 470 N.Y.S.2d 814, 815; Gaskill v. Mayor and Com’rs, etc.
(N.J.Super.Ct.App.Div. 1977) 373 A.2d 1019, 1020; Heminger v. Police Com’n of
the City of Fort Wayne (Ind.Ct.App. 1974) 314 N.E.2d 827, 832-833.) “Generally,
years of seniority indicate years of on-the-job experience.” (Communications
Workers of America v. State of California (1984) PERB Dec. No. S-CE-134-S [8
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PERC ¶ 15138, p. 737] (Communications Workers).)9 Indeed, California
regulations recognize that time spent on a job is job related when ordinarily
requiring employees to spend a specified amount of time in a job class to become
eligible for promotion to the next level of that class. (See Cal. Code Regs., tit. 2,
§ 212; Communications Workers, supra, PERB Dec. No. S-CE-134-S [8 PERC
¶ 15138, p. 737]; see also § 18950 et seq. [authorizing addition of career credits to
examination scores for promotions].)
Seniority in state service, however, may or may not reflect fitness for a
posted position. Much depends on whether a candidate’s current and previous
positions (or other background) provided the job-related knowledge, skills,
abilities, and experience necessary for efficient and successful performance in the
posted position. (See Lucchesi v. City of San Jose (1980) 104 Cal.App.3d 323,
329 [in invalidating a city ordinance that gave preference to city employees for
firefighter positions, court observed that a city employee with no experience in a
field related to the position sought is not more competent than a noncity employee
with 25 years’ experience in a related field].) More importantly here, greater
seniority does not necessarily equate to greater ability, efficiency, or productivity.
Thus, while consideration of seniority may be appropriate as part of a general
merit-based system of appointments and promotions, depriving appointing powers

9
Communications Workers was a decision by an administrative law judge
(ALJ) finding that a collective bargaining proposal for a seniority-based selection
process did not conflict with the SPB’s exclusive statutory jurisdiction over the
area of promotions. In doing so, the ALJ rejected the SPB’s argument it was
constitutionally forbidden from considering seniority in its promotional scheme
because seniority is neither job related nor merit related. While we agree with the
decision’s rejection of that position, we note it did so in the limited context of a
claim the state employer could not negotiate over issues that were not job related
or merit related.
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of the ability to interview eligible candidates and base their hiring decisions on a
broader range of criteria bearing on fitness and efficiency “inevitably pose[s] a
present total and fatal conflict” (Pacific Legal Foundation, supra, 29 Cal.3d at p.
181) with the constitutional command that “appointments and promotions in state
service be made solely on the basis of merit” (id. at p. 184).
We acknowledge that the civil service statutes providing for competitive
examinations and the rule of three ranks afford a “bulwark against favoritism.”
(Professional Engineers, supra, 90 Cal.App.4th at p. 693.) But the statutes readily
indicate that the competitive examinations that result in eligible lists typically test
and rank only the general fitness and minimum qualifications required for an
entire class of positions. (See §§ 18523, 18532, 18900, 18930.) These classes
may encompass many different positions that vary somewhat in their duties and
responsibilities, particularly if numerous agencies in the state use them. Thus,
while such examinations may effectively prevent the selection of incompetent
political favorites, they do not test for all the specific knowledge, skills, abilities,
and other personal characteristics and attributes that might reflect an eligible
candidate’s superior fitness for a particular position within a class. (See ibid.;
Professional Engineers, supra, 90 Cal.App.4th at p. 716 (dis. opn. of Scotland, J.)
[“[e]ligible lists are established for classes of position, but are not position-
specific”].)
For these reasons, we look to the purpose of a competitive examination,
which “was (and is) to provide accurate information to the hiring authority about
the relative merits of the candidates, but not unfairly (or unconstitutionally)
circumscribe the appointing power’s ability to make the actual selection.”
(Professional Engineers, supra, 90 Cal.App.4th at p. 702.) Mindful of that
purpose and the constitutional principle the examination is designed to serve, we
conclude the Legislature may not approve collective bargaining agreements
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requiring that state employers make their permanent appointments and promotions
based solely on the seniority status of employees meeting all eligibility and
ranking requirements, without allowance for comparative merit evaluations of
those employees.
Our conclusion is fully consistent with the manner in which permanent
appointments and promotions are handled outside the post and bid process.
Appointing powers ordinarily have authority, consistent with their obligations
under the merit principle, to consider all job-related qualifications when hiring an
eligible candidate for a specific position. (See Cal. Code Regs., tit. 2, § 250, subd.
(a).)10 Significantly, appointing powers are not compelled to select the candidate
who is ranked highest on an eligible list, but may evaluate other merit-based
criteria in addition to list ranking. As courts have aptly observed, “ ‘[i]t would be
perverse to sanctify rank ordering of exam scores in a quest to maximize
competitiveness if, as a result, other considerations relevant to merit and fitness
are discounted or swept aside.’ ” (Professional Engineers, supra, 90 Cal.App.4th
at p. 696, quoting McGowan v. Burstein (1988) 71 N.Y.2d 729, 734.)
Even though the post and bid programs preserve the rule of three ranks,
their seniority-based selection procedures leave no room at the postexamination

