The State Worker

Governor lays out rationale for constitutional worker furloughs

2009-11-20T22:12:33Z

Gov. Arnold Schwarzenegger's attorneys have filed their arguments for why employees in departments and agencies run by constitutional officers are subject to the executive's emergency furlough authority.

As you'll recall, Lt. Gov. John Garamendi, Secretary of State Debra Bowen, Treasurer Bill Lockyer, Superintendent of Public Instruction Jack O'Connell, Insurance Commissioner Steve Poizner, Attorney General Jerry Brown and the Board of Equalization did not furlough their employees. Roughly 15,000 employees work under them.

The constitutionals -- except for GOP gubernatorial candidate Poizner -- sued to maintain what they say is a constitutional independence that extends to how they handle staffing. They lost the first round in Sacramento Superior Court and appealed to Sacramento's 3rd District Court.

Click the following link to read the governor's rationale for furloughing constitutional officer employees.

]]> A few of the points laid out in the document:

The governor is the "state employer" with the authority to furlough employees -- including those working under the constitutionals.

The court ruling that opened the door to furloughs obligates the controller to go along with the furlough order and adjust the pay of constitutional officer employees.

Although the governor whacked the constitutionals' budgets by amounts equal to or more than the amounts that would be saved by furloughs, the matter still needs to be litigated because it could arise again.

Click here to read the 54-page file.

More about Whitman's plan to 'skinny down' state government

2009-11-20T19:30:30Z

Get used to this, state workers. The number of California state civil servants will be an ongoing topic, we think, all the way up to the November 2010 election. So far, GOP gubernatorial candidate Meg Whitman has talked about it the most, hence her prominence on this blog, including this post on Thursday.

Bee Capitol Bureau Chief Dan Smith passed along a transcript of an interview Whitman gave on Tuesday to ABC News reporter Teddy Davis. The candidate lays out how she figures the state should drop 40,000 jobs from its payroll:

Click the following link to read an excerpt from the interview.

]]>

ABC NEWS: "I want to talk to you about this theme of cutting spending. You keep coming back to it. It sounds very easy when you talk about it. Isn't there going to be some pain? Won't some popular programs like Healthy Families get cut? What's the pain that's going to come with this? Do people need to realize that it's not going to be purely fat? Is there some that is going to hurt? What's the part that will hurt?"

WHITMAN: "My view is that there are some things that can be done just by running it more efficiently and more effectively, where we can deliver the same amount of services for less, by deploying technology. But what will happen, Teddy, is we'll shrink the number of people who work for the State of California. Today, we have about 350,000 people. Frankly, we need to skinny that down by about 40,000. And so there is real pain. And the way that I came up with that number is I said, 'Okay, what are the revenues to the general fund of the State of California today. And it's about $80 to $85 billion. Right now it's about $85 billion but it's on its way to $80. When was the last time that revenues were about at that level in the State of California? It turns out in 2004-2005. So my next question was, how many more people work for the state of California today? The answer was 40,000. They have hired 40,000 more people."

ABC NEWS: "What's the breakdown of that 40,000 that you see going away?"

WHITMAN: "Basically, what you do is you go back to exactly the number of people you had in 2004-2005. It turns out there has not been much growth in front-line employees - police, firefighters, teachers; much of the growth has been in the bureaucracy up in Sacramento ...

to read the entire transcript. There's also a video download on the site of a 2008 Whitman interview talking about then-presidential candidate John McCain's economic plan.

From the notebook: More from Monday's furlough hearing, part 4

2009-11-20T17:37:11Z

This is the fourth and final installment in our mini-series on Monday's furlough hearings in Alameda Superior Court, presided by Judge Frank Roesch. Click the following links if you need to catch up:

Part 1
Part 2
Part 3

And you can click here to view the most recent Furlough Fights spreadsheet, which details all 23 furlough lawsuits.

The pace of the hearings has quickened. Roesch has told attorneys to avoid retreading ground covered in earlier arguments, and assures them that he'll consider all the points made as he decides each case. Now it's Felix De La Torre's turn to take a swing at Gov. Arnold Schwarzenegger's furlough policy on behalf of SEIU Local 1000.

Other lawyers have argued that the administration should have analyzed, department-by-department, the impact of furloughs before the governor issued his executive order, in keeping with Government Code 19851. De La Torre raises the legal bar higher:

"The governor not only to has to show it doesn't hurt (departments)," he says. "He has to show it does something for them."

Instead, the policy takes a shortcut. "(Schwarzenegger) wanted the most efficient, easiest route," De La Torre says.

Click the following link to read Roesch's compliment (sort of) to Schwarzenegger.

]]> "But you have to give the governor credit," Roesch says. "At least he did something. The Legislature is paralyzed."

