Thursday, July 31, 2008

Executive Order S-09-08: Why You Should Care

Executive Order S-09-08

The Part I Left Out

IT IS FURTHER ORDERED that the Director of the Department of Finance and Director of the Department of Personnel Administration shall work with the State Controller to develop and implement the necessary mechanisms, including but not limited to pay letters and computer programs, to comply with the California Supreme Court's White v. Davis opinion to pay federal minimum wage to those nonexempt FLSA employees who did not work any overtime.

We've been getting phone calls from concerned family and friends wondering what we're going to do once I start earning $6.55 an hour. What people fail to realize is that it is unlikely that I will ever see a paycheck cut for 168 hours at $6.55 an hour. There are a couple of reasons for this:

a. The pay change would not take effect until the pay warrant issued on August 29th. Since 1977, only two budgets were ever signed after August 29th

b. John Chiang, our State Controller, has promised to issue paychecks as usual

c. The process required to change the amount that checks are issued at and then create and issue checks to cover the back pay would probably cost enough to make any savings negligible

d. It really doesn't amount to much more than political posturing on the Governor's part. While I know he does not take kindly to people not following his directives, I'm fairly certain that he's betting this will be a non-issue

What Actually Concerns Me

IT IS FURTHER ORDERED that except for services and functions of state government deemed critical and exempt by this Order, all State agencies and departments under my direct executive authority take immediate action to terminate the services of the following five categories of employees and individuals effective July 31, 2008: (1) Retired Annuitants; (2) Permanent Intermittent Employees; (3) Seasonal Employees; (4) Temporary Help Workers; and (5) Student Assistants.

Why does this matter?

I'm sure that there are a lot of people in the state who do not understand why we hire people into these categories, anyway. Isn't it a waste of money? Why the hell don't we have the people we need, or just buckle down and do it ourselves? Maybe we should quit being "lazy state workers" and keep up with our workload.

The problem is that state work, like all business, is cyclical. There are times when the volume of work would overwhelm an otherwise competent and efficient staff.

For example - the three months out of the year during which Californians file approximately 14 Million income tax returns.

Or the (approximately) six months out of the year when the bulk of the 76.6 Million visits to California State Parks occurred. To handle this influx, California State Parks more than doubles its staff, hiring about 2,700 seasonal staff every summer to help "administer, protect, operate and maintain the State Park System."

Unlike Franchise Tax Board, for whom the bulk of income tax returns have been processed and seasonal help has been laid off for the year, the high season for California State Parks is now. They have 2,700 seasonal employees now. These are the guys that make sure the correct fees are being paid, that bathrooms are cleaned, trash is dumped, grounds are maintained. They make sure the campsite you reserved and paid for is available for your use. They are directly responsible for handling any issues that come up on State Park land. In other words, if someone were, say, drunk and belligerent at the lake while you are trying to enjoy a picnic with your family, a State Park Ranger would be first on the scene. They protect not only California's "extraordinary biological diversity, protecting its most valued natural and cultural resources", they also protect visitors to State Parks and help keep them safe from harm.

I work for a department that issues the bulk of professional licenses in the state. We have an office within our department that does nothing but process checks for the variety of licensing agencies within the department. As you might imagine, they get a lot of mail. They are losing, from what I understand, 9 temporary employees. Their mail staff. The kids that open the mail and get it ready to be processed by cashiers. Yes, the cashiers can (and will) do this themselves. But it takes away from the time during which they would be processing payments. I cannot imagine that we are the only department in the state that issues professional licenses that is going to have this problem.

What does that mean?

It means that if you have or are attempting to get a professional license in the state of California, you can expect the amount of time it's going to take to process your application, renewal or license change to at least double, possibly triple. If your license expires soon (and by "soon", I mean within the next few months), you are going to have a problem. As far as I am aware, there is no professional license issued by the state of California that authorizes a person to continue doing work that would require a license during the time that the person (or business) holds an expired license. For some licensees, continuing to work without a valid, current license is a misdemeanor criminal offense that can result in jail time.


IT IS FURTHER ORDERED that except for services and functions of state government deemed critical and exempt by this Order and emergent situations to preserve and protect human life and safety, all State agencies and departments under my direct executive authority take immediate action to cease and desist authorization of all overtime for employees effective July 31, 2008.

Those employees who would be otherwise able to work overtime to help process the inevitable backlog in something resembling a timely manner are prohibited from doing so.

Unlike previous years, where the employees may be able to work the overtime, but would not get paid for such until the budget had been signed. Now there is to be no overtime work completed whatsoever.

The Sticky Wicket:

IT IS FURTHER ORDERED that except for services and functions of state government deemed critical and exempt by this Order and except for services provided pursuant to multi-year contracts for Information Technology systems and services, all State agencies and departments under my direct executive authority take immediate action to suspend all personal services contracts effective July 31, 2008.

To use an extreme example, those of us in the Sacramento area should be well aware of the Fix I-5 project, which was only recently completed. In order to affect some major structural and safety repairs in a short amount of time, a major artery or Sacramento traffic was shut down completely through the section of heaviest usage. They shut down one direction at a time for a period of about ten days at a stretch, rotating over the course of about two months. The guys responsible for getting this done are the same guys that got the Bay Bridge MacArthur Maze back up in 26 days.

While these guys do awesome work extremely efficiently, they are contractors. The state of California contracts this and companies like it all across the state to complete work that there would otherwise be no way to accomplish.

If this order had been signed and effective just ten days ago, the northbound section of Interstate 5 would remain closed, with no further work being accomplished until the budget was signed. One of Sacramento's arteries would be hopelessly clogged and the commute through the city would remain crippled.

In prior years, as with other services, contracted services continued throughout a budget impasse, but payments were not issued, even if due, until a new budget was signed and in effect.

The Executive Order signed today means that not only will contractors not be paid for their services until the new budget is signed, but all contracted work is to cease immediately.

While the I-5 repair is an extreme example, this affects all state agencies at numerous and multiple levels.

For example, the state uses expert witness to help convict criminals or take disciplinary action against professional licenses. Sometimes, without the testimony of an expert witness to illuminate the violations of law, the state cannot make a case of wrongdoing. Cases have been won or lost on the strength of an expert witness.

Expert witnesses are contracted individuals. They are not employees of the state. The state hires them via contract to provide an opinion in a given case.

They have been instructed to cease work.

This affects not only opinions being written for state agencies, but preparations for hearings as well as testimony at hearing.

All of that must cease.

While a postponement will be requested, it may not necessarily be granted. A judge may be sympathetic to the situation, but the judge is required to follow the letter of the law. If there is no legal reason to postpone the hearing, or the judge feels the legal reason to postpone does not outweigh the legal reason to go ahead as scheduled, the hearing would be conducted without the testimony of an expert witness.

The state will lose cases.

The state cannot protect the citizens of the state of California if it cannot prosecute violators of the law.

Losing expert witnesses costs the state a powerful tool in the prosecution of criminal and administrative violations.

On the Docket for Tomorrow:

Because I am pooped, I will take on the following issues tomorrow:

1. Will state employees strike?

2. Will legislators come back to work before Monday to try and pass a budget?

3. Is this even going to work?

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