vent v. brown final amended writ

7/27/2019 Vent v. Brown Final Amended Writ

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Kelly VentState Bar Number: 2574183380 Hartselle WaySacramento, CA 95827Telephone: 916.949.9137E-mail: [email protected]

In pro per

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SACRAMENTO

KELLY VENT,

Petitioner,

vs.GOVERNOR EDMUND G. BROWN,JR., in his official capacity; JULIECHAPMAN, in her official capacity asDirector of Department of CaliforniaHuman Resources; JOHN CHIANG, inhis official capacity as State Controller;TIMOTHY GORSUCH, in his officialcapacity as acting Director of Departmentof Alcoholic Beverage Control; andSTATE PERSONNEL BOARD

Respondents

Case No.: 34-2013-80001576-CU-WM-GDS

***AMENDED***VERIFIED PETITION FOR WRIT OFMANDATE/PROHIBITION

AND COMPLAINT FOR DECLARATORY RELIEF

(pursuant to Code Civ. Proc. 1085-86; 1060)

Vent v. Brown; Case No.: 34-2013-80001576-CU-WM-GDS

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES 3-4

INTRODUCTION 5

I. PARTIES 6-7

II. WHY THIS WRIT SHOULD ISSUE 8-10

III. ALLEGATIONS 10-33

IV. COMPLAINT 33-47

V. PRAYER 48-49

CONCLUSION 49

VI. VERIFICATION . 50


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TABLE OF AUTHORITIES

UNITED STATES CONSTITUTION

Fifth Amendment ... passim

Fourteenth Amendment ......passim

Article I, 10 ..passim

CALIFORNIA STATE CONSTITUTION

Article I ... .. passim

Article VII passim

Article V, 1 8, 23, 38

Article XX, 21 . passimSTATUTES, RULES, & REGULATIONS

Business and Professions Code

23001...14

23053..8, 9

2576114

California Code of Civil Procedure

1085....passim

1086passim

Government Code

3512, et seq. 7, 22

12010..8

12440..8

1631014

18524..8, 9

18525...35-36

19515..7, 8

19516.7, 8, 17Vent v. Brown; Case No.: 34-2013-80001576-CU-WM-GDS

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19816.2..8

1983718

UNITED STATES SUPREME COURT

Bd. of Regents v. Roth (1972) 408 U.S. 564...36

SUPREME COURT OF CALIFORNIA

Bd. of Social Welfare v. County of L.A. (1945) 27 Cal.2d 98......9

(People ex rel. Deukmejian v. Brown (1981) 29 Cal. 3d 150, 154.) .... 23

Prof. Engineers in Cal. Govt. v. Schwarzenegger (2010) 50 Cal.4th 989.. passim

.. passim

White v. Davis (2003) 30 Cal.4th 52839

CALIFORNIA Brown v. Chiang (2011) 198 Cal. App. 4th 120324-25

Cal. Attorneys v. Schwarzenegger (2009) 174 Cal.App.4th 424......24

Green v. Mt. Diablo Hospital Dist. (1989) 207 Cal.App.3d 63.42

Marshall v. Williams (1927) 85 Cal.App 507 ....9

Ross v. Bd. of Education (1912) 18 Cal.App 222...10

Wirth v. State of Cal. (2006) 142 Cal.App.4th 131....43

California Attorneys, etc. v. Arnold Schwarzenegger et al.

(Feb. 26, 2010) A127777....12, 25


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INTRODUCTION

Primarily, this petition seeks a writ to order Respondents to return all civil-service

salaries unlawfully withheld by governor furloughs from February 1, 2009 up through March 30,

2011. Petitioner seeks a writ to declare that unilateral furloughs, as applied to attorneys, doctors,

dentists, and podiatrists in Work-Week Group Salaried Exempt (WWG-SE) are unlawful and

unconstitutional. This petition also seeks a writ to order respondents to pay all similarly

classified attorneys in BU2 the same salaries from April 1, 2011 to June 30, 2013. Further,

Petitioner requests that this court issue a writ to Respondents to return the salary taken from all

civil-service employees of the ABC without lawful authority.

Most important, this petition seeks the return of all aspects of the civil service system to

the direct authority of the non-partisan SPB as required by Article VII. In an effort to stop thecorruption of the spoils system brought on by the political pressures and influences of governors

over the predecessors to the SPB, the People of California overwhelmingly approved a

constitutional amendment to remove all partisan authority, control, and jurisdiction over civil-

service employment. Neither the legislature nor the governor can divest the SPB of its

constitutional mandate.


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Petitioner hereby incorporates by reference all of the foregoing paragraphs as if

fully set forth herein. I, KELLY VENT, hereby petition this Court for a writ of

mandate/prohibition and/or declaratory relief directed to respondents. Through this Petition, I

allege the following:

I. PARTIES

PETITIONER

1. I, KELLY VENT, PETITIONER, am a taxpayer, resident and citizen of California. I

am a resident of Sacramento, California where venue is proper. I am a permanent,

full-time, civil service attorney employed by the Department of Alcoholic Beverage

Control (ABC).

RESPONDENTS

2. GOVERNOR EDMUND G. BROWN, JR., is an elected official named in his official

capacity to execute the law, supervise executive and ministerial officers, and

negotiate civil service salaries. Article V, section 1, of the California Constitution

provides that the supreme executive power of this State is vested in the governor and

that the governor shall see that the law is faithfully executed. Pursuant to Section

12010, the governor is employer and supervisor to the official conduct of all

executive and ministerial officers. The governor can order the return of salaries taken

by furloughs. The Ralph C. Dills Act (Gov. Code 1, 3512, subd. c, et seq .)

authorizes the governor or governors designated representative to negotiate civil

service salaries with employee unions under a system of collective bargaining.

3. JULIE CHAPMAN, a political appointee of the governor, is the acting Director of the

California Department of Human Resources (CalHR [formally Department of

Personnel Administration (DPA)]) is named in her official capacity. The directors

duties, pursuant to Section 19815.4, subdivision (b), include the administration and

enforcement of personnel laws. Section 19816 divests the SPB of its duties,

1 All further statutory references are to the Government Code unless otherwise indicated.


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purposes, responsibilities, and jurisdiction over the administration of salaries, hours,

and other personnel-related matters, training, performance evaluations, and layoffs

and grievances and grants such authority to CalHR. Section 19815, subdivision (g),

provides that CalHR is the governors designee for the purposes of collective

bargaining over wages, hours, and other conditions relating to civil service

employment. The director of CalHR serves at the pleasure of the governor and can be

removed at will.

4. JOHN CHIANG, State Controller, is an elected official named in his official capacity.

The controller has a legal duty to issue warrants from authorized appropriations to

pay lawful salary obligations. Art. XVI, section 7 of the Constitution of California

and Section 12440 authorize the controller to draw warrants authorized by law upon

unexhausted specific appropriations.

5. TIMOTHY GORSUCH, unofficial acting Director of the ABC, is named in his

official capacity to make appointments to positions within the ABC. ( 18524; Bus. &

Prof. Code, 23053.) The Director of ABC serves at the pleasure of the governor

and can be removed at will.

6. The SPB is a five-member, non-partisan board vested with exclusive authority to

enforce the merit principle of civil service employment as mandated by Article VII of

Californias Constitution. The SPB has a constitutional duty to ensure that civil

service employment laws are free from political influences and pressures of the

governor, legislature, and other elected officials. Section 19816.2 requires that the

SPB review all CalHR regulations, rules, or provisions pertaining to layoff or

demotion in lieu of layoff of civil service employees whether established or agreed to

by CalHR for consistency to Article VII. The board shall create and adjust classes of

positions in the state civil service in accordance with Article VII of the Constitution

and this part. The following members are named in their official capacity: Patricia

Clarey, Kimiko Burton, Richard Costigan, Maeley Tom, and Lauri Shanahan.