De La Torre: "We have (state workers) sleeping in their cars (because of furloughs' impact on their income). And for what? Absolutely nothing."

Roesch asks Tyra to explain the governor's rationale for furloughs and whether he looked at the needs of the various departments.

Tyra says the rationale is laid out in the governor's two executive orders. The reason is "the fiscal well being of the state, which includes the fiscal well being of all state agencies."

And the governor did look at specific department needs. The orders provided for exemptions, Tyra says, including Highway Patrol officers and firefighters. Those two groups needed to remain furlough free because protecting public safety and property was "even a greater need" than furloughing them to ease the budget crisis.

Other arguments made by Tyra and co-counsel Will Yamada:

Union contracts allow for furloughs, according to Judge Patrick Marlette's ruling.
The state's improved financial well being through furlough savings benefits all departments, including those whose employees are paid with money outside of the general fund.

Roesch asks about the California Earthquake Authority, which offers reduced-cost residential property insurance through participating private insurance companies. It receives no money from the general fund, but it wasn't identified by DPA as one of the state's five fiscally untouchable departments.

"If the state has more debts than assets, how does that affect the earthquake authority?" Roesch asks Tyra and Yamada.

The authority still has ties to the larger state government, Tyra says. Their offices are managed by the Department of General Services. Their employees are subject to collective bargaining, which is a function of the Department of Personnel Administration.

Tyra: "To suggest that a (special funds) agency is unaffected (by the state's overall financial health) suggests that there's no relationship whatsoever between the agency and the state." But payroll, facilities management, employee discipline and other functions flow through the rest of government."

A few moments later, someone in Tyra's group hands him a yellow sheet of paper. He glances at it and adds to the list of strings attaching the Earthquake Authority, such as payroll and employee discipline.

Now it's attorney Michael Strumwasser's turn to speak on behalf of the Earthquake Authority. He jabs a finger toward Tyra and Yamada.

"These guys are making it up as they go along," he says.

The authority is a small department with a single office in a private building. It deals directly with its landlord and pays its own utilities, Strumwasser says. It's working toward moving its payroll services from the State Controller's Office.

"Sure, if the state slips into the ocean the CEA's affected." Strumwasser says. "So is Wal-Mart."

The attorneys briefly attack and defend how Schwarzenegger has handled furloughing the Employment Development Department, which the governor furloughed and then declared needed more resources.

Yamada says that the department's heightened workload wasn't related to furloughs, but by the state's economic crisis.

Roesch wraps up the hearing with his signature, "I'll have something in the mail to you."

One of the attorneys who watched but didn't participate in the hearing wants clarification. Does that mean if he misses a letter.from the judge that he'll miss the decision?

Roesch says that the rulings are mailed and posted online. He'll have something soon, "but probably not tomorrow," he says with a smile.

It's 2:40 p.m as about 40 of us funnel through the courtroom door, down the stairs and out to the street..

Whitman's state-workforce plan; Brown on legislative pay cuts

2009-11-19T22:35:49Z

GOP candidate Meg Whitman's plan for shrinking the state workforce appears to have evolved from layoffs to attrition, although the details remain sketchy.

One of The Bee's sister papers, The Tribune in San Luis Obispo, has a story today with this lead:

California GOP gubernatorial candidate Meg Whitman says she would "skinny down the bureaucracy" if she is elected, saving 12,000 jobs a year for three years by not hiring people to replace state employees who leave.

Here's a timeline of Bee reports on Whitman's state workforce cuts:

Click the following link to read the rest of this post.

]]> Feb. 22: Whitman, who was publicly endorsed Saturday by ex-Massachusetts Gov. Mitt Romney, a former business associate, told reporters she would have doubled state furloughs and cut California's government work force by 10 percent. In her speech, she said: "Continuing to raise taxes and fees is simply unsustainable."

Feb. 26: Whitman, the former eBay CEO, last weekend talked about reducing employee "head count" by 10 percent "across the board" and told reporters that Gov. Arnold Schwarzenegger should have doubled the two-days-per-month employee furloughs that started this month.

She figures the state can save $4 billion in five years from attrition, better management and better technology.

May 15: Meg Whitman, who became a billionaire while helping eBay grow to 346 million users, called Thursday for sharply shrinking California's work force by laying off more than 30,000 state employees.

In a luncheon speech to the Roseville Chamber of Commerce and an interview afterward, the Republican gubernatorial candidate and former Silicon Valley CEO repeatedly spoke of slashing "head count" and said she would outdo Gov. Arnold Schwarzenegger in cutting state employee ranks.

