State of California (Department of Personnel Administration) (PERB 0787S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

STATE OF CALIFORNIA (DEPARTMENT OF
PERSONNEL ADMINISTRATION) ,

Case Nos: S-UM-366-S (S-SR-1)

Employer, S-UM-371-S (S-SR-11)
S-UM-377-S (S-SR-20)

and S-UM-411-S (S-SR-7)

CALIFORNIA STATE EMPLOYEES

ASSOCIATION,
PERB Decision No. 787-S

and
January 11, 1990
CALIFORNIA UNION OF SAFETY
EMPLOYEES,

Employee Organizations.

Appearances: Edmund K. Brehl, Attorney, for Department of
Personnel Administration; Howard Schwartz, Attorney, for
California State Employees' Association; Sam A. McCall, JUr.,
Chief Legal Counsel, for California Union of Safety Employees.
Before Hesse, Chairperson; Craib, Shank and Camilli, Members.
DECISTON

CAMILLI, Member: This case is before the Public Employment
Relations Board (PERB or Board) by order of the Board itself.
Five unit modification petitions were filed with PERB on
March 30, 1987 and March 23, 1988, by the Department of Personnel
Administration (DPA). These petitions seek to exclude seasonal
lifeguards from units on the ground that they were not state

employees under the definition stated in the Ralph C. Dills Act

(Dills Act or Act).* In support of the petitions, DPA relies

‘The Dills Act, formerly State Employer-Employee Relations
Act or SEERA, is codified at Government Code section 3512 et seq.
All statutory references are to the Government Code unless

primarily 	on the 	Board's 	decision 	in 	Unit 	Determination 	for 	the
State of California 	(1981) 	PERB Decision No. 	ll0d-S. 	In the
original unit determination, 	the parties were unable to agree
upon a 	clear definition of 	"civil 	service 	employee" 	because,
although they had researched the question at 	length, 	there were
so many 	exceptions 	that the term evaded 	a 	clear definition. 	The
evidence put 	forth by 	the 	parties 	was 	testimony regarding 	indicia
of a civil 	service employee or, 	conversely, 	a non-civil 	service
employee. 	On this basis, 	certain employees were 	found not to be
covered under 	the 	Dills 	Act 	because 	they did not 	have 	the proper
indicia of 	civil 	service 	employee 	status.
In the present petitions, 	California Union of Safety
Employees 	(CAUSE) 	has raised an argument which has 	not been
previously considered. 	CAUSE 	argues 	that 	PERB 	Decision No.
ll0d-S, upon which DPA relies, 	was 	an unconstitutional
otherwise 	stated.
"State employee" 	is defined in section 3513(c) 	as:
. 	. 	. 	any civil service employee of the
state, 	and the teaching 	staff of 	schools
under the 	jurisdiction of 	the 	Department 	of
Education or 	the 	Superintendent 	of Public
Instruction, 	except managerial employees,
confidential 	employees, 	employees of the
Department 	of 	Personnel Administration,
professional 	employees 	of 	the 	Department 	of
Finance 	engaged 	in 	technical 	or 	analytical
state budget preparation other 	than the
auditing staff, 	employees 	of the 	Legislative
Counsel Bureau, 	employees of the board,
conciliators 	employed 	by 	the 	State
Conciliation 	Service within the 	Department 	of
Industrial Relations, 	and intermittent
athletic 	inspectors who 	are 	employees 	of 	the
State Athletic 	Commission.
22

interpretation of the Act. 	Article VII 	section 	l(a) 	of the
California Constitution 	states: 	"Civil 	service 	includes 	every
officer 	and 	employee 	of 	the 	state 	except 	as 	otherwise provided 	in
this 	Constitution." 	Article VII 	section 4 	goes 	on to 	list
exemptions 	from civil 	service.2
2Section 4 	of the California Constitution 	states:
The 	following are 	exempt 	from civil 	service:
(a) 	Officers 	and employees 	appointed or
employed by the Legislature, 	either house, 	or
legislative committees.
(b) 	Officers 	and employees 	appointed or
employed by councils, 	commissions 	or public
corporations 	in the 	judicial branch or by a
court 	of 	record or officer thereof.
(c) 	Officers 	elected by the people and a
deputy 	and 	an 	employee 	selected by 	each
elected 	officer.
(d) 	Members of boards and commissions.
(e) 	A deputy or employee 	selected by 	each
board 	or 	commission 	either 	appointed 	by 	the
Governor 	or authorized by 	statute.
(f) 	State 	officers 	directly appointed by the
Governor with or without 	the 	consent 	or
confirmation of 	the 	Senate 	and 	the 	employees
of the Governor's 	office, 	and the employees
of 	the 	Lieutenant Governor's 	office directly
appointed 	or 	employed 	by 	the 	Lieutenant
Governor.
(g) 	A deputy or employee 	selected by 	each
officer, 	except members of boards and
commissions, 	exempted under Section 4(f).
(h) 	Officers 	and employees 	of the University
of 	California 	and 	the 	California 	State
Colleges.
(i) 	The teaching 	staff 	of 	schools under the
jurisdiction of 	the 	Department of 	Education
W	
3