7. All respondents have physical offices located in Sacramento where venue is proper.


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II. WHY THIS WRIT SHOULD ISSUE

Petitioner hereby incorporates by reference all of the foregoing paragraphs as if

fully set forth herein.

8. Code of Civil Procedure section 1085, subdivision a, provides: A writ of mandatemay be issued by any court to any inferior tribunal, corporation, board, or person, to

compel the performance of an act which the law specially enjoins, as a duty resulting

from an office . . . I performed all services as required by the ABC pursuant to my

appointment to a full-time, civil service attorney in exchange for a fixed salary from

February 1, 2009 through March 31, 2011. ( Marshall v. Williams (1927) 85 Cal.App

507 [writ to city auditor to pay approved salary to duly appointed employee].) Acting

Director TIMOTHY GORSUCH, as the appointing authority2

, has a legal duty to payme a full salary for services rendered. The partial salary paid by ABC resulted in

ABC keeping 70 days of my unpaid salary in its fund.

9. The Supreme Court of California holds that a writ is proper [w]here the question is

one of public right and the object of mandamus is to procure the enforcement of a

public duty, the relator need not show that he has any legal or special interest in the

result, since it is sufficient that he is interested as a citizen in having the laws

executed and the duty in question enforced. ( Bd. of Social Welfare v. County of L.A.(1945) 27 Cal.2d 98, 162.) As a resident, citizen, and taxpayer of California, I have a

shared interest with the public that state officials not violate state and federal

constitutions. I have a shared interest that California honors it contractual obligations.

I have a shared interest to return to efficient government operations where employees

can perform services free from the partisan influences and pressures of politicians.

10. Code of Civil Procedure section 1086, states: The writ must be issued in all cases

where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested.

There is no adequate remedy because the state never rendered a decision to appeal.

Respondents denied employees due process and constructively denied all doors to

2 ( 18524; Bus. & Prof. Code, 23053.)Vent v. Brown; Case No.: 34-2013-80001576-CU-WM-GDS

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administrative relief. Salary deprivations, caused by furloughs, began with little to no

notice. Furloughs were unlimited in scope and duration. Employees received no

written justification by CalHR. As a result, employees had nothing to appeal but an

executive order. Closing all doors to relief, Governor Schwarzenegger, as executive

or agent to the legislature, declared the unilateral salary reductions were beyond any

due process protections. Each executive furlough order stated:This Order is not intended to create, and does not create, any rights

or benefits, whether substantive or procedural, or enforceable at law or in equity,against the State of California or its agencies, departments, entities, officers,employees, or any other person.

11. Admittedly, an employee could litigate the breach of the employment contract in

court. However, a writ shall issue to remedy the unlawful taking of salary as theresult of an official duty because a mere win on a contract claim cannot compel

performance to actually pay. ( Ross v. Bd. of Education (1912) 18 Cal.App 222, 225.)

12. While technically employees had access to the courts, the denial of administrative

remedies and years of increasing pay cuts created genuine barriers to court relief.

Administrative relief would have allowed reasonable use of state time and resources

to challenge the furloughs in a pre or post-deprivation, evidentiary hearing. During

furloughs, administrative relief was futile. No employee received administrativerelief from furloughs. The state and employee unions spent millions of dollars

litigating the illegal furloughs of the governor. ( Prof. Engineers in Cal. Govt. v.

Schwarzenegger (2010) 50 Cal.4th 989, 1033 [governor cannot unilaterally order

unpaid furloughs] ( PECG ).) The state allows no use of state time or resources to

litigate salary deprivations in the courts.

13. The legislature essentially denied responsibility for furloughs and hid behind

Governor Schwarzenegger until the Supreme Court of California in PECG revealed

the legislatures true role on November 4, 2010. ( PECG at pp. 1047-48.) As a result


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of an omission of a material fact, all legal challenges were incorrectly premised on

the actions of the Executive, not the appropriation power 3 of the legislature.

14. I did not sit on my hands. I filed amici curiae briefs with the Supreme Court of

California and for the special fund suit in the First District Court of Appeal

(California Attorneys, etc. v. Arnold Schwarzenegger et al. (Feb. 26, 2010, A127777)

(revd & remand Sept. 29, 2011) [nonpub. Opn.])

15. Due to the risk of inconsistent judgments, judicial economy, and since I assert only

one cause of action, the doctrine to exhaust administrative remedies should not apply

to relief requested for April 1, 2011 through June 30, 2013.

16. If relief is not granted, I will continue to suffer irreparable harm as I relied on my

promised salary in order to meet my own contractual obligations. Such reliance

resulted in my detriment because I defaulted on certain loans and lost low-interest

credit payments on others. My credit rating went from very good to merely

good. A writ should issue because I no adequate remedy at law since there was

never a decision to appeal and respondents denied all constructive access to

administrative relief.

17. Similarly, other civil-service employees will suffer irreparable harm if relief is not

granted because they too have constitutionally, protected rights in employment

contracts. They too have a shared interest that the state officials they provide services

for will not violate the state and federal constitutions. Irreparable harm to the

peoples trust in government and to civil-service employees will occur if relief is not

granted.

III. ALLEGATIONS

18. PETITIONER hereby incorporates by reference all of the foregoing paragraphs as if

fully set forth herein.

3 The Court in PECG consolidated several of the general fund furlough suits. The Court raised the issue of appropriations for the first time when it essentially asked parties to brief, what effect, if any, did appropriations have on the executive order issued by the governor? Before briefing the Court in PECG , no one had mentioned appropriations in any furlough litigation.


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19. I began my civil-service career with the State of California on or about September

1993, as a tax program assistant for the Franchise Tax Board. I earned $1388 per

month. I eventually promoted to a tax compliance representative at the Employment

Development Department (EDD) where I earned $4670 per month. Thanks to the

supportive management team at EDD, I took approved educational leaves of absences

to attend law school in order to become a state attorney.

20. On October 31, 2008, I accepted a full-time, civil service appointment to Staff

Counsel I, Range A (renamed as attorney) to work for the ABC in exchange for a

fixed salary of $4674 per month 4. I performed all services as required by the ABC

from October 31, 2008 through present day.

21. As an attorney, the state retains my services and availability on a monthly basis for a

fixed salary. I prosecute administrative hearings throughout northern California.

During furloughs, I spent an average of one month, each year, living in hotels away

from home while conducting state business. I rely on a fixed income because the

changing demands and irregular hours of attorney work make outside employment

difficult since I have a legal and ethical obligation to put the needs of the state first.

22. I am a voting member of the employee union, California Attorneys, Administrative

Law Judges and Hearing Officers in State Employment (CASE), Bargaining Unit 2

(BU2). I can only vote on my own employment contract if I agree to kickback part of

my salary to the direct or indirect benefit of politically elected employers of other

civil-service attorneys, members of the legislature, and the governor. I am required to

pay another part of my salary for the benefits of collective bargaining. The majority

of this money goes to political causes that directly or indirectly benefit the above

politicians.

23. From February 1, 2009 through March 31, 2011, I performed the same attorney

services as other similarly classified attorneys who worked for the Board of

Equalization, Department of Education, Department of Justice (DOJ), Legislative

4 Before and after appointment, I had informed the ABC that I should have been appointed to Range B, not Range A. TheABC eventually corrected the error after 29 months.