On a day when Schwarzenegger proposed eliminating 5,000 state jobs and cutting $9 billion from the budget, Whitman said: "I would do a bigger number of layoffs."

Sept. 22: "I would streamline the number of bureaucrats who work in the government," Whitman told the Bakersfield Californian in July. "There's at least 17,000 midlevel bureaucrats that, I think, need to go because we have a government we cannot afford."

That same day, Whitman talked about shrinking the state workforce with Bee reporter Jack Chang. Here's what she said during a taped interview with Chang: "Part of it (workforce reductions) would be through attrition. Twelve thousand people per year retire from (state) civil service. Basically it would be a hiring freeze."

As the Trib story today notes, Whitman "did not set forth specific proposals for dealing with the gridlocked Legislature, despite questioning."

We asked the Whitman campaign where they got that number and when the attrition plan had surfaced. Spokeswoman Sarah Pompei sent this e-mail:

"Meg has been discussing her plans to trim down the size of the state government bureaucracy since the earliest days of the campaign. Approximately one-quarter of the employees under the Governor's control are 55 and older and are expected to retire or leave government service in the next four years. Therefore, it can be assumed that state government would lose approximately 12,000 workers per year."

In other news, California Attorney General Jerry Brown has announced that lawmakers' pay can be cut starting next month. Click here for Jim Sanders' story about it. Brown is expected to eventually announce he'll seek the Democratic nomination for governor.

IMAGE: Meg Whitman in El Dorado Hills / Hector Amezcua, Sacramento Bee, Aug. 7, 2009

From the notebook: More from Monday's furlough hearing, part 3

2009-11-19T19:30:59Z

This is the third installment in our blog mini-series about what happened on Monday in Alameda Superior Court Judge Frank Roesch's courtroom as lawyers debated state worker furloughs. Click here to read part 1. This link will open part 2.

And you can click here to view the most recent Furlough Fights spreadsheet, which details all 23 furlough lawsuits, including the four cases argued on Monday.

Until now, union attorneys and Gov. Arnold Schwarzenegger's lawyers have done all of the talking. But now it's Harvey Liederman's turn to speak.

A tall and trim man in a navy blue suit, he's representing CalPERS and CalSTRS.

Liederman starts by rebuffing the assertion made by the governor's attorneys that Schwarzenegger's furlough order is an exercise of executive authority that the court shouldn't review. "Courts do it all the time," he says.

Then he picks up on the argument started by CASE attorney Patrick Whalen: Employees whose pay comes from special funds shouldn't be subject to furloughs.

Click the following link to read more.

]]> Liederman's not here to argue on behalf of anyone but his clients. "Was it reasonable to furlough union members at these two funds?" he asks.

There are special funds, he says, and then there are "especially special funds" such as CalPERS and CalSTRS. Their employees are paid from investment earnings, not tax money. Furloughing employees at CalPERS and CalSTRS accomplishes no direct or indirect benefit to the general fund and is therefore irrational, Liederman asserts.

"The Terminator can sweep the machine guns and count the bodies, friend or foe, later," he says. "CalPERS and CalSTRS are collateral damage."

As the courtroom erupts with laughter, Tyra says, "That's disrespectful."

A few minutes later, Roesch says he'll take the matter under submission and looks at the clock. It's 12:15. Lunch time.

At 1:15, Roesch calls Union of American Physicians and Dentists v. Schwarzenegger. Attorney Adam Zapala steps to the podium to speak for the union. Roesch asks him to avoid repeating arguments made earlier by the other attorneys. The cases have a lot of similarities, the judge says.

Zapala agrees, then continues the special funds argument, this time focusing on state employees like those he's representing who are "paid entirely by federal money."

He quotes from Government Code 19851, which says, in part, that the state can change employee hours "to meet the varying needs of the different state agencies."

The governor's across-the-board furlough policy is a "sledgehammer" that fails to take into account things like funding source or outcomes such as delayed services at the state's Disability Determination Services Division. But the law, Zapala says, "requires the government to use a scalpel" and perform "an individualized analysis," when cutting employee hours. That wasn't done, so the furloughs are irrational.

Tyra returns to the "labor parity" argument. The governor doesn't want to have "Employee A sitting right next to Employee B" doing the same work with one on furlough and the other working a full schedule based on "the fortuitous circumstance of how that (furlough-free) position is funded ... The labor parity justification is reasonable."

Yamada notes that the state's research shows that only five departments and 1,200 salaries receive no general fund money whatsoever, a "de minimis" portion of the state work force. "We're talking about a very small segment of employees."

Moments later, Zapala says, it's "certainly not de minimis" to his clients. "It's a 15 percent pay cut."

Tyra:: Across-the-board furloughs are "the height of rationality," and the court's "picking and choosing" who gets furloughed and who doesn't "would violate segmentation of powers."

