Consulting Engineers v. Professional Engineers 6/14/06 CA3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C048282

Case Date: 09/13/2006

Preview:Filed 6/14/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

CONSULTING ENGINEERS AND LAND SURVEYORS OF CALIFORNIA, INC., et al., C048282 Plaintiffs and Respondents, v. PROFESSIONAL ENGINEERS IN CALIFORNIA GOVERNMENT, Defendant and Appellant. (Super. Ct. No. 03CS01654)

APPEAL from an order and judgment of the Superior Court of Sacramento County, Raymond M. Cadei, Judge. Affirmed. Law Offices of Kelley Stimpel Martinez, Kelley Stimpel Martinez; Law Offices of James E. McGlamery and James E. McGlamery for Defendant and Appellant. Stoel Rives and James P. Corn for Plaintiffs and Respondents. Bill Lockyer, Attorney General, Louis R. Mauro, Senior Assistant Attorney General, Christopher E. Krueger, Vickie P. Whitney and Leslie R. Lopez, Deputy Attorneys General, for the Department of Transportation as Amicus Curiae on behalf of Plaintiffs and Respondents.

1

This dispute is another round in a long-standing battle by state employees to prevent the State of California from contracting out to private companies the performance of state services. Armed with the Civil Service Act, article VII of

California's Constitution (article VII), state employees have usually prevailed in the courts because article VII has been interpreted to forbid, in most circumstances, private companies from contracting with the state to perform services that can be accomplished by state employees. The battlefield changed in November 2000, when California's voters approved Proposition 35, adding article XXII to our Constitution (article XXII) to allow the state to contract with private entities to obtain architectural and engineering services for public works of improvement. Proposition 35 specified that

article VII shall not be construed to limit the state from contracting with private companies for such services. The state and Professional Engineers in California Government (PECG), a union representing engineers employed by the state, then entered into a collective bargaining agreement, known as a Memorandum of Understanding (MOU). Among other things, it provides

that, except in extremely unusual or urgent circumstances, the state must make every effort to use state employees to perform architectural and engineering services for public works projects, before resorting to contracts with private companies. In order

to "ensure that [state] employees have preference over contract employees," the MOU contains requirements that make it more difficult for a state entity to contract out for such services. 2

These requirements are contained in what we will refer to as provision 24 of the MOU. In this latest round of the ongoing battle, Consulting Engineers and Land Surveyors of California, Inc., John M. Humber, and Harris & Associates, Inc. (collectively, CELSOC) filed a petition for writ of mandate, seeking to enjoin the implementation of provision 24 of the MOU. In a well articulated ruling, the trial court granted the PECG appeals.

requested relief.

As we will explain, we agree with the trial court's ruling that the terms of provision 24 of the MOU "limit the ability of the State to contract freely for architectural and engineering services," and are "on their face, directly in conflict with Article XXII." We also

conclude substantial evidence supports the court's finding that the implementation of provision 24 would (1) disrupt ongoing public works projects and waste public funds by terminating existing contracts, (2) produce great and irreparable injury to the public and to the parties to existing architectural and engineering services contracts, and (3) result in the loss of benefits that would flow to the public from such future contracts. Hence, we shall affirm the judgment enjoining the implementation of provision 24 of the MOU. BACKGROUND Section 1 of article VII states: "(a) The civil service

includes every officer and employee of the State except as otherwise provided in this Constitution. [

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