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Counsel Bureau (LCB), Secretary of State, State Controllers Office, State

Treasurers Office, California Institute for Regenerative Medicine, Bureau of State

Audits, Public Utilities Commission, California Earthquake Authority, Employment

Development Department, Franchise Tax Board, California Highway Patrol, State

Compensation Fund, Prison Industries Authority, California State Lottery

Commission, First 5 Association of California, and California Housing Finance

Agency. Without regard to the constitutional merit principle enshrined in Article VII,

the governors paid higher salaries to similarly classified attorneys in the above

departments.

The Department of Alcoholic Beverage Control

24. The ABC is a constitutional department (Art. XX 22) funded entirely by license

fees. (Bus. & Prof. Code, 25761.) The ABC takes nothing from the general fund

and the general fund is prohibited from incurring a debt-obligation to the ABC in the

Budget Act. The general fund may temporarily borrow monies from the ABC fund

for short-term use when such borrowing will not impair the operations of the ABC.

(Gov. Code, 16310.) Borrowing usually occurs during the annual budget impasse

so the general fund can save money on outside borrowing costs from private lenders.

25. The ABC exercises the police powers of the State for the protection of the safety,

welfare, health, peace, and morals of the people of the State. (Bus. & Prof. Code,

23001.) The subject matter involves in the highest degree the economic, social, and

moral well-being and the safety of the State and of all its people. ( Id .)

26. The ABC fund is a continuous appropriation available for use for the enforcement

and administration of the ABC Act, without regard to fiscal year. (Bus. & Prof.

Code, 25761, subd. (d); 16304, subd. (f).) The legislature appropriates the

entirety of ABCs special fund money to the ABC each year for the enforcement and

administration of the ABC Act. (Bus. & Prof. Code, 25761.) Any funds not used in

any given fiscal year remain available for use in subsequent years.


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27. The ABC fund became encumbered as soon as I performed as required in exchange

for a promise of a fixed salary. Section 16304 states: An appropriation shall be

deemed to be encumbered at the time and to the extent that a valid obligation against

the appropriation is created.

28. When furloughs began on February 1, 2009, the ABC had a fund balance of $13.8

million 5 of monies already appropriated in prior budget acts. A fund balance is a

surplus. This surplus was 28 percent over and above the $49.3 million in operating

costs for 2008-2009 6. According to the Director of ABC in 2011, the ABC typically

operates with a 10% fund balance above and beyond its operating costs of roughly

$50 million dollars per year.

29. As of August 1, 2010, the fund balance for ABC was $21.1 million dollars; this

surplus was 47% over and above its operating costs of 44.8 million dollars. In 2012,

the fund balance ballooned to $32 million dollars. Currently, the fund balance is $31

million dollars. This surplus is 59% over and above the costs necessary for the

administration and enforcement of the ABC Act.

30. The ABC employs approximately 400 people. The repayment of salaries taken by the

executive and legislature from February 1, 2009 to March 30, 2011, would reduce the

fund balance to about $27 million dollars.

31. The ABC has unexhausted specific appropriations available for encumbrance. The

ABC fund continues in existence. As a continuous appropriation fund, monies

already appropriated by the legislature for the enforcement and administration of the

ABC Act remain available for such use without regard to fiscal year. ( 16304,

subdivision (f); Bus. & Prof. Code, 25761, subd. (d).)

32. I have asked the ABC for the legal authority that justified the ABC keeping my salary

and I was told the ABC has to do what the governor and Department of Finance says

to do. During a meeting early in 2011, I asked the Director of ABC why the

legislature would want to take my salary if the ABC takes no general fund money and

5 ABC Budget Fund Statement 2007-2008 from the Governors Budget 2009-2010.

6 ABC Budget Fund Statement 2008-2009 from the Governors Budget 2010-2011.Vent v. Brown; Case No.: 34-2013-80001576-CU-WM-GDS

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the general fund cannot borrow from the ABC. The Director confirmed I was correct,

but he said that the public does not know the difference between the general and

special funds.

Furloughs via Executive Orders (exhibit A)

33. On December 19, 2008, the Friday before Christmas, Governor Schwarzenegger

publicly advised me that he intended to take nearly 10% of my fixed salary for 17

months due to another projected fiscal crisis of the general fund. The governor

created a furlough law and ordered me to stay home on two normal workdays each

month for 17 months to start February 1, 2009. (Governors Executive Order

Number S-16-08 [issued December 19, 2008, effective February 1, 2009 through June

30, 2010].)

34. Each executive order stated:This Order is not intended to create, and does not create, any rights or benefits,whether substantive or procedural, or enforceable at law or in equity, against theState of California or its agencies, departments, entities, officers, employees, or any other person.

35. Politically elected state employers do not serve at the pleasure of the governor and

lawfully receive money from civil service employees. These employers did not

furlough their people.

36. Most political appointee employers serve at the pleasure of the governor and none can

accept money from their employees. These employers furloughed their employees.

37. While working on July 1, 2009, I learned through published media reports that the

governor ordered another day of furloughs to begin on the same day of his order. I

had already lost 10 days of salary and budgeted for another year of losing 10% each

month. The new order required ABC to keep 15 instead of 10% of my salary each

month through June 30, 2010. (Governors Executive Order Number S-13-09 [issued

July 1, 2009, effective July 1, 2009 through June 30, 2010].)

38. When furloughs ended on June 30, 2010, the ABC had retained 46 days of my salary.

On July 28, 2010, I learned through published media reports that the governor needed

15% more of my salary to start the following week on August 1, 2010. (Governors


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Executive Order Number S-12-10 (issued July 28, 2010, effective August 1, 2010

with no end date) The governor said that involuntary pay cuts would continue

indefinitely or until BU2 agreed to voluntary pay cuts. By this time, the majority of

BU2 lacked incentive to vote for voluntary pay cuts because the majority received

full salary.

39. Other than the legislature, no one knew the legislature tacitly approved of the new

furlough law created by the governor until the Supreme Court told everyone on

November 10, 2010. ( PECG, supra, 50 Cal.4th 989). As interpreted by both

governors S and Brown, as long as the legislature later agrees to reduce individual

salaries in an appropriation bill, governors now have unfettered discretion to reduce

any civil service employee salary outside of collective bargaining through furloughs.

40. When furloughs, via executive order, ended on March 31, 2011, Governors S and

Brown had collectively ordered the ABC to keep 70 days of my salary for no

legitimate government purpose. I performed as required by my appointment and the

respondents broke its promise to pay my salary.

California Human Resources (formally the Department of Administration)

41. Under the direction of the governor, CalHR implemented and administered the new

furlough law. CalHR never developed safeguards to protect against erroneous

deprivations. It implemented furloughs by department without regard to each

departments fiscal soundness or workload by classification. CalHR never

implemented furloughs according to merit principle factors like seniority.

42. Prior to the start of furloughs, CalHR did not provide written notice to employees

advising of the reason for the salary deprivations. CalHR did not give any employees

written information regarding any individual rights to a pre or post-evidentiary

hearing to dispute the furloughs. CalHR gave no written information to employees

regarding procedures for administrative relief or appeal rights. CalHR did not offer

an individual exemption process.


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43. It appears CalHR did not have the SPB review its furlough plan for conflict to the

merit principle within Article VII as required by Section 19816.2. Section 19816.2

mandates SPB review for all CalHR regulations, rules, or provisions pertaining to

layoff or demotion in lieu of layoff of civil service employees whether established or

agreed to by CalHR for consistency to Article VII.