10
This regulation, which became operative on May 17, 2004, affirms that
appointments to civil service positions “shall be made on the basis of merit and
fitness, defined exclusively as the consideration of each individual’s job-related
qualifications for a position, including his/her knowledge, skills, abilities,
experience, education, training, physical and mental fitness, and any other
personal characteristics relative to job requirements, as determined by candidate
performance in selection procedures, including, but not limited to, hiring
interviews, reference checks, background checks, and/or any other procedures,
which assess job-related qualifications and are designed and administered to select
those individuals who best meet the selection need.” (Cal. Code Regs., tit. 2,
§ 250, subd. (a).)
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hiring phase for comparatively evaluating employees who meet the threshold
requirements for eligibility and ranking. By dictating an absolute seniority
preference in hiring, and foreclosing appointing powers from interviewing eligible
candidates and considering a broader and more meaningful range of merit-based
criteria as appropriate to determine the candidate most qualified for a posted
position, the programs undermine the constitutional mandate that appointments
and promotions be based on merit.
We are aware that, before the Legislature ratified the MOU’s, the
Legislative Counsel’s Office issued an opinion concluding they did not violate the
merit principle if supplemented by an addendum reflecting the parties’ agreement
to apply the seniority selection procedure only where a competitive examination
had been held or in cases of transfer where an examination was not required. But
Legislative Counsel’s opinions are only as persuasive as their reasoning (see
Grupe Development Co. v. Superior Court (1993) 4 Cal.4th 911, 922), and we do
not find the opinion offered here persuasive for all the reasons identified above.
Defendant argues the post and bid programs are constitutionally valid under
the following primary rationale: The Legislature has the authority and ability
under the state Constitution to pass personnel administration laws in the state’s
best interests and has accomplished this by enacting the current civil service
statutes. As relevant here, these statutes require certification of eligible lists
naming those candidates who represent the three highest ranks and are willing to
accept appointment to open positions, and they require the appointing powers to
make their selections from these lists. (§ 19057.1.) Subject to these restrictions
and certain statutorily prohibited criteria, the civil service laws generally give the
appointing powers flexibility to exercise hiring discretion. Because appointing
powers may select any candidate in the top three ranks (ibid.) and are subject to no
hearing or review process to determine if their final selections are based solely on
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merit (see Cal. Code Regs., tit. 2, § 53), their actual hiring decisions are
discretionary and need not be based on an additional merit review. In sum,
because hiring decisions are discretionary, the Legislature may limit that
discretion by adopting a conclusive seniority-based preference for selection among
eligible candidates. We are not convinced.
In adopting the constitutional merit principle, California voters made clear
their intent that permanent civil service appointments and promotions be made
solely on the basis of merit. No matter what discretion the Legislature has
purported to give or withdraw from appointing powers, it does not have a free
hand to approve MOU’s or enact statutes that flout this mandate. Defendant offers
no authority suggesting the merit principle does not or cannot extend to the hiring
phase of the appointment process on the ground there is no legislatively sanctioned
administrative process to review merit challenges. Whether or not an
administrative process is in place, the Legislature cannot validly approve programs
that operate in contravention of the Constitution.
Defendant next asserts the post and bid programs impose a number of
eligibility requirements, in addition to list eligibility, that adequately protect the
merit principle. For instance, the employee must have demonstrated an overall
