Stanford Law School - Robert Crown Law Library

Filed 12/1/05
IN THE SUPREME COURT OF CALIFORNIA

STATE PERSONNEL BOARD,
Plaintiff and Respondent,
v.
DEPARTMENT OF PERSONNEL
ADMINISTRATION et al.,
Defendants and Appellants.
S119498

)
ASSOCIATION OF CALIFORNIA STATE )
ATTORNEYS AND ADMINISTRATIVE )
LAW JUDGES et al.,
) Ct.App. 3 C032633, C034943,
Plaintiffs and Respondents
C040263
v.
DEPARTMENT OF PERSONNEL
ADMINISTRATION et al.,
Sacramento
County
Defendants and Appellants.
Super. Ct. Nos. 01CS00109,

99CS00260, 98CS03314
STATE PERSONNEL BOARD,
Plaintiff and Appellant,
v.
DEPARTMENT OF PERSONNEL
ADMINISTRATION et al.,
Defendants and Respondents. )

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The memoranda of understanding (MOU’s) of four state employee
bargaining units1 allow covered employees to challenge disciplinary actions either
by seeking review before the State Personnel Board or by pursuing an alternative
grievance/arbitration procedure that bypasses the State Personnel Board. The
Legislature ratified the grievance/arbitration procedures set forth in the four
MOU’s by enacting implementing legislation. (See Gov. Code, § 18670, subds.
(c), (d) & (e); further undesignated statutory references are to the Government
Code.)
Does this bypass of the State Personnel Board violate article VII, section 3
of the California Constitution, which provides that the State Personnel Board
“shall . . . review disciplinary actions” taken against state civil service employees?
(Cal. Const., art. VII, § 3, subd. (a).) We conclude that it does.
I.
A. MOU’s and Implementing Legislation

1. Unit 8 (Firefighters)
In 1998, the Department of Personnel Administration, which represents the
Governor of California in labor negations with state employee unions, entered into
an MOU with the Department of Forestry Firefighters (Firefighters’ Union), the
bargaining agent for Unit 8. That MOU (hereafter also referred to as the original
Unit 8 MOU) sets forth a procedure by which a firefighter can challenge a
disciplinary action. “Discipline” includes punitive dismissals, demotions,
suspensions and pay reductions. Discipline can be “major” or “minor.” Major

1
The four bargaining units whose MOU’s are before us are Units 8, 11, 12
and 13. Unit 8 is comprised of firefighters, Unit 11 of engineering and scientific
technicians, Unit 12 of craft and maintenance workers, and Unit 13 of stationary
engineers.
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discipline is a suspension of more than five days or a pay reduction of more than 5
percent. Anything less than that is minor discipline.
The original Unit 8 MOU allows a firefighter to challenge a major
disciplinary action in one of two ways: either by seeking review before the State
Personnel Board, or by filing a grievance with a “Board of Adjustment” comprised
of four members (two selected by the union and two by the employer). A minor
disciplinary action can be challenged only through the Board of Adjustment
grievance procedure; that board’s decision is final and binding, subject only to
confirmation as an arbitration award. (See Code Civ. Proc., § 1280 et seq.) If the
Board of Adjustment fails to reach a decision, the disciplinary action would be
sustained unless the employee or the Firefighters’ Union sought arbitration. The
arbitrator’s decision would likewise be final and binding, and subject to judicial
review only on the grounds set out in Code of Civil Procedure section 1286.2.
These include “corruption, fraud, or other undue means” in procuring the award,
and corruption or prejudicial misconduct by an arbitrator. (Id., subd. (a)(1).)
To implement those provisions of the original Unit 8 MOU, the Legislature
in 1998 added a new subdivision to section 18670. That statute in subdivision (a)
provides for the State Personnel Board to “hold hearings and make investigations
concerning all [civil service] matters.” (§ 18670, subd. (a), italics added.) The
1998 amendment added subdivision (d), which applies “only to state employees in
State Bargaining Unit 8”; it exempts Unit 8 employees from either “investigation
or hearing” by the State Personnel Board. (§ 18670, subd. (d), as amended by
Stats. 1998, ch. 1024, § 7; subsequently amended by Stats. 1999, ch. 446, § 6 and
now designated subd. (c).)
In 2000, as the result of a lawsuit brought by the Association of California
Attorneys and Administrative Law Judges (State Attorneys and ALJ’s), the trial
court issued a writ of mandate prohibiting the Unit 8 MOU’s alternative
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grievance/arbitration procedure allowing disciplined firefighters to bypass review
by the State Personnel Board in favor of review before a different agency. In
response, the Department of Personnel Administration and the Firefighters’ Union
amended the original Unit 8 MOU. The amended Unit 8 MOU, which we discuss
below, states that the “modification shall be temporary” and that the MOU will
revert to the original language “if the Court of Appeal reverses the Superior Court
judgment.”
The amended Unit 8 MOU gives firefighters subject to minor discipline the
choice to seek review before the State Personnel Board or to bypass such review
and instead pursue the grievance/arbitration process. (Under the original MOU, a
firefighter wishing to challenge a minor discipline could do so only through the
grievance/arbitration procedure.) In addition, the amended Unit 8 MOU requires
an arbitrator’s decision to be submitted to the State Personnel Board to ensure that
the decision does not conflict with “merit principles.”
2. Unit 11 (Engineering and Scientific Technicians)
Effective July 1, 1999, the Department of Personnel Administration and the
California State Employees Association (CSEA), as bargaining agent, entered into
an MOU governing employees in Unit 11 (Unit 11 MOU), consisting of
engineering and scientific technicians. Relevant here are the MOU provisions
pertaining to mandatory substance abuse testing for those employees operating
commercial vehicles. Employees disciplined or dismissed after receiving a positive
test result during probation may challenge the action through a grievance and
arbitration process, or if they choose, may seek review before the State Personnel
Board.
To implement the Unit 11 MOU, the Legislature in 1999 added subdivision
(d) to section 18670. (Stats. 1999, ch. 630, § 2.) Then in 2000 the Legislature
amended section 18670 by adding another new subdivision (d) (Stats. 2000, ch.
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402, § 5.) In relevant part, this new subdivision (d) states that covered employees
who have been disciplined for “positive drug test results” and who have elected to
challenge the discipline through the grievance and arbitration procedure “are not
subject to either a[n] . . . investigation or a hearing” by the State Personnel Board.
(See also § 19175, subds. (f) & (g); Code Civ. Proc. § 1094.5, subd. (k).)