44. Of the approximately 800 attorneys similarly classified to Attorney I in 2009, 55%

were never furloughed and lost no salary. Under the merit principle, where seniority

is a major component, I would have replaced any of those fully-paid attorneys who

had less than 12 years of service credits with the state. After February 2009, the state

hired 23 new Attorney Is at full salary. Pursuant to the competitive exam process, I

was more qualified than these attorneys, yet I received substantially less salary.

Under the merit principle, only furloughed Attorney Is with more than 12 years of

service credit would have taken hiring preference over me for those 23 appointments.

45. Of the approximately 830 attorneys similarly classified to Attorney I in 2010, 53%

were never furloughed and lost no salary, 4% lost 18 days of salary, and the

remaining lost 33 days or 1.5 months of salary. During 2010, the state hired another

63 new Attorney Is at full salary. Pursuant to the competitive exam process, I was

more qualified than these attorneys, yet I received substantially less salary. Under the

merit principle, only furloughed Attorney Is with more than 13 years of service credit

would have taken hiring preference over me for those 63 appointments.

46. If offered demotion in lieu of furlough, then I would have been eligible to take an

appointment to a lower classification without losing salary due to my ten years of

state service. ( 19050, subd. (a).)

47. The furloughs, as administered by CalHR, effectively caused a substantial demotion

of two classifications in violation of Section 19837. Section 19837, subdivision (a),

demands that employees in a class shall receive a salary within the limits established

for that class. The attorney series is a deep classification that has four distinct ranges

from A through D. Movement between and appointment to each range is no different

from movement between two classifications.


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48. From February 1, 2009 through October 31, 2009, my fixed salary for appointment to

Attorney in Range A, fell below the minimum salary due that classification.

(Unrelated to furloughs, the ABC later corrected my original appointment on October

31, 2008 from Range A to Range B on April 14, 2011. The subsequent result was

that the corrected salary to reflect Range B still fell below the minimums for both

Range A and B within the attorney classification.)

49. From November 1, 2009 through October 31, 2010 7, my fixed salary for appointment

to Attorney in Range B, fell below the minimum salary for both Range A and B in the

Attorney classification. (The subsequent correction on April 14, 2011, to my original

appointment, resulted in my placement to Range C. As a classified attorney in Range

C, I received less salary than the minimums for both Range B and C within the

attorney classification.)

50. From November 1, 2010 through March 31, 2011, my fixed salary for appointment to

Attorney in Range C, fell below the minimum salary for both Range B and C in the

Attorney classification. (The subsequent correction on April 14, 2011, to my original

appointment, resulted in my placement to Range C, second year. As a classified

attorney in Range C, I still received less salary than the minimums for both Range B

and C within the attorney classification.)

51. During furloughs, less qualified attorneys received higher salaries than attorneys with

more experience.

Furloughs via Executive Order as applied to attorneys in BU2

2009

52. In 2009, there were approximately 3,205 attorneys and 1,907 (60%) lost no salary.

With the exception of 69 attorneys in the Public Utilities Commission and 3 in

Department of Forestry and Fire Protection, only attorneys who worked for politicallyelected bosses were never furloughed in 2009.

7 The governor allowed furloughed employees their full salary for July 1, 2010 through July 31, 2010.Vent v. Brown; Case No.: 34-2013-80001576-CU-WM-GDS

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53. 1722 attorneys worked for elected officials in the following departments and were

never furloughed:

Board of Equalization

Bureau of State Audits

California Earthquake Authority

California Institute for Regenerative Medicine

Department of Education

Department of Justice

Legislative Counsel Bureau

Secretary of State

State Controllers Office

State Treasurers Office

Department of Insurance

Of those 1722 attorneys employed by elected officials, who were never

furloughed, 1634 (95%) worked for departments that received more than 25% of

their revenue from the general fund.

480 attorneys in SCIF were furloughed for 10 days, but received back salary with

interest in 2009.

As a result of a civil agreement between Governor Brown and CASE on February

1, 2012, approximately 16 attorneys in the following departments lost 28 days of

pay, but later received back pay:

California Housing Finance Agency

California State Lottery Commission

Prison Industries Authority

54. Unrelated to merit, workload, or funding source, 1,298 (40%) of the remaining

attorneys lost 28 days of pay.

Of these attorneys who lost 28 days of pay:

337 (26%) worked for departments that received no general fund monies.


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248 (19%) worked for departments that received up to 11% of general fund

monies.

173 (13%) worked for departments that received between 12 and 22% of

general fund monies.

201055. In 2010, the numbers of attorneys grew to approximately 3,378.

2,028 (60%) lost no pay and worked for the following departments:

Board of Equalization

Bureau of State Audits

California Earthquake Authority

California Institute for Regenerative Medicine

Department of EducationDepartment of Forestry and Fire Protection

Department of Justice

Legislative Counsel Bureau

Public Utilities Commission

Secretary of State

State Compensation Insurance Fund

State Controllers OfficeState Treasurers Office

Department of Insurance

56. As a result of a civil agreement between Governor Brown and CASE on February 1,

2012, the 10 attorneys who were furloughed 33 days in the following departments

later received back salary:

California State Lottery Commission

Prison Industries AuthorityApproximately ten attorneys who were furloughed 18 days in the following

department later received back pay without interest:

California Housing Finance Agency


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57. As of July 1, 2010, no attorney who worked for a politically-elected official lost pay

to furloughs.

123 (4%) attorneys in the following departments lost 18 days of pay:

California Highway Patrol

Employment Development Department

Franchise Tax Board

1,227 (36%) of the remaining attorneys lost 33 days of pay unrelated to merit or

funding source.2011

58. In 2011, the total number of attorneys was approximately 3,353. 37% of attorneys

lost nine days of salary under Governor Brown.

Furloughs via MOU (effective April 1, 2011 to June 30, 2013) for BU2

59. Effective April Fools Day, 2011, Governor Brown lifted the involuntary furloughs

for the remaining 37 percent of state attorneys furloughed since February 1, 2009.

CASE presented members with a 27-month MOU to run April 1, 2011 through June

30, 2013. CASE urged members to vote for 15 months of voluntary furloughs for

most of CASE attorneys to begin April 1, 2011 with an end date of June 30, 2012.

This new MOU would allow BU2 members to receive full-time salary from July 1,2012 through June 30, 2013.

60. On March 22, 2011, CASE reminded members in an email not to exploit the end of

involuntary furloughs because [f]or the first time in years, CASE is dealing with an

administration that is bargaining in good faith. Governor Brown told employees we

had to volunteer for 5% pay cuts or the legislature was going to take that and possibly

more, whether employees agreed or not.

61. CASE members voted the voluntary pay cuts for most attorneys on April 17, 2011.The MOU excluded SCIF attorneys, for reasons unrelated to merit, from the pay cuts

negotiated for all other members to from April 1, 2011 to June 30, 2012. The


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legislature ratified a 27-month MOU for BU2 on May 16, 2011, effective April 1,

2011 through June 30, 2013 . (Stats. 2011, ch. 25 2 (SB 151).)

62. Despite the existence of an employment contract without pay cuts for the final year of

the MOU from July 1, 2012 through June 30, 2013, CASE negotiated a side-letter

agreement with Governor Brown on July 17, 2012 for another year of salary

reductions retroactive to July 1, 2012.

63. Before member ratification, CASE told members the legislature would impose a year

of involuntary salary reductions for all civil-service attorneys in the budget act if

employees did not agree to voluntary salary reductions. SCIF attorneys were to have

their salaries cut as well.