Roesch takes the arguments under submission. Next up: SEIU Local 1000 v. Schwarzenegger.

CalPERS tightens up employee gift policy

2009-11-19T17:15:24Z

CalPERS has revised its employee gift policy, an early move in the fund's launches a wide-ranging review of its ethical standards. Click here to read the memo to employees. This link will open the policy language.

As Bee colleague Dale Kasler reports today, CalPERS is on a mission to clean up its tarnished image after disclosing a former board member has earned more than $60 million in "placement" fees for helping arrange meetings that led to fund investments. No one has been charged with breaking the law. CalPERS has hired an outside firm to investigate.

The fund has also tightened its policy on placement fee disclosures and supports draft legislation requiring placement agents to register as lobbyists. Controller John Chiang and Treasurer Bill Lockyer, both CalPERS board members, are writing the bill.

Blog back: Pensions, 'pot stirring,' poor spelling

2009-11-18T20:31:00Z

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

Nov. 5 Column extra: Are state workers enabling bad government?

It would be interesting to see a story about how many state personnel have retired or quit due to the furloughs. I'm (sic) my agency the retirees are leaving in droves.

It's difficult to determine why people retire or leave state service. We've been told the state doesn't have a standardized exit interview process. It's clear that an increasing number are leaving and that the pace has picked up since furloughs started. Here's a story we wrote about the phenomenon.

]]> Nov. 5 Pension overhaul measures filed

Pension benefits have been a hot-button issue on The State Worker almost from the first day we launched the blog more than a year ago. As the economy has worsened and pension-change groups have stepped up their efforts to cut back benefits for new hires, it looks like this could become a big political football for the November 2010 election.

A complete and utter violation of the Ralph C. Dills Act. It will never stand judicial muster.

Should the measure make the ballot, there's no doubt that the unions will make every effort to defeat it. Should it pass, the fight will move into the courts.

These guys are the ones who put up the $100,000 pension lists. They get people all worked up because some high-powered managers and politicos get big salaries and pensions, and safety groups get high pension benefits and salaries. Granted safety pay and benefits are extreme, but hey, do you want to guard prisoners all day? Or scrape up the aftermath of a violent wreck?

So this group's attack is on all government workers. The fact is that most workers don't get the high level of benefits and pay they claim. If this initiative passes, good luck hiring and retaining future workers. They should focus on the pay and benefits at the highest levels and not look to kill us all in one shot.

Nov. 9 SEIU staff and state worker trade blows, accusations

A trend surfaced in many of the nearly 100 comments that this post drew: Union supporters generally believed Hamidi is a liar and a self-promoter. Union critics tended to side with Hamidi.

In the grand scheme, how is this story in any way newsworthy? Stop stirring the pot needlessly, Sac Bee. Many state workers are hurting greatly, so why not focus on this, rather than on one mean spirited attention seeker.

The Hamidi story couldn't be ignored. We received more than a dozen e-mails wondering why this blog didn't report events when other news outlets had. (Your humble blogger was out of town.) Some wondered if we were ignoring the news to benefit the union. (No.)

As to newsworthiness, Hamidi is a well-known figure. Union leaders were present when the altercation happened on Local 1000 property. The police were called. We also had information that had not been reported earlier. All of those considerations prompted us to post the item.

Huh! Didn't even know CPPEA existed until now. ... this is a good way to publicize it. Maybe that was Hamidi's true intention?

Ken may be a bit of an odd ball. I think even he would admit to that. However, to miss the vast SEIU conspiracy is to bury your head in the sand. SEIU is about stealing money from state employees. Dues have essentially doubled since SEIU took over from CSEA and representation staff has been reduced by more than 60%. SEIU has yet to negotiate a contract that even comes close to the average CSEA contract and they still are dead last in terms of how their employees are doing compared to the market. ... Hamidi is just trying to get people to pay attention

Nov. 11 Correctional supervisors group files furlough lawsuit

Jon, add another field to that spread-sheet, one more for the road..........

We did. Click here to check it out.

The next comment reminded us of the question raised Monday by Alameda Superior Court Judge Frank Roesch as lawyers for the governor and CCPOA's attorneys argued over furloughs: How can a closed system with a limited number of staff working a limited number of hours absorb furloughs equal to nine 40-hour work weeks per year?

As a personnel supervisor (non-uniformed) at a correctional facility, we were instructed to make our subordinates schedule their furlough days through next June. After doing that, we were later told to begin canceling some of those furloughs, since it was causing a backlog in our workload. My opinion is that I could care less. They want us to be at work 85%, but keep doing 100% of the work? Don't forget that furloughs (as well as the "implemented terms" on CCPOA) have caused a MASSIVE increase in workload with all of the additional calculations and paperwork. We get the 'double-whammy' in that, we are forced to take furloughs, yet deal with the additional volume of work caused by it.