3. Unit 12 (Craft and Maintenance Workers) and Unit 13
(Stationary Engineers)
The MOU’s between the Department of Personnel Administration and the
Operating Engineers (the bargaining agent for employees in Units 12 and 13) date
from September 21, 1999. As the exclusive means for resolving minor
disciplinary actions, the MOU’s for Units 12 and 13 (Unit 12 MOU, Unit 13
MOU) provide a grievance procedure before a four-member “Board of
Adjustment,” consisting of two members chosen by the Department of Personnel
Administration and two by the union. For challenges to major disciplinary
actions,2 employees can elect between review before the State Personnel Board or
a grievance filed with the Board of Adjustment. The latter’s decision is subject to
arbitration, which, except for the grounds set out in Code of Civil Procedure
section 1286.2 (see p. 3, ante), is final and binding.
To implement the MOU’s for Units 12 and 13, the Legislature in 1999
amended section 18670 by adding subdivision (e), providing that these MOU’s
would control over conflicting provisions of section 18670 “without further
legislative action.”

2
Major discipline under the Unit 12 MOU consists of a suspension for more
than three working days, a temporary demotion, or a reduction in pay of five
percent for more than three months. The Unit 13 MOU defines major discipline as
a “dismissal or suspension of more than three working days.”
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B. The Lawsuits
The MOU’s discussed above and the statutory provisions implementing
them were challenged in three separate lawsuits. The first lawsuit was filed by the
State Personnel Board on December 18, 1998, against the Department of
Personnel Administration and the Firefighters’ Union; it sought a writ of mandate
to prohibit enforcement of the disciplinary review provisions in the original Unit 8
MOU pertaining to firefighters. The trial court dismissed the case, ruling that the
State Personnel Board lacked standing. The State Personnel Board appealed.
The second lawsuit was brought on February 8, 1999, by the State
Attorneys and ALJ’s and a taxpayer against the Department of Personnel
Administration and the Firefighters’ Union. Like the earlier lawsuit brought by
the State Personnel Board, this second suit challenged the original Unit 8 MOU
covering firefighters and sought the same relief.
The third lawsuit, by the State Personnel Board against the Department of
Personnel Administration and two employee unions (the CSEA, as bargaining
agent for Unit 11, and the Operating Engineers, as bargaining agent for Units 12
and 13), was filed on January 25, 2001 and challenged the disciplinary review
provisions in the MOU’s governing Units 11, 12, and 13.
In the second and third lawsuits, the trial court issued a peremptory writ of
mandate prohibiting enforcement of the disciplinary review provisions allowing
bypass of review by the State Personnel Board in favor of filing a grievance with a
four-member Board of Adjustment whose decision would be subject to arbitration.
The Department of Personnel Administration and the employee unions appealed.
The Court of Appeal consolidated the three appeals. Disagreeing with the
trial court in the first lawsuit, the Court of Appeal concluded the State Personnel
Board had standing to challenge the MOU’s and the implementing legislation. It
also held that in allowing employees to challenge a disciplinary action through a
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grievance/arbitration process instead of seeking review before the State Personnel
Board, the MOU’s (including the amended Unit 8 MOU governing firefighters)
and the implementing legislation violated article VII, section 3, subdivision (a) of
the California Constitution by infringing upon the State Personnel Board’s
authority to “review disciplinary actions” taken against state civil service
employees. We granted review of this constitutional issue, which was raised in
petitions by the Department of Personnel Administration and two of the affected
public employee unions (the Firefighters’ Union, which represents Unit 8; and the
Operating Engineers, which represents Units 12 and 13).
II.
Before addressing the issue of whether the MOU’s for Units 8, 11, 12 and
13 and the implementing legislation violate article VII of the state Constitution,
we give a brief overview of the origins of the State Personnel Board and the state
civil service system of which it is a part.