64. In July of 2012, Governor Brown issued a furlough memo to force involuntary

furloughs on employees from two other unions that would not bargain for voluntary

furloughs.

65. Undisclosed to CASE members and unrelated to merit, the legislature and Governor

Brown excluded LCB attorneys from the pay cuts imposed on all other attorneys from

July 1, 2012 through June 30, 2013. (Stats. 2012, Sess. 20112012, ch. 21 3.90,

subd. (a).)

66. LCB attorneys draft legislation render legal opinions for members and committees of

the legislature.

Governor Brown

67. In 1977, Governor Brown signed the State Employer-Employee Relations Act

(SEERA) ( 3512- 3524.), which named the governor as the designated

representative of the legislature to negotiate employee salaries with employee unions.

68. SEERA removed many of the non-partisan functions of the SPB. The attorney

general sued Governor Brown on behalf of the SPB claiming that SEERA was

unconstitutional. ( People ex rel. Deukmejian v. Brown (1981) 29 Cal. 3d 150, 154.)

The Court held it was incongruous for an attorney general to sue the governor. ( Id . at

p. 158.) The Court quoted Article V, section 13, "Subject to the powers and duties of


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the Governor, the Attorney General shall be the chief law officer of the State. ( Id .)

The constitutional pattern is crystal clear: if a conflict between the Governor and the

Attorney General develops over the faithful execution of the laws of this state, the

Governor retains the supreme executive power to determine the public interest; the

Attorney General may act only subject to the powers of the Governor. ( Id .) The

SPB eventually obtained independent counsel,

69. Governor Brown served as State Attorney General for the Department of Justice

(DOJ) from 2007 to 2011. As State Attorney General, he employed approximately

34% of the States attorneys in both 2009 and 2010. Taxpayer monies from the

General Fund finance nearly half of the operating costs for the DOJ.

70. During furloughs in 2009-2010, Governor Brown, as attorney general and employer

to 34% of the states attorneys, received more CASE money than any other

individual.

71. As Attorney General, he utilized resources of the Attorney Generals office to file an

amicus brief in support of a constitutional challenge brought by CASE on behalf of

his DOJ attorneys against Governor Schwarzenegger. He argued that DOJ attorneys

were grossly underpaid in violation of the merit principle within Article VII; he

blamed collective bargaining. ( CA Attorneys v. Schwarzenegger (2009) 174

Cal.App.4th 424, 431.)

72. As candidate for governor in 2010, Governor Brown said [unilateral] furloughs [via

executive order] were a bad idea. 8

73. As attorney general, Governor Brown refused to implement any of the furlough

orders of Governor S against his DOJ attorneys. Governor Brown then represented

his Department of Justice, Board of Equalization, Board of Education, Secretary of

State, State Controllers Office, State Treasurers Office, and Department of

Insurance in defense of litigation brought by Governor S. This litigation has been

8 Sacramento Bee, Jerry Brown Proposes 4-day work week (Jan. 4, 2013) at [as of July 20, 2013].


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referred to as the legal challenge by the Constitutionals. ( Brown v. Chiang (2011)

198 Cal. App. 4th 1203.)

74. The trial court upheld the governors furlough orders as to employees of the

Constitutionals on April 9, 2009. As attorney general, Governor Brown appealed and

Governor Schwarzenegger did not challenge the automatic stay. The Director of

CalHR said "Courts apply a very high legal standard when considering whether to

grant relief from an automatic stay. Our lawyers decided that given the enormity of

the State's ever-growing deficit, the impact of not furloughing those 15,000

employees didn't appear to meet the court's 'irreparable harm' criteria." 9

75. When the Constitutionals lost at trial court, furloughs had only been in place for about

two months. 90% of their employees worked for departments that rely upon general

fund appropriations for more than 25 percent of each departments total operating

costs,

76. CASE prevailed at trial court on behalf of special fund departments on December 31,

2009. Governor Schwarzenegger appealed the decision and successfully argued

against lifting the furloughs for these employees. ( California Attorneys, etc. v. Arnold

Schwarzenegger et al. (Feb. 26, 2010, A127777) (revd & remand Sept. 29, 2011)

[nonpub. Opn.])

77. Governor Brown, as attorney general, utilized the resources and political clout of the

Attorney Generals office to avoid a ruling on his appeal for the employees of the

Constitutionals. By the time Governor Brown was sworn in as governor on January

3, 2011, the appellate court still had not ruled and Governor Brown asked for another

delay. Jerry Brown lost the suit as attorney general, but he won the suit as governor.

( Brown v. Chiang (2011) 198 Cal. App. 4th 1203.)

78. When Governor Brown assumed office on January 3, 2011, Governors Executive

Order Number S-12-10 was still in effect. That executive order required 15 percent

salary reductions for most attorneys in BU2. Governor Brown exercised discretion

and chose not to apply the executive order to his attorneys and other employees in the

9 Sacramento Bee, Furlough update: What's up with the constitutionals? (June 4, 2009) at [as of September 30, 2013]..


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History of the State Personnel Board and Article VII

85. Article VII, section 1, (b): In the civil service permanent appointment and promotion

shall be made under a general system based on merit ascertained by competitive

examination.

Article VII , section 2:(a): There is a Personnel Board of 5 members appointed by the Governor andapproved by the Senate, a majority of the membership concurring, for 10-year terms and until their successors are appointed and qualified. Appointment to fill avacancy is for the unexpired portion of the term. A member may be removed byconcurrent resolution adopted by each house, two-thirds of the membership of each house concurring.(b) The board annually shall elect one of its members as presiding officer.(c) The board shall appoint and prescribe compensation for an executive officer who shall be a member of the civil service but not a member of the board.

Article VII , section 3, (a):The board shall enforce the civil service statutes and, by majority vote of all itsmembers, shall prescribe probationary periods and classifications, adopt other rules authorized by statute, and review disciplinary actions.

86. 100 years ago, the legislature enacted a statute creating California's first civil service

system in order to help combat evils of the spoils system stemming from political

patronage in state employment. (Stats. 1913, ch. 590, p. 1035.) Section 2 authorized

the creation of a three-person Civil Service Commission (Commission) where the

governor appointed each member to serve a four-year term. This Commission was

the predecessor to the current SPB. A member could only be removed by a

concurrent resolution of both houses of the legislature. For the first year, the

staggering of term end dates allowed Governor Hiram Johnson to appoint the first

three members and one replacement in his first term as governor.

87. The responsibility of the Commission was to establish, maintain, and enforce an

employment system premised on the merit principle free from political influence.The act made any willful violation a misdemeanor. The relevant provisions to this

Petition are as follows:


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Section 5 defined the primary duties, responsibilities, and obligations of the

Commission. The Commissions first duty was to ensure that like salary shall be

paid for like work through its establishment of job classifications and salary

ranges. Its second duty was to develop an examination process to ensure that

candidates were properly rated as to merit, efficiency, and fitness. Its third duty

was to ensure compliance to the merit principle through its power to adopt and

enforce suitable rules and regulations.

Pursuant to Section 7, the Commission could exempt any position from the civil

service requirements with the agreement of two members.

Section 8 vested the Commission with the authority to make all rules for

classifications including rules for appointments, transfers, reinforcements,

promotions, reductions and removals, and examinations.

Section 16 required all appointing authorities to report to the Commission the

name, title, salary, and start date for each appointee.

Section 17 prohibited the Controller from issuing a salary warrant without

approval and verification by the Commission.

