From: CASE@calattorneys.

org
To: CASE@calattorneys.org
Sent: 11/12/2010 1:57:25 P.M. Pacific Standard Time
Subj: Update 11/12/2010

November 12, 2010

Dear Member of Bargaining Unit 2:

CASE has received many inquiries from members about the status of
furloughs, bargaining, and other issues related to the incoming
administration. While there is still a great amount of uncertainty, we
want to continue to share with you the information that is presently
available.

Furloughs

With respect to furloughs, many of you are aware that the most recent
Executive Order and DPA’s Personnel Management Liaison Memo (PML)
state furloughs will continue until the Department of Finance certifies
that there is sufficient cash for the State to meet its obligations. CASE
is currently attempting to gather sufficient evidentiary support to
persuade a court that the Department of Finance is arbitrarily refusing
to issue such a certification. If and when that evidence is obtained,
CASE will take appropriate legal action.

In the SCIF furlough appeal, which was the first of several cases in
which CASE successfully argued that the furloughs were illegal, the
Supreme Court recently transferred the case back to the First
Appellate District for reconsideration in light of their recent opinion.

In addition, the First District Court of Appeal recently asked CASE for
supplemental briefing in our “special fund” furlough case pending in
that court. As you may recall, that was the case in which Alameda
County Superior Court Judge Roesch agreed with us that the furloughs
are illegal, and ordered back pay. The appellate court has requested
supplemental briefing on the impact of the Supreme Court’s recent
furlough decision. Based on the briefing schedule, it is unlikely the
case will be set for oral argument before the end of this year.

The “constitutional officers” furlough case is still pending in the Third

District Court of Appeal. Given the recent California Supreme Court
decision and the additional budget cuts imposed against the
departments of the constitutional officers, it remains unclear whether
furloughs will be imposed in those offices or not.

Clearly, the issue of furloughs is as much a political issue as it is a legal

one. Governor-elect Brown has publicly stated his opposition to
furloughs, and when he takes office on January 3, 2011, he would
certainly have the power to rescind or modify any executive orders
then in place. However, it is also true that the State is once again
facing an enormous budget deficit for FY 2011-2012. The recent LAO
report pegged it at $25 billion – even larger than last year’s deficit
which led to a record budget stalemate. The poorly crafted budget
that was passed last month relied in part on revenue savings from
employee compensation cuts, including furloughs, so it is unclear how
that might impact any decision by the incoming administration. An
independent audit released only the other day found a glaring $6.1
billion hole in the State’s current 2010-2011 budget, necessitating the
scheduling of a December emergency Legislative session.

In addition, the passage of Proposition 25 substantially changes the

dynamics at the Capitol with regard to the passage of a budget, and it
remains unclear how the new majority budget provision will impact the
Legislature’s ability to deal with the State’s fiscal problems.

CASE is becoming increasingly concerned that members may find

themselves in a position where the State’s fiscal mismanagement will
force them to choose between honoring their independent ethical
obligations as legal professionals and the instructions of their employer
to provide the same level of legal work with 15% less time to complete
the work, and with 15% less pay for performing that same amount of
work. Any member who finds himself or herself in such a position is
encouraged to document the specific ethical violation(s) the State’s
actions are creating, and contact CASE at info@calattorneys.org.

Bargaining

DPA has refused to respond to CASE’s various proposals and inquiries

for more than a month. Our sources have told us that many
employees at DPA are currently focused on seeking other employment,
as there is widespread speculation that the new administration will
change some of the staff at DPA.

It is unclear whether the State is even capable of negotiating a new

contract before the end of this year. Assuming for the sake of
discussion that the outgoing administration is willing to negotiate, the
practical reality is that no deal could become effective until after the
first of the year. This is because the Legislature is currently not in
session and, even with the upcoming emergency session, it is
extremely unlikely that the Legislature would be able to ratify any MOU
until the January session – and even that process is likely to take
several weeks, under the best of circumstances. Accordingly, even if
CASE and DPA could come to terms (which has proven to be extremely
unlikely under this administration) there would be no effect for several
months.

As CASE members, each one of the Board of Directors is troubled by

the great lack of certainty currently facing our members. After years
of suffering from a pay disparity in which the State’s legal
professionals are paid 20%-50% less than other public sector attorneys
and judges (many of whom have lower caseloads, better benefits and
better pensions) the State has compounded its mistreatment of Unit 2
Members by continuing to insist on furloughs which have been
demonstrated to cost the state more money than they save in many
instances.

It is also true that the State is using the professionalism of our

members against us. The vast majority of our members have
continued to perform their work admirably despite decreasing pay and
increasing caseloads. It has not gone unnoticed by the State that it
can continue to underpay its legal professionals, and then furlough
them on top of the already low salary, and still get superior legal
services at a tremendous discount. Unfortunately, Unit 2 members
work for an employer that 1) is fiscally dysfunctional, 2) is effectively
bankrupt, and 3) does not appreciate the valuable work Unit 2
members do on behalf of the People of the State of California.

For those of us who have elected the profession of public service, it is

indeed disconcerting that the State is doing everything it can to punish
those who have made public service their career. <<California>> is
doing everything possible to discourage quality legal professionals
from coming to work for the State. The long-term consequences of the
State’s decisions – like so many other decisions it has made recently –
will undoubtedly be costly. We will be working diligently with the new
administration to make sure it understands the value of the work
performed by Unit 2 members, the fiscal sacrifices already made by
the State’s legal professionals, and our willingness to work together to
help redress the inequities facing both California and Bargaining Unit 2.

We will continue to keep you informed as further information becomes

available.

As always, your support of CASE and your colleagues in Bargaining Unit

2 is greatly appreciated.

Sincerely,

The CASE Board of Directors