A. State Constitutional Provisions
In tracing the history of the State Personnel Board, we find helpful our
decision in Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168 (Pacific
Legal Foundation). As we there explained, the California Legislature in 1913
established this state’s first civil service system “to combat the ‘spoils system’ of
political patronage in state employment.” (Id. at pp. 181-182, citing Stats. 1913,
ch. 590, p. 1035.) By the early 1930’s, that system was “failing in its primary
task” because of “numerous politically motivated appointments” and the
exemption of most state employees from civil service. (Pacific Legal Foundation,
supra, at p. 182, citing King, Deliver Us from Evil: A Public History of
California’s Civil Service System (1979) p. 26.) In 1934, the voters of California
passed an initiative measure that added article XXIV to the state Constitution,
revising the civil service system and creating the State Personnel Board to oversee
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that system. The ballot argument described the purpose of the initiative measure
as promoting “efficiency and economy in State government,” to be achieved by
prohibiting “appointments and promotion in State service except on the basis of
merit, efficiency and fitness ascertained by competitive examination.” (Pacific
Legal Foundation, supra, at p. 183, fn. 6, quoting Ballot Pamp., Proposed
Amends. to Cal. Const. with arguments to voters, Gen. Elec. (Nov. 6, 1934),
argument in favor of Prop. 7, p. 12 (Ballot Pamphlet, 1934 General Election).)
Thus, the 1934 amendment to the state Constitution established “the principle that
appointments and promotions in state service be made solely on the basis of
merit.” (Pacific Legal Foundation, supra, at pp. 183-184.) This merit system was
to be administered by a “nonpartisan Personnel Board.” (Id. at p. 184.)
Thirty-six
years
later,
at the 1970 general election, the voters of California
revised article XXIV, based on changes that the California Constitution Revision
Commission proposed. (Pacific Legal Foundation, supra, 29 Cal.3d at p. 184, fn.
8, citing Ballot Pamp., Proposed Amends. to Cal. Const., Gen. Elec. (Nov. 3,
1970) pp. 23-24.) The 1970 revision “made no substantive changes . . . and
merely deleted obsolete and superfluous language . . . .” (Ibid.)
Thereafter, at the June 1976 election, “article XXIV was repealed but its
provisions were adopted [by the voters] ‘verbatim’ as [present] article VII.”
(Pacific Legal Foundation, supra, 29 Cal.3d at p. 184, fn. 8, citing Ballot Pamp.,
Proposed Amends. to Cal. Const. with arguments to voters, Prim. Elec. (June 8,
1976) pp. 58-59.) Article VII is pertinent to the issue we consider here.
California Constitution article VII provides in section 1, subdivision (a),
that “every officer and employee of the State” is in the state civil service system,
unless otherwise exempted by the state Constitution. Subdivision (b) of section 1
states that civil service employees are appointed and promoted “based on merit,”
which is to be “ascertained by competitive examination.”
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Section 2 of California Constitution article VII provides for the state civil
service system to be administered by the State Personnel Board, which consists of
five members “appointed by the Governor and approved by the Senate.” (Cal.
Const., art. VII, § 2, subd. (a).) Section 3, subdivision (a) of article VII describes
the board’s duties in these words: “The board shall enforce the civil service
statutes and, by majority vote of all its members, shall prescribe probationary
periods and classifications, adopt other rules authorized by statute, and review
disciplinary actions.” (Ibid., italics added.)
B. Disciplinary Review by the State Personnel Board
The legislative scheme governing State Personnel Board review of
disciplinary actions appears in the Government Code and is described in this
court’s 1975 decision in Skelly v. State Personnel Board (1975) 15 Cal.3d 194.
Below we quote relevant portions of that decision. (Bracketed material reflects
statutory changes made after Skelly.)
“Under section 19574 . . . the appointing power must serve upon the
employee and file with the Board a written notice specifying: (1) the nature of the
punishment, (2) its effective date, (3) the causes therefor, (4) [a statement advising
the employee of the right to answer the charges], and (5) the employee’s right to
appeal. (§ 19574.)
“Except in cases involving minor disciplinary matters, the employee has a
right to an evidentiary hearing to challenge the action taken against him. To
obtain such a hearing, the employee must file with the Board a written answer to
the notice of punitive action . . . . The answer is deemed to constitute a denial of
all allegations contained in the notice which are not expressly admitted as well as a
request for a hearing or investigation. (§ 19575; [citation].) Failure to file an
answer within the specified time period results in the punitive action becoming
final. (§ 19575.)
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“In cases where the affected employee files an answer within the prescribed
period, the Board, or its authorized representative, must hold a hearing within a
reasonable time. (§ 19578; [citation].) As a general rule, the case is referred to
the Board’s hearing officer who conducts a hearing and prepares a proposed
decision which may be adopted, modified or rejected by the Board. (§ 19582.)
. . . If the Board determines that the cause or causes for which the employee was
disciplined were insufficient or not sustained by the employee’s acts or omissions,
or that the employee was justified in engaging in the conduct which formed the
basis of the charges against him, it may modify or revoke the punitive action . . . .
(§ 19583.) . . .
“In the case of an adverse decision by the Board, [either party] may petition
. . . for a rehearing. (§ 19586.) As an alternative or in addition to the rehearing
procedure, [either party] may seek review of the Board’s action by means of a
petition for writ of administrative mandamus filed in the superior court. (§ 19588;
Boren v. State Personnel Board (1951) 37 Cal.2d 634, 637.)” (Skelly, supra, 15
Cal.3d at pp. 202-205, fns. omitted.)
Because the State Personnel Board derives its adjudicatory authority from
the state Constitution rather than from a legislative enactment, a superior court
considering a petition for administrative mandate must defer to the Board’s factual
findings if they are supported by substantial evidence. (Skelly, supra, 15 Cal.3d at
p. 217, fn. 31.)
C. Review of Employee Discipline Under the MOU’s
As noted at the outset, the MOU’s at issue here allow the state employees
in Units 8, 11, 12 and 13 to challenge disciplinary actions either before the State
Personnel Board or by filing a grievance before a four-member Board of
Adjustment. Employees in Units 11, 12 and 13 who are dissatisfied with a Board
of Adjustment decision can challenge that decision through arbitration. (Unit 8
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employees can pursue arbitration only if the Board of Adjustment fails to reach a