Section 19 stated: any officer, agent, clerk, or employee under the government of

the state shall, directly or indirectly, solicit or receive, any assessment,

subscription, contribution or political service, whether voluntary or involuntary,

for any political purpose whatever, from any one on the eligible lists or holding

any position under the provisions of the act.

Section 20 stated, No one, while holding any public office, or in nomination for,

or while seeking a nomination or appointment for, any public office, shall use or

promise to use, whether directly or indirectly, any official authority or influence

(whether then possessed or merely anticipated) in the way of conferring upon any

person, or in order to secure or aid any person in securing any position under the

provisions of this act, either in nomination, confirmation, promotion, or increase

in salary, or as to any change in position, upon a consideration or condition that

the vote or political influence or action of the last named person or any other,


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shall be given or used in behalf of any candidate, officer or party, or upon any

other corrupt condition or consideration. And no one, being a public officer, or in

nomination for, or while seeking nomination or appointment for, any public

office or having or claiming to have any authority or influence (whether then

possessed or merely anticipated) for the securing or holding of or as to affecting

any position under the provisions of this act, shall use, or promise to threaten to

use, any such authority or influence, directly or indirectly, in order to coerce or

persuade the vote or political action of any person on the eligible lists or holding

any position under the provisions of this act.

88. In 1915, the Commission successfully argued to Governor Johnson to veto a bill that

would have stripped the Commission of all of its investigatory powers. (exhibit E:

Oakland Tribune. June 20, 1915, p. 29.) Commission secretary F.E. Doty of Los

Angeles said the separation of civil service functions and investigations is not

consistent with the practices of the federal government and other states. He reasoned,

If the power to investigate resides in the commission, the commission will be

enabled to prevent scandals. To advertise the fact that the commission is powerless to

enforce its own rules is to encourage secret violations of the law. The bill further

sought to remove the requirement that state officers report to the Commission the

removal of employees and the requirement that such employees be given a reason for

discharge and an opportunity to respond.

89. On June 15, 1919, the Efficiency and Economy Commission on the Civil Service

Commission gave recommendations to Governor Stephens that would require a

governor to appoint two of the three Civil Service Commission members from a

certified list developed by a non-partisan panel comprised of a civil service expert,

Supreme Court justice, and faculty of University of California. (exhibit E: Oakland

Tribune. June 15, 1919, p. 10.) The chairman said the purpose of the Efficiency and

Economy Commission was to achieve accrued efficiency, divorced of political

influence, and raised civil service standards. Governor Stephens did not adopt the

recommendations.


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hours. The legislature ultimately amended the bill to restore the two members.

Without explanation, the original bill landed on the governors desk. Attorney

General A.G. Webb upheld the bill as signed by the governor. ( Id .)

97. In 1927, Governor Young restored the Civil Service Commission to three members.

(Stats. 1927, ch. 719, pp. 1313-1317.)

98. Effective August 14, 1929, all of the duties, powers, responsibilities, and jurisdiction

of the Civil Service Commission transferred to the Department of Finance under the

authority of the Director, a political appointee who served at the pleasure of the

governor. (Stats. 1929, ch. 293, p.597.) Within the Department of Finance, a newly

created Personnel Division was created to administer all existing and future civil

service laws under the direction of the Civil Service Commission. The Civil Service

Commission was to select a Chief of Personnel with the approval of the Director of

Finance. This Chief would be part of civil service with the salary fixed by the

Director of Finance, subject to the approval of the governor. This Chief assumed all

responsibilities of the executive member of the Civil Service Commission.

99. On May 15, 1931, Assembly Concurrent Resolution No. 4 called for the appointment

of a special committee to investigate the Civil Service Commission. (Stats. 1931, ch.

83, pp. 3144.) The legislature made the following findings:

Whereas, The state civil service commission is charged with the duty to classify positions to be held under state authority; andWhereas, It is the function of the state civil service commission to establish gradeswithin the different state departments to the end that proper and equitable salariesshall be paid for similar work in all departments and to designate maximum andminimum salaries for each grade; andWhereas, The said commission is authorized to hold examinations for the purpose of determining efficiency and capability and thereby prepare lists of eligible applicantsfrom which appointments to state service, with certain exceptions may be made; andWhereas, Complaints have been made by certain citizens of the State of California tothe effect that serious misconduct is chargeable against the present civil servicecommission with respect to the holding of such said examinations;

100. Effective August 14, 1931, the governor selected the executive member of the

Civil Service Commission. (Stats. 1931, ch. 1009, pp. 2021.)


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101. On January 6, 1933, two senate committees formed to look into the irregularities

of Governors Rolphs administration and the costs of government. (Oakland

Tribune, January 6, 1933, p. 10.) While these hearings did not lead to an

impeachment or other criminal charges of politicians, they exposed the rampant

corruption of the government hiding in plain site. Primarily, the executive control

over the Civil Service Commission allowed for the continuation of Tammany Hall-

style politics in California. The governors essentially controlled appointments and

exemptions to the civil service act through partisan influence and pressure.

Department heads served at the pleasure of the governor; those who did not do the

bidding of the governor were merely replaced. The exemptions to civil service gave

free reign to the legislature and the governor to cherry-pick friends and political

patrons for appointments and salaries unrelated to merit.

102. On January 10, 1933, Col. Garrison, former director of Public Works; charged

that Earl Lee Kelly, former chairman of the Highway Commission (who later became

director of Public Works), told him that he should solicit funds from subcontractors to

prevent the reelection of a political opponent of the governor. (exhibit E: Oakland

Tribune, January 10, 1933, pp. 1-2.) Garrison testified the brother-in-law tried to

exert pressure on him at a bbq to run a highway through property belonging to

Governor Rolph. Governor Rolph got seven miles of state highway to his road at a

cost of $50,000 per mile.

103. On January 10, 1933, Vandegrift, Director of Finance, was implicated in land

purchase deal where failed to reveal he had bought adjoining property to future state

hospital site. (exhibit E: Oakland Tribune, January 10, 1933, p. 2.) Vandegrift also

entered into 25-year lease at 450 McAllister Street in San Francisco at a cost of

$60,000 per year. (Oakland Tribune, January 11, 1933, p. 1.) He overpaid by a

million. Governor Rolphs son-in-law received $10,000 each year for life of lease

and another player was to receive $6,000 each year of the lease. (exhibit E: Oakland

Tribune, March 22, 1933, p. 9.)


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commission. The people overwhelmingly approved Article XXIV (present-day

Article VII). Article XXIV created a five-person, non-partisan SPB to administer and

enforce all civil-service rules in existence or that would ever be created by the

legislature. Members are appointed by the governor for staggered, fixed terms and do

not serve at the pleasure of the governor. The legislature could pass only those laws

to help facilitate the operation of the SPB.

112. Section 3 (a) of Article XXIV clearly vested the SPB with ultimate authority over

the civil-service system of employment:Said Board shall administer and enforce, and is vested with all of the powers, duties,

purposes, functions, and jurisdiction which are now or hereafter may be vested in anyother State officer or agency under, Chapter 590 of the California Statutes of 1913 asamended or any and all other laws relating to the State civil service as said law maynow exist or may hereafter be enacted, amended or repealed by the Legislature.

Chapter 590 of the California Statutes of 1913 and later amendment vested the

authority to classify and create salary ranges to the civil service commission.

113. From 1913 to the enactment of collective bargaining in 1977, the SPB had

retained its constitutional mandate to establish employee classifications and related

salary ranges without interference from political pressure.