On December 	1, 	1988, 	the Board itself, 	pursuant to PERB
Regulation 	32215,3 requested 	that 	the 	parties 	submit written
argument 	on the question of how 	section 	3513(c) 	should be
interpreted, 	given the language of Article VII, 	sections 	l(a) 	and
4 	of 	the 	State Constitution, 	or upon what authority the
constitutional 	provisions 	should be 	held 	not 	to 	be 	controlling.
or the 	Superintendent 	of 	Public 	Instruction.
(j) 	Member, 	inmate, 	and patient help in
state homes, 	charitable or correction
institutions, 	and state facilities for
mentally 	ill 	or retarded persons.
(k) 	Members 	of 	the militia while 	engaged 	in
military 	service.
(1) 	Officers 	and employees 	of district
agricultural 	associations 	employed 	less 	than
6 	months 	in a 	calendar year.
(m) 	In addition to positions 	exempted by
other provisions of this 	section, 	the
Attorney General 	may 	appoint 	or 	employ 	six
deputies 	or employees, 	the Public 	Utilities
Commission may appoint 	or 	employ one deputy
or employee, 	and the Legislative Counsel may
appoint 	or 	employ two deputies 	or 	employees.
3PERB 	Regulations 	are 	codified 	at 	California Administrative
Code, 	title 8, 	section 31001 et seq.
Regulation 	32215 	states:
A Board 	agent 	shall 	issue 	a written proposed
decision or 	submit 	the record of 	the 	case 	to
the 	Board 	itself 	for decision pursuant 	to
instructions 	from the 	Board 	itself. 	The
Board 	shall 	serve 	the proposed decision on
each party. 	Unless 	expressly adopted by the
Board 	itself, 	a proposed or final 	Board agent
decision, 	including supporting rationale,
shall be without precedent 	for future 	cases.
44

(State 	of 	California 	(Department 	of 	Personnel Administration)
(1988) 	PERB Order No. 	Ad-176-S.)
POSITION OF
CALIFORNIA UNION OF 	SAFETY 	EMPLOYEES
CAUSE argues 	that PERB Decision No. 	ll0d-S 	is
unconstitutional 	and 	should not be 	relied upon. 	In 	support 	of
this 	argument, 	CAUSE 	refers 	to 	former Constitutional Article
XXIV, 	section 4, 	the precursor to the present Article VII.
Former Article XXIV was 	not 	changed 	substantially, 	but 	included
language under 	subsection 	(b) 	which gave the Legislature the
power 	to 	return 	certain previously 	excepted positions 	to 	state
civil 	service. 	It went on, 	however, 	to 	state that no exceptions
could be 	revived 	as 	to 	any positions 	which were 	included 	in 	the
state 	civil 	service under this 	subdivision. 	When new positions
or 	classifications were authorized by 	law, 	they were 	to be
included 	in the 	state 	civil 	service 	system unless 	they had
previously been excepted under 	section 	4. 	The 	exemptions
currently listed under Article VII, 	section 4 	(enacted June 	8,
1976) 	do 	not 	specifically 	include the group of 	employees which
DPA desires 	to 	exclude 	in this 	unit modification petition
(seasonal 	lifeguards). 	CAUSE then points 	to indicia of
legislative 	intent 	contained 	in a ballot pamphlet, 	contending
that 	the pamphlet made 	clear 	that 	the 	Legislature would be
prohibited 	from 	exempting 	any 	group 	from 	the 	merit 	system 	of
employment, 	although most 	exempt 	classes 	could be 	included by
future 	legislative 	act.
55