decision.) Have these MOU’s, as the trial courts and the Court of Appeal
concluded, altered review of state civil service disciplinary actions in such a way
as to violate section 3, subdivision (a) of article VII of the state Constitution
providing that the State Personnel Board “shall . . . review disciplinary actions”?
We address that question below. For simplicity’s sake, we will refer to plaintiffs
collectively as “the State Personnel Board,” and we will refer to the employee
unions and the Department of Personnel Administration collectively as
“defendants.”
III.
In deciding whether the MOU’s and their implementing legislation violate
the state Constitution, we bear in mind the following: “ ‘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.
[Citations.] In other words, “we do not look to the Constitution to determine
whether the legislature is authorized to do an act, but only to see if it is
prohibited.” [Citation.] [¶] 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. Such restrictions and limitations [imposed by the
Constitution] are to be construed strictly, and are not to be extended to include
matters not covered by the language used.” ’ (Methodist Hosp. of Sacramento v.
Saylor (1971) 5 Cal.3d 685, 691; accord, Pacific Legal Foundation v. Brown
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[supra,] 29 Cal.3d 168, 180.) 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.” ’ ” (County of Riverside v. Superior Court (2003)
30 Cal.4th 278, 284-285.)
The constitutional provision at issue here says that the State Personnel
Board “shall enforce the civil service statutes and, by majority vote of all its
members, shall prescribe probationary periods and classifications, adopt other
rules authorized by statute, and review disciplinary actions.” (Cal. Const., art.
VII, § 3, subd. (a), italics added.) Does the italicized phrase preclude the
Legislature from authorizing some entity other than the State Personnel Board (for
instance, the Boards of Adjustment described in the four MOU’s) to review
disciplinary actions taken against state civil service employees? As we explain
below, we conclude that it does.
Defendants insist that the language of section 3, subdivision (a) of article
VII of the state Constitution stating that the State Personnel Board “shall” review
disciplinary actions is permissive, which according to defendants simply allows
the Board to review disciplinary actions but does not require all disciplinary
review to be before the Board. Thus, defendants argue that, in permitting
disciplined state employees to bypass review before the State Personnel Board in
favor of pursuing a grievance/arbitration procedure outside that Board, the MOU’s
and the implementing legislation do not conflict with the state constitutional
provision at issue. In support, defendants point to our decisions in Pacific Legal
Foundation, supra, 29 Cal.3d 168, and in State Personnel Board v. Fair
Employment and Housing Commission (1985) 39 Cal.3d 422 (Fair Employment
and Housing). Those cases are distinguishable, however. In both, the
administrative agency had a specialized function that supplemented rather than
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supplanted the central adjudicative function of the State Personnel Board, as
discussed below.
In
Pacific Legal Foundation, this court rejected a facial challenge to the
State Employer-Employee Relations Act (SEERA), enacted by the Legislature to
provide for collective bargaining to state civil service employees. We also
rejected a facial challenge to the SEERA’s statutory provisions allowing the
Public Employee Relations Board (PERB) to investigate and devise remedies for
unfair labor practices. (Pacific Legal Foundation, supra, 29 Cal.3d at p. 197, fn.
19.) We saw no conflict with the language in section 3, subdivision (a) of article
VII of the state Constitution vesting jurisdiction in the State Personnel Board to
“review disciplinary actions.” (Pacific Legal Foundation, supra, 29 Cal.3d at
p. 196.) We explained that the PERB’s authority over unfair labor practices did
not overlap with the State Personnel Board’s jurisdiction over review of
disciplinary actions because the State Personnel Board and the PERB were created
to serve “different, but not inconsistent, public purpose[s].” (Id. at p. 197.) We
noted that the State Personnel Board’s constitutional grant of authority was to
review disciplinary actions against civil service employees whereas the PERB’s
legislatively created function was “a somewhat more specialized and more focused
task: to protect both employees and the state employer from violations of the
organizational and collective bargaining rights” secured under the SEERA. (Id. at
p. 198.)
In
Fair Employment and Housing, supra, 39 Cal.3d 422, three applicants
rejected for state civil service employment asserted that their rejections constituted
physical disability discrimination in violation of the Fair Employment and
Housing Act (§ 12900 et seq.) (FEHA). At the request of the State Personnel
Board, the trial court enjoined enforcement of the FEHA in matters involving the
state civil service, concluding that it conflicted with the Board’s exclusive
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jurisdiction over state civil service employment. (Fair Employment and Housing,
supra, at p. 427.) This court disagreed, holding that the merit principle governing
state civil service was actually reinforced, rather than hindered, by enforcing the
FEHA, which “guarantees that non-merit factors such as race, sex, [and] physical
handicap” would play no role in appointing state civil service employees. (Fair
Employment and Housing, supra, at p. 439.)
In
both
Pacific Legal Foundation, supra, 29 Cal.3d 168, and Fair
Employment and Housing, supra, 39 Cal.3d 422, the Legislature’s grant of certain
functions to an administrative agency was consistent with advancing the merit
principle embodied in article VII of our state Constitution, and in neither case did
the statutory scheme undermine or compromise the State Personnel Board’s
jurisdiction to “review disciplinary actions” (id., § 3, subd. (a)) against state civil
service employees.
We now turn to California Correctional Peace Officers Association v. State
Personnel Bd. (1995) 10 Cal.4th 1133, another case relied on by defendants.
There we considered section 18671.1, which requires the State Personnel Board to
render a decision on a disciplinary matter either within six months of the
employee’s filing of a petition for review or within 90 days after the Board takes
the case under submission. The statute also provides that, if the Board does not
meet these statutory deadlines, the employee may seek de novo review in the
superior court. We held that in providing for de novo review in the superior court,
the Legislature did not violate section 3, subdivision (a) of article VII in our state
Constitution that the State Personnel Board “shall . . . review disciplinary actions.”
(California Correctional Peace Officers Association, supra, at p. 1152.) De novo