114. Employment, premised on merit, existed since 1913. It was the political influence

and pressure exerted by governors over the civil service commission which allowed

the opening for political patronage and the other evils associated with the spoils

system. A lawmaker from another state facing the same problems as California said,

The administration of the civil service, not the theory, is the biggest fraud in

government. February 23, 1933 (Oakland Tribune).

115. Article XXIV removed all partisan influences and pressures by the governor over

the SPB (formally civil service commission). Pursuant to the constitutional

amendment, the governor and legislature could no longer do any of the following:

Appoint the executive member and set the executives members salary;

Appoint of all or a majority of SPB members during one term;

Appoint a civil-service employee to the SPB;


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Divest the SPB of it functions and place those duties under another

department that answers to the governor;

Divest the SPB of its salary-setting functions to another department that

answers to the governor; and

Authorize the payment of secret salaries.

117. The relevant provisions of present-day Article VII (formally Article XXIV, as

adopted 1934, 1, renumbered 1976 [without substantial change]) are as follows:

Section 1:

(b): In the civil service permanent appointment and promotion shall be

made under a general system based on merit ascertained by competitive

examination.

Section 2:

(a) There is a Personnel Board of 5 members appointed by the Governor

and approved by the Senate, a majority of the membership concurring, for

10-year terms and until their successors are appointed and qualified.

Appointment to fill a vacancy is for the unexpired portion of the term. A

member may be removed by concurrent resolution adopted by each house,

two-thirds of the membership of each house concurring.

(b) The board annually shall elect one of its members as presiding officer.

(c) The board shall appoint and prescribe compensation for an executive

officer who shall be a member of the civil service but not a member of the

board.

Section 3:

(a) 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.

(b) The executive officer shall administer the civil service statutes under

rules of the board.


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FIRST CAUSE OF ACTION

Writ of Mandate (Code of Civil Procedure 1085- 1086)

(Breach of Contract and Violation of art. V, 1)

118. PETITIONER hereby incorporates by reference all of the foregoing paragraphs as

if fully set forth herein.

119. Respondents have a contractual duty to pay me a fixed, monthly salary in

exchange for employee services rendered from February 1, 2009 through March 31,

2011. I performed as required and Respondents repudiated the promise to pay me the

entirety of my fixed salary of appointment. Respondents breach gives rise to a right

to receive damages for 70 days of salary not paid.

120. After appointment to a full-time attorney in exchange for a fixed-monthly salary,

the State issued a Notice of Personnel Action (NOPA), which memorized the terms

of my appointment. A formal notice of appointment is the equivalent of an

employment contract. ( Bd. of Regents v. Roth (1972) 408 U.S. 564, 566, fn. 1.)

121. An appointment is the offer to and acceptance by a person of a position in the

State civil service. ( 18525.) A full-time position or appointment is a position or

appointment in which the employee is to work the amount of time required for the

employee to be compensated at a full-time rate. ( 18550.) Section 18000 requires

the payment of a fixed salary for all services rendered:The salary fixed by law for each state officer, elective or appointive, iscompensation in full for that office and for all services rendered in anyofficial capacity or employment whatsoever, during his or her term of office, and he or she shall not receive for his or her own use any fee or

perquisite for the performance of any official duty.

122. The legislature had approved all terms and provisions of my employment contract

with BU2 before furloughs began. As required by Section 3517.5, all negotiated

terms and provisions were memorialized in a Memorandum of Understanding(MOU) (effective July 1, 2005- June 30, 2007) (Stats. 2006, ch. 28, 1-4, p. 231.)

All terms and provisions remained in effect through March 31, 2011, due to the


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operation of the evergreen clause within Section 3517.8. (Prof. Engineers in Cal.

Government v. Schwarzenegger (2000) 50 Cal.4th 989, 1039-40 (PECG).)

123. The terms and provisions of MOU for BU2 do not require legislative approval in

the Budget Act in order to take effect each pay period. Stats. 2006, ch. 28, section 4

provides: Notwithstanding Section 3517.6 of the Government Code, the provisions of

any memorandum of understanding that require the expenditure of funds shall

become effective even if the provisions of the memorandum of understanding are

approved by the Legislature in legislation other than the annual Budget Act.

124. The monthly, fixed salary of civil-service attorneys, teachers, doctors, dentists,

and podiatrists, in Work Week Group- Salary Exempt (WWG-SE) (exhibit B), cannot

be reduced when not required to work a normal workday. These employees are

salaried, not hourly workers. The salary rules established by CalHR for WWG-SE

provide:If an employee in this subgroup is not required by the appointing power to work anormal workday or part thereof, the employee nevertheless shall receive theregular rate of pay without deduction for the entire pay period.

125. WWG-SE states that: The regular rate of pay is full compensation for all time

that is required for the employee to perform the duties of the position. SEERA is

unconstitutional as applied to the authority it grants the governor and legislature andshould be declared invalid. Employees in WWG-SE are exempt from all FLSA

protections. The state cannot reduce the salaries of employees in WWG-SE for

partial days worked. These employees are ineligible for overtime compensation and

are not required to record hours worked for the purposes of payroll. (exhibit B)

126. As professional employees, attorneys do not have fixed hours due to the

predominately intellectual nature of required work that is not easily measured by the

hour. ( 3521.5.)

127. During furloughs, CalHR never converted employees in WWG-SE to hourly

wage earners and made clear that such employees were still ineligible to earn

overtime compensation. CalHR issued a policy memorandum on February 11, 2009

which stated: WWG SE employees are statutorily exempt from overtime under Vent v. Brown; Case No.: 34-2013-80001576-CU-WM-GDS

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135. Unilateral, unpaid furloughs to salaried professionals in WWG-SE are illegal and

should be declared invalid.

136. Respondents have a lawful duty to pay civil-service attorneys, teachers, doctors,

dentists, and podiatrists in WWG-SE, a fixed, monthly salary even when not required

to work a normal work day.

137. Salaried professionals in WWG-SE rely on a fixed income.

138. A real controversy exists because Governor Brown can furlough members of

WWG-SE at any time, for any reason, for any duration, and for any amount of days

by the issuance of an executive order or memorandum to CalHR. The Director of

CalHR serves at the pleasure of the governor will administer any request made by

Governor Brown.

FOURTH CAUSE OF ACTION


(Violation of U.S. Const., art. I, 10 and Cal. Const., art. I, 9)



140. Public employment gives rise to certain obligations which are protected by the

contract clause of the Constitution; promised compensation is one such protected

right. Once vested, the right to compensation cannot be eliminated without

constitutionally impairing the contract obligation. ( White v. Davis (2003) 30 Cal.4th

528, 565.)

141. Respondents have a constitutional duty not to impair its own contractual

obligations to pay their civil-service employees pursuant to the salary provisions in

the various MOUs. Employees have a constitutionally protected interest in the terms

and provisions of their MOUs from February 1, 2009 to March 30, 2011.

Respondents failed to show a legitimate government purpose to justify a lawful


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impairment of contracts and such impairment caused substantial harm to employees

and the public.

142. Furloughs to the majority special fund employees, like those at the ABC, did

nothing to alleviate the fiscal crisis of the general fund.

143. The Court in PECG made clear it did not decide the issue of the contract clause.

( PECG, supra, 50 Cal.4th 989, 1009, fn. 11.) Before furloughs, governors never had

authority to make unilateral changes to the material terms and provisions of the

MOUs outside of collective bargaining. Layoffs allow governors to control employee

costs in the aggregate. The legislature too can control employee costs in the

aggregate through the reduction of appropriations. Not since the decision in PECG

has the legislature been able to make substantial changes to individual salaries outside

of collective bargaining through a mere appropriation.