What is going to happen when the Governor makes State Workers live on minimum wage? That is the one thing he hasn't done yet!

The governor can't order that as long as the state has a budget in place with funds appropriated for employee pay, even if the budget is in the red. So, the earliest that this issue might resurface is at fiscal year-end in June.

Nov. 12 The impact of 'Sandwich Thursday'

Why should state employees be criticized for taking the day off with pay, when, by coming up with lame topics like this one, Bee writers are essentially doing the same thing?

Clearly, not every blog post will please every user. Some newspaper readers skip political coverage and go straight to the sports page. Does that mean that no one should write about politics?

Besides, nothing about the blog post criticized anyone for taking a day off, and the story never got off the ground.

We have found from watching blog hit counts closely that these kinds of posts are often among the most popular. Why? Because blogs, unlike news stories, can be more interactive. And let's be honest: How can one reporter find out what's happening at state work sites all over California? It's impossible. We value the comments and observations of State Worker blog users enough to ask what they're seeing and give their observations a voice -- even when they see mistakes on this blog:

"...took today off then normal...". Um, it's "than", not "then". I expect this sort of error from the readers, but not the JOURNALIST who's writing the piece.

An embarrassing slip of the finger, oh sharp-eyed user. We expect better, too. Unfortunately, it's unlikely to be the last such error.

Leg Analyst budget forecast figures no COLAs for state workers

2009-11-18T17:56:56Z

The Legislative Analyst's Office has released its general fund forecast. As expected, the numbers are grim:

... the state must address a General Fund budget problem of $20.7 billion between now and the time the Legislature enacts a 2010-11 state budget plan. The budget problem consists of a $6.3 billion projected deficit for 2009-10 and a $14.4 billion gap between projected revenues and spending in 2010-11. Addressing this large shortfall will require painful choices--on top of the difficult choices the Legislature made earlier this year.

A couple of paragraphs of particular interest to state employees:

Click the following link to read more about the LAO's budget forecast.

]]> From page 4:

No COLAs or Inflation Adjustments Assumed. In the 14 previous editions of this publication, we have assumed that most programs, state employees, and grant recipients receive annual price adjustments and cost-of-living adjustments (COLAs). These COLAs and inflation adjustments meant that prior forecasts were maintaining a "current services" budget--a budget in which the purchasing power of current state expenditures is not eroded by the effects of inflation. The Legislature, however, generally has not provided COLAs in recent years. Furthermore, measures included in the July 2009 budget package specified that most programs, including the universities, the courts, and various social services programs, would no longer receive "automatic" COLAs and inflation adjustments. Based on these recent actions, this year's forecast includes no such COLAs or inflation adjustments. Should the Legislature choose to provide these adjustments in future years, we estimate that the state's annual budget problems would be even greater than those indicated in our forecast--by about $700 million in 2010-11 and, if inflation adjustments were provided each year during the forecast period, by as much as $5 billion in 2014-15.

A little further down, on page 7, this:

Inflation and COLAs. Our forecast reflects a spending level in which current services and the purchasing power of salaries and grants funded by the state will be eroded by the effects of inflation during the forecast period. Under our forecast scenario, for example, most state employees would see no salary increase for eight or more years after receiving their last COLA in 2007. (Such a long wage freeze, we would note, could affect departmental operations negatively in various ways.) As noted earlier, the operating shortfall would be billions of dollars more by 2014-15 if COLAs and inflation adjustments were provided to state programs and employees throughout the forecast period.

On the same page, the LAO assumes the governor will win the furlough fights now in the courts:

Ongoing Court Cases. The state faces many ongoing lawsuits related to prior budgetary actions that could increase the budget shortfall by hundreds of millions or billions of dollars in any given year. Two of the most significant such issues are:

Challenges to the requirement in the 2009-10 budget for redevelopment agencies to make payments totaling $1.7 billion in 2009-10 and $350 million in 2010-11 to benefit the General Fund.

Over 20 lawsuits challenging the Governor's state employee furlough policy, which was budgeted to provide over $1 billion in savings in 2009-10.

On the other hand, if the state were to comply with an anticipated ruling by a federal three-judge panel concerning prison overcrowding, General Fund spending could decline by hundreds of millions of dollars per year.

Click here to download the 44-page LAO budget forecast.

From the notebook: More from Monday's furlough hearing, part 2

2009-11-18T00:17:08Z

This is the second installment about what happened on Monday in Alameda Superior Court Judge Frank Roesch's courtroom as lawyers debated state worker furloughs. Click here to read part 1. And you can click here to view the most recent Furlough Fights spreadsheet, which details all 23 furlough lawsuits.