review in the superior court would be allowed only after a failure of the State
Personnel Board to comply with the statutory deadlines. In contrast to the
situation here, the State Personnel Board was not in any way deprived of the
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constitutional authority to review disciplinary actions against state civil service
employees.
Defendants point to a comment in California Correctional Peace Officers
Association v. State Personnel Bd., supra, 10 Cal.4th 1133, that section 3,
subdivision (a) of article VII does not “limit the Legislature’s power to establish
civil service procedures,” but rather merely ensures that employees can appeal
disciplinary actions to the State Personnel Board. (At p. 1152.) This, they argue,
acknowledges that the Legislature has broad powers to establish civil service
procedures, including allowing employees to choose to challenge disciplinary
actions before some entity other than the State Personnel Board. Not so. In
California Correctional Peace Officers Association, we did not consider—much
less resolve—the issue here, whether the Legislature could, consistent with section
3, subdivision (a) of article VII, allow employees challenging disciplinary actions
to bypass review before the State Personnel Board.
Here, the State Personnel Board argues that allowing disciplined state civil
service employees to bypass its review in favor of pursuing a grievance/arbitration
procedure outside the Board would violate the “constitutional mandate” that state
civil service appointments and promotions be based solely on merit. The merit
principle, as explained earlier, embodies “ ‘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, supra, 29 Cal.3d at p. 184, fn. 7; see
also California State Personnel Board et al. v. California State Employees
Association (2005) 36 Cal. 4th 758 [invalidating post-and-bid programs that allow
selection of state employees from a list of eligible candidates based on seniority
rather than merit].) As the Court of Appeal here pointed out, administering the
state civil service based on the principle that appointments and promotions are
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made solely on the basis of merit is the “central function” of the State Personnel
Board. In the court’s view, the board’s adjudicatory authority to review
disciplinary actions, as set forth in section 3, subdivision (a) of article VII in our
state Constitution, is a “necessary counterpart” to the board’s power under article
VII, section 1, subdivision (b), to appoint and promote public employees based
solely on merit. The Court of Appeal reasoned that unless the board could
exercise a veto of the discipline imposed on state civil service employees, state
agencies “would be free to terminate an employee for spurious reasons in violation
of the merit principle.” We agree.
Thus, when a state civil service employee is removed from employment,
the interest of the State Personnel Board in ensuring that the disciplinary action
does not violate the merit principle is just as great as when an employee is selected
for state civil service employment. And discipline other than removal from civil
service also implicates the merit principle because disciplinary actions in general
can have a profound effect on an employee’s chance of future advancement within
the merit-based civil service.
It would be inimical to California’s constitutionally mandated merit-based
system of civil service, which is administered by the State Personnel Board, to
wholly divest that board of authority to review employee disciplinary actions in
favor of an MOU-created review board. This is so because a state civil service
based on the merit principle can be achieved only by developing and consistently
applying uniform standards for employee hiring, promotion, and discipline. By
vesting in the nonpartisan State Personnel Board the sole authority to administer
the state civil service system (Cal. Const., art. VII, § 2), our state Constitution
recognizes that this task must be entrusted to single agency, the constitutionally
created State Personnel Board. Because employee discipline is an integral part of
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the civil service system, the State Personnel Board’s exclusive authority to review
disciplinary decisions is a critical component of the civil service system.
Defendants insist that the MOU provisions at issue do not adversely affect
the constitutionally mandated merit-based civil service system because a
disciplined employee who opts for review by the Board of Adjustment instead of
review by the State Personnel Board has done nothing more than waive the right to
review before the latter. Defendants’ argument rests on the incorrect assumption
that the merit-based civil service system exists solely for the benefit of state civil
service employees to the exclusion of the general public, and therefore a
disciplined employee’s decision to forgo State Personnel Board review in favor of
the grievance/arbitration procedure affects no one other than the disciplined
employee. As mentioned on pages 7 and 8, ante, the California electorate back in
1934 had a different view of state civil service in mind when it passed an initiative
measure that added former article XXIV (now article VII) to the state
Constitution, revising the state civil service and creating the State Personnel Board
to oversee that system. The ballot argument explained the initiative’s goal as
promoting “efficiency and economy in State government,” to be achieved by
prohibiting “appointments and promotion in State service except on the basis of
merit.” (Ballot Pamp., 1934 Gen. Elec., supra, p. 12.) Thus, the public in general
has a strong interest in ensuring that partisanship plays no role in selection and
advancement within the state civil service. That public interest would be
subverted if various ad hoc arbitral boards, operating beyond the control of the
State Personnel Board and not bound to apply its merit-based standards, could
review and reverse disciplinary actions taken against state civil service employees.
As we have explained, the public interest in a merit-based civil service is best
served by recognizing that the State Personnel Board’s authority to review
employee discipline is exclusive.
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One last point on defendants’ “waiver” argument. Under our state
Constitution, a disciplined employee has the right to have the State Personnel
Board review the disciplinary action. The employee can, of course, decide not to
exercise that right at all. If that occurs, the employee has waived that right. But
that is different from allowing a disciplined employee the option of bypassing
review by the board in favor of an MOU-created agency that, unlike the board,
lacks express authority under our state Constitution to oversee California’s merit-
based state civil service system, including review of disciplinary actions taken
against employees.
DISPOSITION
The judgment of the Court of Appeal is affirmed.
KENNARD,
J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
AARON, J.∗