Furthermore, 	CAUSE 	contends 	the Legislature 	enacted the
Dills Act with the merit principles 	of Article VII 	of 	the
Constitution 	firmly 	in mind 	and 	fashioned 	the 	statutes
specifically 	to 	avoid 	any 	conflict with 	the 	Constitution.
(Pacific 	Legal Foundation v. 	Brown 	(1981) 	29 Cal.3d 	168.) 	The
Constitution and the Dills Act are not 	in conflict, 	but rather
should be 	interpreted harmoniously, 	as 	each 	carries 	out 	and 	looks
toward a different purpose. 	The Constitution is 	the 	controlling
authority, 	and 	judicial 	decision cannot 	supersede 	that authority.
Therefore, 	even if there was 	conflict, 	the Constitution would
nonetheless 	control. 	Because 	the 	administrative 	decision 	in PERB
Decision No. 	ll0d-S 	is 	clearly repugnant to the Constitution, 	it
is CAUSE'S position that 	it cannot 	stand. 	(Wright v. 	Compton
Unified School District 	(1975) 	46 Cal.App.3d 	177, 	at p. 	184 and
Noce v. 	Department of Finance 	(1941) 	45 Cal.App.2d 5, 	at p. 	10.)
POSITION OF
CALIFORNIA STATE 	EMPLOYEES' 	ASSOCIATION 	(CSEA)
CSEA contends 	that PERB 	Decision No. 	ll0d-S 	was 	incorrect
because 	it held that, 	although 	certain employees were not 	in the
constitutionally 	exempt classes, 	they were not 	"civil 	service"
employees. 	CSEA argues 	that a plain reading of 	the Constitution
and 	related 	case 	law 	shows 	that 	the 	Board 	incorrectly
interpreted, 	and added to, 	the 	statutorily 	limited number of
specified 	exempt 	classes. 	Since the 	constitutional 	definition of
civil 	service 	is 	binding upon PERB when defining 	civil 	service
under the Dills Act, 	and because a 	statute must be 	construed as
66

consistent with 	constitutional provisions whenever possible, 	CSEA
asserts 	that the Board erred in Decision No. 	ll0d-S.
Citing Fulton v. 	Brannan 	(1891) 	88 Cal.2d 454, 	CSEA posits
that, 	when the 	Legislature 	enacted Government Code 	section
3513(c) 	defining a 	state employee, 	it did 	so bearing in mind the
constitutional 	classifications 	and 	the 	definitions 	of 	civil
service and exempt 	state 	employees. 	Even if that presumption did
not apply, 	it is argued, 	section 3513(c) 	adopts 	some of the exact
language 	used 	in the 	constitutional provisions 	on 	exempt
employees, 	adding them to the covered group of 	employees. 	(See
Article VII, 	section 4(i) 	where it is 	stated that among the
exempt 	employees 	are 	"the teaching 	staff 	of 	schools 	under the
jurisdiction of 	the 	State 	Department 	of 	Education or the
Superintendent of 	Public 	Instruction.") 	The use of 	such
constitutional 	language by the drafters 	of 	the 	Dills Act 	show
that 	the 	Legislature was 	aware 	of 	the 	constitutional 	definition
of 	civil 	service when it 	enacted the 	statute.
Furthermore, 	CSEA contends 	that the constitutional
definition of 	civil 	service 	must 	be 	read 	broadly 	and 	therefore
encompasses 	seasonal 	and 	intermittent 	employees 	such 	as 	the
lifeguards which are the 	subject of 	these petitions. 	(See
Stockburger v. 	Riley 	(1937) 	21 	Cal.App.2d 	165 	and State
Compensation Insurance Fund v. 	Riley 	(1937) 	9 Cal.2d 	126.)
Additionally, 	Government Code 	section 	19100 presumes 	that
seasonal 	and 	intermittent 	employees 	have 	the right 	to bargain
77