The mid-morning break ends at 10:45. Attorneys for the governor and CCPOA again stand before Roesch, who asks whether the union had asked for an exemption. Neither side says that they are aware of anything like that. Schwarzenegger lawyer David Tyra notes that CCPOA isn't timid about pressing legal and procedural buttons to get what it wants. "CCPOA is a very active union," he says.

Gregg McLean Adam insists that "the law is being violated right now" because of arguments he made earlier. While 15 percent of CCPOA members may have redeemed all of their furlough hours, "this case is about the other 85 percent." CCPOA isn't even challenging the governor's executive order, Adam says, "We're challenging the implementation."

Roesch takes the matter under submission. "I'll have something for you in the mail," he says.

The CCPOA attorneys step aside as the judge announces the next case, California Attorneys, Administrative Law Judges and Hearing Officers in State Employment v. Schwarzenegger.

Click the link below to read the rest of this post.

]]> Attorneys representing the State Controller and the California Earthquake Authority cluster near CASE attorney Patrick Whalen, who is standing behind a podium on my left. Schwarzenegger attorneys Tyra and Will Yamada stand next to a podium on my right. They won't be moving for a while. This is only the second of four lawsuits they're arguing on behalf of the governor.

Harvey Liederman, representing CalPERS and CalSTRS, stands to Whalen's right, not quite halfway between the opposing parties.

CASE is arguing that special fund agencies shouldn't be subject to furloughs, especially those that take no general fund money and whose money can't be loaned out to the general fund. The state says that there are five departments or agencies that fall into this category. CASE figures that there are 13.

Whalen says that state law allows the borrowing of special-fund department money, "but only if it has no impact to the lending program. For anyone to deny that closing three days per month has no impact is nonsensical."

Whalen refers to questions he put to more than 60 state agencies and departments, asking how furloughs have impacted operations. "Seventeen said that backlogs and workloads increased since furloughs' inception," he says. Overtime and outside legal contracting is up, and state income tax from state payroll is down.

Whalen's conclusion: Furloughs haven't saved the state money. Instead, the policy has "cost the state tens of millions of dollars." They're irrational and unreasonable because they damage government and the needs of each department weren't considered with the across-the-board furlough order.

Roesch asks, "Doesn't the governor's emergency power have to be limited to the emergency? What was the emergency? I don't know. If it's a recession that lasts two years, how can that be an emergency?"

Tyra says the economy's collapse, the banking crisis, California's foreclosure crisis and more had created an emergency for state finances so severe that the Controller had to issue IOUs: "There was no money in the (state's till)."

And when will it end? "Not any time soon," he says, pointing to the governor's recent remarks that the state's revenue is already $7 billion below projections for this fiscal year.

Roesch: "So is it an emergency if we can't see that it will end? When does it change from an emergency to this is the way life is?"

Tyra argues that CASE is trying to usurp the governor's power: "(CASE is saying), 'We don't like the way the governor exercised his authority, so we'll just come in here and second guess him.' It's not a matter of, 'If I'd been in the governor's chair, I'd have made a different choice.'"

The across-the-board order, with a few neccessary exceptions such as CHP and CalFIRE, is perfectly rational "to maintain labor parity," Tyra says.

The logic: The governor, as the state employer, deals with employees by bargaining unit, not by funding source. Since most departments get at least some money from the general fund and other sources, parsing furloughs by origin of payroll funding would create a situation where employees doing exactly the same job would suddenly have different working conditions because some would be furloughed and others wouldn't.

That would create an untenable workplace environment, Tyra said.

"It certainly is reasonable (for the governor to conclude), 'To avoid this I'll have a 'shared pain' approach," he said. "Whether that is so beyond the bounds of reason, that standard hasn't been met here." The order met the overall financial needs of the state, which made the order "a reasonable act of discretion."

Yamada noted that 49 of 54 departments analyzed by the state had "borrowable funds" and the the Legislature (which has authority to set state employee pay), agreed to a budget that included savings equal to three across-the-board furlough days per month.

That brings Roesch back to the emergency question: "Why is it that an emergency can last 17 months when the Legislature goes to work every day? Where is the boundary of what the governor can do when the repository of this power (to set employee pay) rests with the Legislature?"

Moments later, Roesch reframes the question to Tyra: "How do you define emergency? What is an emergency? Anything bad that happens?"

Tyra: "An emergency doesn't have to be limited by duration."

Tyra circles back to the question of whether furloughs have harmed government to the extent that the policy should be reversed.