∗
Associate Justice of the Court of Appeal, Fourth Appellate District,
Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion State Personnel Board v. Department of Personnel Administration
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 111 Cal.App.4th 839
Rehearing Granted
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Opinion No.

S119498
Date Filed: December 1, 2005
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Court:

Superior
County: Sacramento
Judge: Lloyd Connelly, Gail D. Ohanesian and Ronald R. Robie
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Attorneys:

Elise S. Rose, Dorothy Bacskai Egel; Kronick, Moskovitz, Tiedemann & Girard and Susan R. Denious for
Plaintiff and Appellant and for Plaintiff and Respondent State Personnel Board.

Howard L. Schwartz, K. William Curtis, Marguerite D. Seabourn and Linda Diane Buzzini for Defendant
and Appellant and for Defendant and Respondent Department of Personnel Administration.

Anne M. Giese and Mark DeBoer for Defendant and Appellant and for Defendant and Respondent
California State Employees Association.

Carroll, Burdick & McDonough, Ronald Yank, David M. Rice and Gregg McLean Adam for Defendant
and Appellant and for Defendant and Respondent Department of Forestry Firefighters.

VanBourg, Weinberg, Roger & Rosenfeld, Weinberg, Roger & Rosenfeld, William A. Sokol, Vincent A.
Harrington, M. Suzanne Murphy and Matthew J. Gauger for Defendant and Appellant and for Defendant
and Respondent International Union of Operating Engineers.

Norman Hill and Wendy Breckon for Defendant and Appellant and for Defendant and Respondent
Department of Forestry and Fire Protection.

Bill Lockyer, Attorney General, David S. Chaney, Assistant Attorney General, Damon M. Connolly,
Miguel A. Neri, Jacob Appelsmith, Alicia M. B. Fowler and Michelle Littlewood, Deputy Attorneys
General, as Amici Curiae on behalf of Defendant and Appellant and Defendant and Respondent
Department of Personnel Administration.

Anne M. Giese; Katzenbach and Khtikian and Christopher W. Katzenbach for California State Employees
Association as Amicus Curiae on behalf of Defendants and Appellants and Defendants and Respondents
Department of Personnel Administration, Department of Forestry Firefighters and International Union of
Operating Engineers.
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Attorneys (cont’d)

Law Office of Steven B. Bassoff, Steven B. Bassoff; Eisen & Johnston Law Corporation, Jay-Allen Eisen
Law Corporation, Jay-Allen Eisen, Marian M. Johnston and C. Athena Rousos for Plaintiffs and
Respondents Association of California State Attorneys and Administrative Law Judges et al.