collectively because 	it 	refers 	to 	a 	memorandum of 	understanding
having been reached pursuant to 	section 	3517.5 	of 	the 	Dills 	Act.
Based upon the above, 	CSEA contends 	that PERB Decision No.
ll0d-S should be overruled and, 	further, 	that 	it was 	erroneous
because 	administrative 	practices 	are 	not 	the 	criteria which
determine whether an individual 	is 	a 	civil 	service 	employee.
(See California State Employees Association v. 	Trustees 	of
California 	State Colleges 	(1965) 	237 	Cal.App.2d 	530.)
POSITION OF
DEPARTMENT OF 	PERSONNEL ADMINISTRATION
DPA 	contends 	that 	the Constitution 	should be read 	as 	a whole
to 	interpret 	legislative 	intent. 	(Lungren v. 	George DEUKMEJIAN.
- -
et al. 	(1988) 	45 Cal.3d 727.) 	DPA argues that the clear
legislative 	intent 	of Article VII 	of 	the Constitution was 	to put
into place 	the 	merit 	system and 	eradicate 	the 	spoils 	system of
government. 	The merit 	system was 	placed 	at the 	center of 	the
civil 	service 	system, 	and 	entrance 	into the 	system was prohibited
without 	competitive 	examination. 	DPA claims 	that because
seasonal 	positions 	such as 	lifeguards 	do 	not 	compete 	in an
examination, 	and are not promoted by examination and tenure, 	they
are 	not 	a part 	of 	civil 	service under the meaning of 	the
Constitution and are, 	therefore, 	not employees 	covered under the
Dills Act.
DPA argues 	that the Civil 	Service Act, 	Government Code
section 	18500 	et 	seq., 	does 	not cover all 	employees 	in the 	same
way. 	Civil 	service 	is defined 	in neither the Constitution nor
the Government Code and, 	therefore, 	to say that the
8

constitutional 	definition of 	civil 	service 	employee 	is 	binding
upon PERB is 	not accurate. 	DPA claims that Article VII, 	sections
1 	and 	4 	of 	the Constitution do not adequately define all 	civil
service 	employees 	and that, 	in fact, 	one can be a 	state employee
and not be a civil 	service employee, 	although he or 	she 	is 	not
specifically 	exempt. 	(California 	State 	Employees Association v.
Williams 	(1970) 	7 Cal.App.3d 390.)
In addition, 	the point is 	raised that the Constitution
predates 	the 	collective bargaining process 	in 	state 	employment
and 	that 	therefore 	it 	is 	very difficult 	to 	read the 	intention of
the Constitution in the 	setting of 	collective bargaining. 	In
support of this 	argument, 	DPA states 	that the case of State
Compensation Insurance Fund v. 	Riley, 	supra, 	has 	never been
- -
overturned, 	but that the 	court 	in 	1937 was 	faced with a much
simpler 	governmental 	system than exists 	today. 	(California 	State
Employees Association v. 	Williams, 	supra. 	at p. 	396, 	fn. 	3.)
DISCUSSION
The 	issue before the Board 	is 	the proper 	interpretation of
Dills Act 	section 	3513(c) 	in light of the constitutional
provisions 	regarding civil 	service. 	The 	important question 	is
which 	employees 	are 	covered under 	the 	Dills Act 	and which
employees will 	not 	be 	covered because 	they 	are 	considered 	not 	to
be 	"civil 	service" 	employees. 	As noted above, 	the Dills Act
defines 	employees 	to be 	"any 	civil 	service 	employee 	of 	the 	state
. 	. 	. 	." 	(Section 3513(c).) 	Article VII of the California
Constitution, 	section 	1, 	tells us 	that 	"the civil 	service
99

includes 	every officer and 	employee 	of 	the 	state 	except 	as
provided in this Constitution." 	Article VII, 	section 4 	then goes
on to 	list a number of 	exempt positions, 	which do not 	include the
position at 	issue here.
A 	statute 	is 	to be 	interpreted 	in 	such a way as 	to preserve
its 	constitutionality. 	(California 	Housing Finance Agency v.
Elliot 	(1976) 	17 Cal.3d 575; 	see, 	generally, 	76 Am.Jur.2d,
Constitutional Law, 	sec. 	144 et seq.; 	Witkin, 	Summary of
California Law. 	8th Ed., 	Constitutional Law, 	sec. 	69.) 	A
legislative act is presumed to be constitutional; 	therefore, 	if a
statute 	can be 	interpreted 	in a way that 	is within the parameters
of 	the Constitution, 	that 	is 	the 	interpretation which must be
chosen. 	(In re Madera Irrigation Dist. 	(1891) 	92 Cal. 	296 at
p. 	307; 	see, generally, 	16 Am.Jur.2d, Constitutional Law, 	sec.
137 et seq.; 	Witkin, 	Summary of California Law. 	8th Ed.,
Constitutional Law, 	sec. 	43.) 	In California State Employees'
Association v. 	State of California 	(1988) 	199 Cal.App.3d 840, 	at
page 	845, 	the California Supreme Court, 	quoting from Methodist
Hospital of Sacramento v. 	Saylor 	(1971) 	5 Cal.3d 685, 	691,
stated:
. 	. 	. 	the California Constitution is a
limitation or restriction on the powers 	of
the Legislature. 	Two 	important 	consequences
flow from this 	fact. 	First, 	the entire law-
making authority of 	the 	state, 	except the
people's 	right 	of 	initiative 	and 	referendum,
is 	vested in the Legislature, 	and that body
may 	exercise 	any 	and 	all 	legislative 	powers
which 	are 	not 	expressly 	or by 	necessary
implication denied 	to 	it 	by 	the 	Constitution
. 	. 	. 	Secondly, 	all intendments favor the
exercise 	of the 	Legislature's 	plenary
10