"(CASE) has to show harm to the public. It's not enough to suggest that employees will have to work a little harder to keep up production. Inconvenience is not synonymous with harm or damage to the agency."

Next: Harvey Liederman compares furloughs to machine gun fire and talks about "extra special fund" agencies.

New Bee state employment interactive goes live

2009-11-17T23:25:32Z

It's been 10 months since Gov. Arnold started furloughing workers. Meanwhile, the number of full-time state employees has continued to increase, mitigating some of the savings from the furloughs. Use this interactive site, built by Bee colleague Phillip Reese to track state wages and payroll, hiring and the number of part-timers.

Listen to CalPERS board candidates talk about CalPERS, pensions

2009-11-17T22:57:18Z

CalPERS Board of Administration candidates Cathy Hackett and J.J. Jelincic made a Monday appearance on Jeffrey Callison's public radio show, Insight, on KXJZ (90.9 FM). If you missed it, click here to download the podcast. The discussion starts about 12 minutes into the show.

The discussion touches on the role of placement agents, the fund's investment strategy, the board's responsibilities to members, changes that the candidates want to see, corporate governance policies, the fund's viability and more.

Watch this blog for video interviews we've lined up with Hackett and Jelincic. And remember, board election ballots have to be in to CalPERS by Dec. 4.

From the notebook: More from Monday's furlough hearing, part 1

2009-11-17T20:15:11Z

We never get all of what we learn into a news story like today's piece on Monday's furlough court hearings. Fortunately, this blog can give users items of interest from the notebook.

The court hearing is in Alameda Superior Court's Department 31, a 30-foot by 40-foot room up one flight of marble steps above the Post Office on 13th and Jackson streets in Oakland.

There's no jury or witness box in the cramped room and less than 30 seats for observers. About 50 people are packed into the space when I arrive at 9:05. By the suits they're wearing, I assume most are lawyers. A few SEIU workers have come out in their purple shirts. It looks like I'm the only journalist. I stand for all the hearings; there's no place to sit.

A court clerk enters the stuffy, stuffed room with a stack of documents that looks about 3 feet high and balances them on the bench. Judge Frank Roesch enters a few minutes later. He's wearing rimless glasses and has a salt-and-pepper goatee. He's self-effacing: As the audience starts to stand, he chuckles and motions everyone to stay seated.

Roesch quickly moves through four or five cases involving individuals. One woman finds out that her check will be garnished $80 per month to pay a $3,500 debt. A couple of litigants are no shows. The 3-foot stack loses six inches.

Then the judge calls out CCPOA's attorneys and Schwarzenegger's lawyers. It's 9:45 a.m.

Click the following link to read quotes from the CCPOA hearing.

]]> Roesch is frustrated with statistics presented by both sides that say that deferred furlough time off will never be entirely redeemed (CCPOA) or that Corrections has stepped up burning down furlough time and it should all be cleared up by June 30, 2012 (the administration).

Roesch on the stats: "This is a closed system with a set number of employees and a set amount of time off. No statistic has answered the question of how the Department of Corrections can absorb 46 (furlough) days per employee. That's more than nine weeks ... That's the biggest question that I have."

CCPOA attorney Gregg McLean Adam argues that furloughs for correctional officers are illegal because the time off must be taken within the same pay cycle, but COs have accumulated more than 1 million hours of furlough time. And furlough credits have no cash value, but the law says pay must be rendered in cash.

Adam on deferred time off: "There are legal consequences if (furlough time on the books) expires (by the June 2012 deadline). The state has a duty to pay employees monthly and furlough time must be taken off during the pay period ... Otherwise, the state could put off its obligations to pay indefinitely ... What if they issue a memo tomorrow (putting off the redemption deadline) to 2015?"

Schwarzenegger attorney Tyra says that 15 percent of Bargaining Unit 6 employees have no furlough time on the books and that CCPOA hasn't proven that there's a problem with redeeming the rest by the 2012 deadline. CDCR is working hard to get the time down, and if someone has time left on the books after the deadline, they can sue.

Tyra on unredeemed furlough time off: "(Employees) can file a claim for nonpayment of wages. (The labor code) provides for recovery of wages. (CCPOA) is looking to invalidate an entire statewide program. Their declarations don't show a connection between furlough (staff) reductions and the inability to get the time back."

A few minutes later, after a discussion about how correctional officers don't work conventional 40-hour weeks, Roesch again asked about the impact of furloughs on the system: "How does a closed system ... how does that system take away 13 1/2 percent of that staff without at some point having to increase staffing?"

Tyra's response: "People are taking a lot of time off. There's time within the system. We're paying down the bank of furlough credits."

Attorney Will Yamada, who is also representing Schwarzenegger follows up: "(CDCR has) taken over 1 million hours off the books."