Elise S. Rose, Dorothy Bacskai Egel; Kronick, Moskovitz, Tiedemann & Girard and Susan R. Denious for
State Personnel Board as Amicus Curiae on behalf of Plaintiffs and Respondents Association of California
State Attorneys and Administrative Law Judges et al.
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Counsel who argued in Supreme Court (not intended for publication with opinion):

Dorothy Bacskai Egel
State Personnel Board
801 Capitol Mall
Sacramento, CA 95814
(916) 653-1403

Linda Diane Buzzini
Department of Personnel Administration
1515 S Street, North Building, Suite 400
Sacramento, CA 95814-7243
(916) 324-0512

Ronald Yank
Carroll, Burdick & McDonough
44 Montgomery Street, Suite 400
San Francisco, CA 94104
(415) 989-5900

Matthew J. Gauger
Weinberg, Roger & Rosenfeld
428 J Street, Suite 520
Sacramento, CA 95814-2341
(916) 443-6600

Steven B. Bassoff
Law Office of Steven B. Bassoff
2000 O Street, Suite 250
Sacramento, CA 95814
(916) 448-7317

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Opinion Information

Date:	Docket Number:
Thu, 12/01/2005	S119498

Disposition
Dec 1 2005	Opinion: Affirmed

Dockets
Oct 3 2003	Note:   Review is from Opinion on Rehearing of three consolidated cases: C032633: State Personnel Board v. Dept of Personnel Administration et al. C034943: Association of California State Attorneys and Administrative Law Judges et al. v. Dept of Personnel Administration et al. C040263: State Personnel Board v. Dept of Personnel Administration et al.
Oct 3 2003	Petition for review filed   by defendants and appellants (State Department of Personnel Administration (DPA) and DPA Director Marty Morgenstern)
Oct 3 2003	2nd petition for review filed   by counsel for defendant and respondent (CDF Firefighters)
Oct 3 2003	Record requested   for all three records: C032633, C034943 and C040263
Oct 6 2003	3rd petition for review filed   by attorneys for defendant and appellant [International Union of Operating Engineers]
Oct 7 2003	Received Court of Appeal record   C040263/C032633/C034943-all one doghouse each
Oct 24 2003	Answer to petition for review filed   by resps State Personnel Board and Association of Calif State Attys and Administrative Law Judges
Nov 12 2003	Petition for Review Granted (civil case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown & Moreno, JJ.
Nov 24 2003	Certification of interested entities or persons filed   from deft/resp CDF Firefighters
Nov 24 2003	Certification of interested entities or persons filed   by deft-aplt Cal. State Emp. Assn.
Nov 26 2003	Certification of interested entities or persons filed   by deft-resp Dept. of Personnel Administration
Dec 1 2003	Certification of interested entities or persons filed   by pltf-aplt Cal. State Personnel Board
Dec 11 2003	Opening brief on the merits filed   by Aplt/Resp Dept. of Personnel Administration
Dec 12 2003	Opening brief on the merits filed   Resp CDF Firefighters
Dec 15 2003	Opening brief on the merits filed   by deft/aplt International Union of Operating Engineers (40k)
Dec 15 2003	Request for judicial notice filed (in non-AA proceeding)   by deft/aplt International Union of Operating Engineers
Dec 24 2003	Opposition filed   by pltf-resp-aplt State Personnel Board to the motion for judicial notice
Jan 9 2004	Request for extension of time filed   Counsel for respondent (Assoc. of Calif. Attys and Admin. Law Judges requests extension of time to February 26, 2004 to file the answer brief on the merits.
Jan 9 2004	Change of Address filed for:   Counsel for respondents (Assoc. of Calif. Attys. and Admin. Law Judges)
Jan 14 2004	Answer brief on the merits filed   by counsel for resp. (State Personnel Board)
Jan 15 2004	Extension of time granted   Respondent's time to serve and file the answer brief on the merits is extended to and including February 26, 2004.
Jan 16 2004	Received letter from:   counsel for aplt. (CDF Firefighters) re: filing reply brief.
Jan 22 2004	Extension of time granted   Appellant's time to serve and file a consolidated reply brief is extended to and including March 17, 2004.
Jan 27 2004	Request for extension of time filed   by aplt International Union of Operating Engineers to file a consolidated reply brief, to 3-17-04.
Jan 28 2004	Filed:   Notice of withdrawal of counsel (Susan Denious, firm of Kronick, Moskovitz) for pltf-aplt State Personnel Bd.
Jan 30 2004	Extension of time granted   to 3-17-04 for aplt Int. Union of Op. Engineers to file a consolidated reply brief.
Feb 20 2004	Request for extension of time filed   by resp Assn. of Calif. Attorneys and Administration Law Judges to file the answer brief on the merits, to 3-8-04. (rec'd in Sac.) ***the court is granting this request, an order will be prepared.