authority: 	"If there 	is 	any doubt as to the
Legislature's 	power to 	act 	in any given case,
the doubt 	should be 	resolved 	in 	favor of 	the
Legislature's 	action. 	. . . "
A 	statute 	is 	to be 	interpreted 	following 	its 	plain meaning,
i.e., 	the meaning that 	a 	layperson or a dictionary definition
would provide. 	(Shay v. 	Roth 	(1923) 	64 Cal.App. 	314 at p. 	316;
see, 	generally, 	Witkin, 	Summary of California Law, 	supra, 	section
68.) 	Article VII, 	sections 	1 and 4 of the Constitution, 	when
interpreted according to 	their plain meaning, 	state 	that 	all
employees 	of the 	state are members 	of 	the 	civil 	service 	system
unless 	they are 	exempt under 	section 4. 	The list of 	exemptions
under 	section 4 	do not 	include the positions 	at 	issue herein. 	If
the Dills Act 	is 	to be read to preserve 	its 	constitutionality,
the reference to 	civil 	service 	employees 	in 	section 	3513(c) 	must
follow the 	constitutional 	definition of 	civil 	service 	employees.
Therefore, 	all employees 	in state service, 	unless 	specifically
exempted by 	section 4 	of Article VII 	of the Constitution, 	are
covered under the 	Dills Act.
Further, 	we 	are 	convinced 	that the 	Legislature 	specifically
intended that 	the Article VII 	definition of 	"civil 	service" 	be
used 	in interpreting 	section 3513(c) 	of 	the Dills Act.
The 	Dills Act was 	enacted with the merit principles 	defined
in the Constitution clearly 	in mind. 	Section 	3512 	of 	the 	Dills
Act 	states:
Nothing 	in this 	chapter 	shall 	be 	construed to
contravene 	the 	spirit 	or 	intent of 	the merit
principle 	in state employment, 	nor to 	limit
11

the 	entitlements 	of 	state 	civil 	service
employees 	. . . .
The California 	Supreme Court, 	in considering the
constitutionality of 	the 	Dills Act 	in the 	face 	of 	the merit
system, 	has held:
. 	. 	. 	the Legislature drafted SEERA with the
merit principle 	of 	article VII 	firmly 	in
mind, 	fashioning the 	statute 	specifically to
avoid 	any 	conflict with 	that 	constitutional
mandate.
(Pacific Legal Foundation v. 	Brown, 	supra, 	29
Cal.3d 	168, 	at 	186.)
The 	Court 	continued,
. 	. 	. 	we find no conflict between the general
collective 	bargaining process 	authorized 	by
SEERA and 	the 	merit principle 	of 	civil
service 	employment 	guaranteed 	by 	the
California Constitution. 	. 	. 	.
(Ibid.)
Perspective 	is 	an important part of 	this process 	because
although 	the 	statute 	and 	the 	Constitution must 	be 	read 	together
and reconciled, 	each 	statutory 	scheme has 	its 	own purpose, 	and we
must 	look to 	the purpose 	or the 	end 	intended. 	The 	question which
we deal with in this 	case 	is not a question of benefits, 	wages
and hours, 	or 	seniority under the 	civil 	service 	system. 	Rather,
it 	is 	a question of 	coverage under the Dills Act. 	It 	is 	clear
that 	the 	framers 	of 	the 	Dills Act 	intended a broad 	cross 	section
of 	state 	employees 	to be 	covered. 	As 	long as 	the application of
section 	3513(c) 	does 	not run counter to the 	constitutional
provisions regarding civil 	service, 	there 	is no conflict.
Including 	the 	classifications 	at 	issue within the 	coverage 	of 	the
Dills 	Act 	does 	not 	conflict with the 	constitutionally mandated
12