A few more comments and then arguments end. It's 10:30 a.m. Roesch calls for a break before calling the next case, CASE v. Schwarzenegger. We'll post our notes on that next.

More from Monday's furlough hearings, national news of state worker interest

2009-11-17T14:31:02Z

Our recommended links on the right side of this page include a piece on Monday's furlough lawsuit hearings in Alameda Superior Court ... In case you missed it, colleague Dale Kasler has a story about how recent investments have hurt CalPERS' image ... New Mexico state workers will take furlough days on Christmas Eve, New Year's Eve and several other days that will stretch holiday weekends ... Pennsylvania is getting ready to whack more state worker jobs ... AFSCME opposes an Illinois plan to sell a prison ... Speaking of Illinois, the Chicago Tribune reports that one of the state's highway projects is (gasp!) under budget. Maybe.

Unions blast furlough order

2009-11-16T21:05:31Z

From Jon Ortiz in Oakland:

OAKLAND -- Lawyers representing state worker unions and a few government agencies pounded away at Gov. Arnold Schwarzenegger's furloughs for the better part of three hours this morning in Alameda Superior Court, arguing that the policy is illegally harming the government, an overreach, a violation of minimum wage laws and outrageously irrational.

And that was in just two cases brought by California Attorneys, Administrative Law Judges and Hearing Officers in State Employment and California Correctional Peace Officers Association to Judge Frank Roesch's Oakland courtroom. SEIU Local 1000 and Union of American Physicians and Dentists will argue their cases this afternoon.

Roesch took both cases under submission and he'll probably do the same with those he hears this afternoon, which means he's going to think about what he's heard and issue a ruling later. That could take several days or several weeks.

What came across this morning from Roesch's questions is that he wonders whether the "emergency" that triggered Schwarzenegger's executive order is really an emergency. At several junctures he asked Schwarzenegger attorneys David Tyra and Will Yamada to define the word. At one point the judge asked, "How can you have an emergency that's 17 months long?" Schwarzenegger's furlough order, which took effect in February, expires in June.

As attorneys debated whether special fund departments and agencies should be furloughed - the two sides can't agree on whether there are five or 13 departments that receive no general fund money and whose money is untouchable for borrowing - CalPERS and CalSTRS attorney Harvey Liederman likened the indiscriminate nature of the policy a scene from one of the governor's films.

"The Terminator can sweep the machine guns and count the bodies, friend or foe, later," he said. "CalPERS and CalSTRS are collateral damage."

As some in the courtroom laughed and talked over each other, Tyra said, "That's disrespectful."

Court resumes at 1:15. We'll have more for you later.

State worker says cuts will turn 'R' in CDCR into 'Recidivism'

2009-11-16T19:47:29Z

Gunnar Jensen, CDCR teacher working at the Corcoran State Prison's Substance Abuse Treatment Facility, read our recent blog coverage of cuts planned for the prison system's teaching corps. He decided to write a letter to the governor and other elected officials. He sent a copy of the form letter to The State Worker and, with Jensen's permission, we're posting it here, unedited.

Jensen is speaking for himself, not his department or his fellow employees.

November 6, 2009
The Honorable

I am sending this letter to urge you to do what you can to stop the planned layoffs of nearly 800 prison teachers, statewide. By limiting educational opportunities for offenders, this act will cost far more money than it could ever save.

While there exist few longitudinal studies to support education's positive role in reducing recidivism1, we know that completing high school requirements through the General Education Development (GED) instruction and testing program has opened doors to employment for thousands of people in our state. If we truly wish to provide rehabilitation in our prisons, we must make available every opportunity for offenders to achieve this goal before paroling or returning to society after serving their sentences.

During my experience teaching in prison, I have encountered many inmates who are keenly aware of what earning a GED will mean for their future prospects of staying out of prison. Many have told me they do not want to return (to prison), and that earning their GED is the key to making that possible. Without a GED, re-violating is almost inevitable.

Please understand that academic Instructors working for the Department of Corrections and Rehabilitation are the "R" in CDCR. Without them, that "R" will likely come to represent "Recidivism".

Click the following link to read the rest of Jensen's e-mail.

]]> I know these are difficult times. I know you have much to contend with. However, I hope you can see that retaining California's correctional educators is an important and vital investment that saves our state's resources. Those leaving prison with limited opportunities are at much greater risk of returning. When they do, the very negative ripples that follow touch families and eventually entire communities.

Please do what you can to retain the current level of educational opportunities for California's inmates. Thank you for your efforts.

Very truly yours,

*One of the few studies available can be viewed @-- http://www.ceanational.org/PDFs/3StateFinal.pdf