Thursday, October 30, 2008

State Engineers Shafted Again

Article VII used to require--although it didn't say so explicitly--that the state could not contract for private employees to do jobs that civil servants could perform "adequately and competently." However, in 2000, the electorate passed Proposition 35, which added Article XXII. Article XXII provides that the State of California and all other governmental entities “shall be allowed to contract with qualified private entities for architectural and engineering services for all public works of improvement.”

This could have been read as simply removing the constitutional limit imposed on state contracting by the civil service provisions of the state constitution. Instead, it's been read as imposing a limit on the power of the Legislature to require that architectural and engineering work be performed by civil servants. The latest casualties are a series of statutes that required Caltrans employees to perform various tasks relating to the construction by the Los Angeles County Metropolitan Transportation Authority of a high occupancy vehicle lane on a state highway. The Court of Appeal (here) held these statutes unconstitutional, deciding that while "
Caltrans may choose to have this work performed by its employees . . . the Legislature cannot mandate that Caltrans do so."

This may be a permissible--or even a faithful--interpretation of Proposition 35. But it does seem odd to say that an administative agency may achieve a result--deciding to do a particular job with state employees--that the Legislature could not compel by statute. After all, in our scheme of government administrative agencies are normally subordinate to statutes enacted by the Legislature. Offhand, I can't think of another example where administrative discretion has been enshrined in the Constitution.

You could almost argue that this would be a revision, rather than an amendment, of the California Constitution, which could not be accomplished by initiative under cases such as Raven v. Deukmejian. It would be interesting to see whether anyone has ever made this argument.

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