satisfactory performance in the current job and have received no adverse action
related to job performance in the preceding 12 months. But these are simply
threshold requirements that any employee must meet to be eligible to bid.
Satisfaction of these minimum requirements does not serve to distinguish between
bid-eligible candidates.
Indeed, even if the foregoing criteria could be viewed as providing
independently relevant information on a candidate’s overall competence to
perform in a posted position, their value is minimized because the post and bid
programs obviate any opportunity or need for their qualitative assessment. For
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example, it would make no difference if the most senior eligible candidate had a
number of adverse actions that were more than a year old, while an eligible
candidate with three months less seniority had none at all. Neither would it matter
that a less senior candidate had developed job-related skills that were far more
relevant to a posted position than the skills the most senior candidate acquired, nor
that a less senior candidate was exceptionally productive and skilled, while the
most senior candidate was only satisfactory in meeting job expectations. Under
any of these circumstances, the post and bid programs require selection of the
most senior eligible candidate, in disregard of these merit-based job-related
considerations.
Defendant relies on a passage in Alexander, supra, 80 Cal.App.4th 526,
542, stating “the merit principle does not require that the most qualified or best
candidate be chosen.” Fairly read, however, that passage merely recognizes the
Constitution does not require the appointment of the most qualified or best
candidate, as determined by rankings on an eligible list. Indeed, the passage
supports our conclusion that the merit principle is served when an appointing
power relies both on ranking and other merit considerations to select the eligible
candidate it finds best suited for a position. In any case, nothing in Alexander
suggests that merit considerations have no constitutional relevance in the hiring
process once competitive examinations have been administered and the three
highest ranks ascertained.
Finally, defendant argues the post and bid programs protect hiring
discretion and ensure selection of qualified employees by allowing termination for
unsatisfactory performance during either the trial period provided in the MOU’s or
the probationary period prescribed by statute. But those periods are operative only
after state resources have been needlessly consumed in selecting and training the
unfit employee, and do nothing to mitigate the further time and resources that
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presumably will be spent finding and training a replacement. Conversely,
interviewing eligible candidates and making evaluations as necessary to assess
each candidate’s comparative fitness for a posted position can often avoid the
waste of state resources by ensuring that a careful and thoroughly considered
hiring decision is made in the first instance. Thus, eliminating the ability of
appointing powers to make such informed decisions at the outset tends to frustrate
rather than promote the goal of the merit principle and the purpose of the civil
service statutes to achieve efficiency and economy in state government.
CONCLUSION AND DISPOSITION
While collective bargaining may be used to negotiate many terms and
conditions of employment, it cannot be used to circumvent the constitutional
mandate that permanent appointment and promotion in the civil service be based
solely on merit. By designating seniority as the sole consideration for the
permanent appointment and promotion of eligible employees, the legislatively
approved post and bid provisions impermissibly conflict with this fundamental
mandate.
We reverse the judgment of the Court of Appeal, and remand the matter to
that court for further proceedings consistent with the views expressed herein.
BAXTER, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion California State Personnel Bd. v. California State Employees Assn.
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 114 Cal.App.4th 11
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S122058
Date Filed: July 28, 2005
__________________________________________________________________________________