144. The ABC reimburses the Controller for the costs to issue salary warrants. The

ABC pays for its own building costs and electricity. Furloughs did not save the ABC

any facility costs because one employee was exempt from furloughs.

145. The ABC always had plenty of work and an unprecedented surplus. Like most

special fund departments, the ABC paid overtime compensation and never stopped

hiring during furloughs.

146. When furloughs began, Governor Schwarzenegger announced he would not

accept any recommendation for alternative savings. In 2009, he infamously said

employees needed to share the pain regardless of funding source. Next he said that

all civil-service employees, except those he exempted, had to lose salary out of

fairness.

147. Governors have the legal authority to implement layoffs and hiring freezes.

148. Governor S said furloughs to special fund employees were necessary to preserve

cash. Governor S wanted the special funds to grow so that the state could save

borrowing costs during budget impasses. Such general fund savings on borrowing

costs was negligible compared to the impairment to salary. In 2010, the general fund

borrowed money in August from outside lenders for about six weeks during the


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impasse. By August 2010, the ABC fund had about $12,000 of my salary. After the

general fund borrows from special funds for temporary use, those special funds get

repaid immediately upon return of money to the general fund. The use of that money

by the general fund amounted to less than $25 in interest savings.

149. On January 30, 2009, the day before furloughs started, the LAO reported that the

salaries of special fund employees needed to be reduced by 10% for the next 17

months to prevent employee migration from one state department to another. The

LAO acknowledged such salary reductions were unrelated to the projected fiscal

crisis of the general fund. (Legislative Analysts Office: 2009-10 Budget Analysis

(Jan. 30, 2009) at

p. GG-7.)

150. As a one-time exception to the Ralph C. Dills Act, the LAO recommended that

the Legislature should adopt the governors plan to disregard thirty years of collective

bargaining and just take the salaries. The LAO acknowledged that layoffs were

lawful for lack of work or lack of funds. However, the LAO preferred the ease of

furloughs over the lengthy statutory process that is required for layoffs to ensure

that more junior workers are the ones most likely to be affected by the layoffs.

(Legislative Analysts Office: 2009-10 Budget Analysis (Jan. 30, 2009) at

pp. GG-8-

9.)

151. The $42 billion deficit cited in EO S-16-08, issued December 19, 2008, did not

actually reflect a true deficit, overstated the problem, and lacked perspective to the

budget as a whole. The emergency was not an existing emergency since it covered a

projected deficit through June 30, 2010. According to EO S-16-08, issued December

19, 2008: . . . there is an approximately $15 billion General Fund deficit for the

2008-2009 fiscal year, which without effective action, is estimated to grow to a $42

billion General Fund budget shortfall over the next 18 months; (exhibit A.)


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152. A fiscal emergency is primarily created by the legislature as it has the ability to

tax and spend. A fiscal crisis cannot justify impairments of its own contractual

obligations. (U. of Haw. Prof'l Assem. v. Cayetano, supra , 183 F.3d 1096, 1105.)

153. The LAO put the legislature on notice back in 2005 that California faced major

operating deficits in the next several years. In 2006, the LAO predicted large

operating shortfalls through fiscal year 2009-2010 .10

In 2007, the LAO warned:Addressing the states current budget problem is even more urgent because weforecast a continuing gap between revenues and expenditures. A plan to

permanently address the states fiscal troubles must involve a substantial portionof ongoing solutions. This is not only because of the persistent operating deficits

projected throughout the forecast, but also because of the downside risks inherentwith the economy, General Fund revenue volatility, and a wide range of

budgetary uncertainties.11

154. The fiscal crisis of the general fund to justify furloughs was not the worse since

the Great Depression. California faced an unprecedented budgetary crisis at the

beginning of fiscal year 19911992 that was more dire than any funding gap faced by

Governor Schwarzenegger. ( Dept. of Personnel Admin. v. Greene (1992) 5

Cal.App.4th 155, 163 (Greene).) Projected revenue for fiscal year 19911992 was

$46.1 billion. 12 Thus, the percent of the deficit to revenues was at 30 percent.

Adjusted by the CPI, $14.1 billion in 1991 equaled 22.5 billion in 2009 dollars.

155. On November 18, 2009, the projected deficit for fiscal year 2009-2010 was $6.3

billion with general fund revenue projections of $89.5 billion. 13 The projected deficit

for fiscal year 2009-2010 represented 7 percent of projected revenues. The projected

deficit for fiscal year 2010-2011 was $14.4 billion and revenue was $87.8 billion.

10 LAO: California's Fiscal Outlook: LAO Projections, 2006-07 Through 2011-12: Large Operating Shortfalls Projected Through 2009-10 , p. 8 (Nov 15, 2006) at < http://www.lao.ca.gov/2006/fiscal_outlook/fiscal_outlook_06.pdf> [as of July 20,2013].

11 LAO: California's Fiscal Outlook: LAO Projections, 2007-08 Through 2012-13 (Nov. 14, 2007) at [as of July 20, 2013].12 LAO: The State's Fiscal Problem (Dec 1, 1991) at < http://www.lao.ca.gov/1991/reports/1291_states_fiscal_problem.pdf > [asof July 20, 2013].

13 LAO: California's Fiscal Outlook: The 2010-11 Budget (Nov 18, 2009) at [as of July 20, 2013].


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( Id .) Thus, its projected deficit represented 16 percent of projected revenue.

Contrasted to fiscal year 1991-1992, the fiscal crisis used to justify furloughs was

likely overstated. The same can be said when the furlough deficits get compared to

the deficits of fiscal years 1991-1994 (See Wirth v. State of Cal. (2006) 142

Cal.App.4th 131, 136 [monumental budgetary crisis at $38.2 billion for fiscal year

2003-2004].)

FIFTH CAUSE OF ACTION

Declaratory Relief (Code of Civil Procedure 1060)

(Violation of U.S. Const., art. I, 10 and Cal. Const., art. I, 9)



157. Unilateral furloughs outside of collective bargaining agreements are

unconstitutional and should be declared invalid.

158. A real controversy exists because governors now use the threat of involuntary

furloughs via executive order or policy memo to extract voluntary furloughs in

collective bargaining.

159. A real controversy exists because the governor can use an executive order or

memo to change the terms of existing MOUs.

160. A real controversy exists because unions must now negotiate for furlough

protection since the governors power to furlough operates outside of collective

bargaining. Unions must now bargain for the amount of salary and then bargain that

the salary bargained for will be the salary actually paid.

SIXTH CAUSE OF ACTION


(Arbitrary and Capricious as applied to the ABC)




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162. Respondents have an obligation to pay the civil-service employees in the ABC the

fixed salaries of their appointment. These employees have a contractual expectation

that the terms and provisions of their employment agreements will be honored by the

appointing authority of ABC.

163. The Court in PECG ruled the governor never had the authority to unilaterally

reduce employee salary.

164. The Court did not decide the issue of special funds.

165. The legislature never reduced any appropriations to the ABC in any budget act.

166. The ABC did not have a lack of work or funds.

167. The only authority given to furlough ABC employees was the self-serving

interpretation of a Supreme Court decision by both governors.

SEVENTH CAUSE OF ACTION

Writ of Mandate or Prohibition (Code of Civil Procedure 1085- 1086)

(Violation of U.S. Const., 5th and 14th Amends. and Cal. Const., art. I, 7,

vent v. brown final amended writ

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