Mar 1 2004	Extension of time granted   to 3-8-04 for Resp Assn. of Calif Attorneys and Administration Law Judges to file the answer brief on the merits.
Mar 8 2004	Answer brief on the merits filed   by resp Assn. of Calif State Attys. & Administrative Law Judges
Mar 15 2004	Request for extension of time filed   by aplt Int. Union of Operating Engineers to file a consol reply brief on the merits. to 4/15 (2nd ext)
Mar 16 2004	Extension of time granted   to 4-15-04 for aplt Int. Union of Op. Engineers to file the consolidated reply brief on the merits.
Mar 22 2004	Request for extension of time filed   counsel for resps. (CDF Firefighters) requests an extension of time to April 15, 2004 to file a consolidated reply on the merits.
Mar 25 2004	Extension of time granted   respondent's time to serve and file the consolidated reply brief is extended to and including April 15, 2004.
Mar 26 2004	Reply brief filed (case not yet fully briefed)   by counsel for aplts. (Dept. of Personnel Admin.) (consolidated reply)
Apr 15 2004	Reply brief filed (case not yet fully briefed)   by resp CDF Firefighters
Apr 16 2004	Reply brief filed (case fully briefed)   by aplt International Union of Operating Engineers (40k)
May 14 2004	Received application to file Amicus Curiae Brief   by Calif. State Employees Association in support of deft-aplt Dept. of Personnel Admin. (brief & appln separate)
May 24 2004	Permission to file amicus curiae brief granted   by the Calif. State Employees Association in support of aplts. Dept of Personnel Admin. Answers may be filed w/in 20 days.
May 24 2004	Amicus curiae brief filed   by Calif. State Emp. Assn. in support of aplts.
Jun 9 2004	Response to amicus curiae brief filed   by pltf-aplt State Personnel Board to the A/C brief of Cal. State Emp. Assn.
Aug 10 2005	Case ordered on calendar   9/13/05 @ 9am - San Francisco
Aug 18 2005	Filed:   Application from defendants (Dept. Personnel Admin, Int'l Union Ops. Engineers & CDF Firefighters) to divide oral argument time.
Aug 18 2005	Filed:   Application from plaintiffs (State Personnel Board, Assoc. of Ca State Attorneys, & Administrative Law Judges) to divide oral argument time.
Aug 25 2005	Order filed   The request of counsel for defendants to allow three counsel to argue on behalf of the defendants at oral argument is hereby granted.
Aug 25 2005	Order filed   The request of defendants to allocate to Linda Diane Buzzini, counsel for Department of Personnell Administration 10 minutes; Matthew J. Gauger, counsel for International Union of Operating Engineers 10 minutes; and Ronald Yank, counsel for CDF Firefighters 10 minutes of defendant's 30-minute alloted time for oral argument is granted.
Aug 25 2005	Order filed   The request of counsel for plaintiffs to allow two counsel to argue on behalf of plaintiffs at oral argument is hereby granted.
Aug 25 2005	Order filed   The request of plaintiffs to allocate to Dorothy Bacskai Egel, counsel for State Personnel Board 20 minutes and Steven B. Bassoff, counsel for Association of California State Attorneys and Administrative Law Judges 10 minutes of plaintiffs' 30-minute allotted time for oral argument is granted.
Aug 30 2005	Change of contact information filed for:   counsel Weinberg, Roger et al. for aplt Int. Union of Op. Eng.
Sep 1 2005	Filed:   supplemental brief of resp (CRC 29.1d)
Sep 2 2005	Filed:   supplemental brief by counsel for Dept. of Personnel Administration. (CRC 29.1(d)) (recv'd in Sacramento)
Sep 2 2005	Filed:   supplemental brief by counsel for CDF Firefighters' (CRC 29.1(d))
Sep 8 2005	Filed:   supp brief of deft-aplt Int. Union of Operating Engineers
Sep 12 2005	Received:   certificate of service for brief of aplt (Int. Union of Op. Engineers)
Sep 13 2005	Cause argued and submitted
Dec 1 2005	Opinion filed: Judgment affirmed in full   Opinion by Kennard,J. -----joined by George, C.J.,Baxter,Werdegar.Chin,Moreno, & Aaron (CA4/1 assigned)JJ.
Jan 5 2006	Remittitur issued (civil case)
Jan 23 2006	Received:   receipt for amended remititur from CA-3.

Briefs
Dec 11 2003	Opening brief on the merits filed
Dec 12 2003	Opening brief on the merits filed
Dec 15 2003	Opening brief on the merits filed
Jan 14 2004	Answer brief on the merits filed
Mar 8 2004	Answer brief on the merits filed
Mar 26 2004	Reply brief filed (case not yet fully briefed)
Apr 15 2004	Reply brief filed (case not yet fully briefed)
Apr 16 2004	Reply brief filed (case fully briefed)
May 24 2004	Amicus curiae brief filed
Jun 9 2004	Response to amicus curiae brief filed

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