Court:

Superior
County: Sacramento
Judge: Lloyd Connelly

__________________________________________________________________________________

Attorneys for Appellant:

Anne M. Giese and Robin O’Sullivan for Defendant and Appellant.

Howard L. Schwartz, Linda D. Buzzini, Patricia M. Keegan and Marguerite D. Seabourne for Department
of Personnel Administration as Amicus Curiae on behalf of Defendant and Appellant.

Carroll, Burdick & McDonough, Ronald Yank, Gregg McLean Adam; and Benjamin C. Sybesma for
California Correctional Peace Officers’ Association as Amicus Curiae on behalf of Defendant and
Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Karen J. Brandt, Elise S. Rose and Dorothy Bacskai Egel for Plaintiffs and Respondents.

1

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Anne M. Giese
1108 “O” Street, Suite 327
Sacramento, CA 95814
(916) 326-4208

Karen J. Brandt
California State Personnel Board
801 Capitol Mall – MS-53
Sacramento, CA 95814
(916) 653-1403

2

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Opinion Information

Date:	Docket Number:
Thu, 07/28/2005	S122058

Disposition
Jul 28 2005	Opinion: Reversed

Dockets
Jan 16 2004	Petition for review filed   in Sacramento by counsel for respondent (California State Personnel Board).
Jan 22 2004	Received Court of Appeal record   1 doghouse
Jan 30 2004	Record requested   remainder of c/a record (overnite)
Feb 3 2004	Received Court of Appeal record   two doghouses
Feb 5 2004	Answer to petition for review filed   by counsel for aplt
Feb 13 2004	Reply to answer to petition filed   by resp
Feb 24 2004	Petition for Review Granted (civil case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Mar 2 2004	Certification of interested entities or persons filed   by aplt
Mar 2 2004	Certification of interested entities or persons filed   by resp
Mar 25 2004	Opening brief on the merits filed   by resp Cal State Personnel Board
Mar 25 2004	Request for judicial notice filed (granted case)   by resp Cal State Personnel Board
Apr 23 2004	Answer brief on the merits filed   by aplt CSEA, Local 1000
Apr 23 2004	Request for judicial notice filed (granted case)   by aplt Cal. State Emp. Assn.
May 3 2004	Opposition filed   by resp Cal State Personnel Board to aplt's request for judicial notice
May 13 2004	Reply brief filed (case fully briefed)   by resps Ca. State Personnel Board, et al.
May 19 2004	Request for judicial notice filed (granted case)   by resp Cal State Pers. Board
Jun 21 2004	Received application to file Amicus Curiae Brief   and brief of California Correctional Peace Officers' Association in support of appellant (CSEA)
Jun 23 2004	Permission to file amicus curiae brief granted   The application of California Correctional Peace Officers' Association for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jun 23 2004	Amicus curiae brief filed   California Correctional Peace Officers' Association in support of appellant
Jul 13 2004	Received:   resp Cal State Personnel Board's "update" to motion for judicial notice.
Jul 13 2004	Response to amicus curiae brief filed   by resp Cal State Personnel Bd. to A/C brief of Cal. Corr. Police Off.
May 3 2005	Case ordered on calendar   5/26/05, 9am, S.F.
May 18 2005	Request for judicial notice granted   Plaintiffs' motion for judicial notice, filed March 25, 2004 is granted in part and denied in part, as follows: The motion is granted as to attachments B, C, and F. The motion is denied as to attachments A, D, and E. Defendant's request for judicial notice, filed April 23, 2004, is denied. Plaintiffs' second motion for judicial notice, filed May 19, 2004, is denied.
May 26 2005	Cause argued and submitted
Jul 28 2005	Opinion filed: Judgment reversed   and remanded to the Court of Appeal for further proceedings consistent with the views expressed in the opinion. Majority opinion by Baxter, J. -----------------------joined by George, C.J., Kennard, Werdegar, Chin, Moreno JJ.
Sep 1 2005	Remittitur issued (civil case)
Sep 26 2005	Note:   case record will be transmitted to the Court of Appeal

Briefs
Mar 25 2004	Opening brief on the merits filed
Apr 23 2004	Answer brief on the merits filed
May 13 2004	Reply brief filed (case fully briefed)
Jun 23 2004	Amicus curiae brief filed
Jul 13 2004	Response to amicus curiae brief filed

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