The State Worker

Editor's note Dec. 21 at 9:44 p.m.: The missing link to the State Compensation Insurance Fund post has been fixed.

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

Dec. 17 CCPOA wins Alameda lawsuit; read the court document

Before folks get too excited, they need to read the decision. The judge based his decision on the fact that the correctional officers were usually unable to take their three furlough days in the same pay period in which their pay was reduced, resulting in them working three extra days a month for no pay. Footnote 3 on page 7 of the decision explicitly states that the issue of the Governor's authority to issue the Executive Orders implementing the furloughs was not before the court, although, "[t]he Executive Orders themselves appear to recognize that the emergency necesitating the furloughs was the failure to pass the budgets, though the reach of those orders extended long after those budgets were passed and signed into law." The footnote gives us stateworkers (sic) hope, but the decision did not decide the legality of the Executive Orders.

The commenter has identified a trend in recent furlough arguments: Attorneys are turning their attacks on furloughs away from the issue of executive power to order undpaid days off in favor of more narrow arguments about the process.

This makes sense, one union attorney told us, because early on the issues were still being framed. "No one had ever litigated this before," the attorney said.

But now union lawyers have seen what works and they've refined their arguments.

Take CCPOA's win last week. The union's case has some of the same elements as one the union lost in February before Judge Patrick Marlette in Sacramento Superior Court. Click here to read that petition. The Alameda argument brings in more law, however, and persuaded Judge Frank Roesch to partially grant the union's petition. Click here for his decision.

But no judge has yet said that governor's can't furlough employees. They've said that some can't be furloughed (see this post about the State Compensation Insurance Fund decisions) or that they've been furloughed incorrectly (CCPOA).

And those are questions of process, not power. CalPERS argued in its lawsuit (click here to download a copy), among other things, that the governor doesn't have furlough power. The fund lost the argument last week, as we reported here.