- -
merit 	system. 	Furthermore, 	any conflict which might arise 	could
be worked 	out 	on a 	case-by-case 	basis
. 	either by administrative 	accommodation
between . 	. 	. agencies themselves or, 	failing
that, 	by 	sensitive application of 	evolving
judicial principles. 	. 	. 	.
(Pacific Legal Foundation v. 	Brown, 	supra, 	at
-
p. 	200.)
The 	day-to-day workings 	of 	state 	employment 	support 	the
analysis 	discussed 	above 	regarding which 	employees 	of 	the 	state
are 	civil 	service 	employees 	and which are not. 	The 	State of
California 	"purchases" 	the 	services 	of 	individuals 	in one of 	two
ways: 	(1) 	contracting for needed services, 	special 	skills and/or
background; 	and 	(2) 	hiring an individual 	as an employee. 	In none
of 	the petitions 	before 	the 	Board 	is 	there 	a 	contract between the
individual and the 	state. 	Rather, 	the 	individual 	is placed on
the 	state payroll, 	in a 	state 	civil 	service 	classification with a
classification code number. 	The 	individual may 	contribute 	to 	the
retirement 	system, 	may be 	eligible 	for a variety of 	employee
benefits, 	is 	subject to 	state discipline, 	and has a variety of
employee rights. 	Therefore, 	all of the individuals 	in the
contested 	classifications 	are 	state 	employees.
The 	next 	step 	is 	to 	determine whether these 	employees 	are
civil 	service 	employees within the meaning of 	the Constitution
and the Dills Act. 	The Constitution, 	at all times, 	has only
authorized two methods 	for the 	appointment 	of 	state 	employees.
The 	first 	concerns 	exempt appointments. 	As 	all parties 	have
noted, 	exempt 	appointments 	are 	specifically designated by the
13

Constitution 	(Art. 	VII, 	sec. 	4) 	or by special legislation.4 All
personnel 	appointments 	other 	than 	the 	specific 	exempt
appointments 	are 	therefore part 	of 	the 	civil 	service 	system and
have 	some 	form of 	civil 	service 	status, 	whether it be 	seasonal,
limited term, 	permanent, 	part-time, 	or any other type.
All 	of 	the 	contested positions 	are designated with 	a 	state-
created civil 	service classification and a 	state 	class 	code, 	and
the 	salaries 	are determined by DPA. 	Exempt 	classes 	and pay
scales 	are 	established by the Department of Finance. 	All 	of 	the
contested 	classes 	are 	controlled by 	DPA and 	the 	State 	Personnel
Board.
The 	legal 	authority 	for 	all 	of 	the 	contested 	classifications
is 	embodied 	in Government Code 	section 	190585 of the Civil
4The 	exception to this 	is 	the prevailing wage 	laws 	(Labor
Code 	section 	16000 	et 	seq.) 	regarding public 	construction
contracts.
5Government Code 	section 	19058 	states:
When there 	is 	no 	employment 	list 	from which a
position may be 	filled, 	the appointing power,
with the 	consent of 	the board, 	may fill 	the
position by temporary appointment. 	The
temporary 	appointment 	to 	a permanent position
shall 	continue 	only until 	eligibles 	are
available 	from an appropriate 	employment 	list
and 	shall 	not 	exceed 	the period prescribed by
Section 	5 	of Article VII 	of 	the Constitution.
Within the 	limits 	of 	the period prescribed
therein, 	any temporary appointment to a
limited term position may, 	in the discretion
of 	the 	appointing power 	and with 	the 	approval
of 	the board, 	be 	continued 	for the 	life of
such position. 	When temporary 	appointments
are made to permanent positions, 	an
appropriate 	employment 	list 	shall 	be
established 	for each 	class 	to which a
temporary appointment 	is 	made before 	the
14

Service Act. 	Such 	appointments 	are 	clearly within the 	civil
service, 	as 	such appointments 	are only authorized 	in absence of
an appropriate 	list of 	eligibles.
Government Code sections 	19063.2, 	19063.5, 	19063.6 and
19063.8 	of 	the Civil 	Service Act were 	enacted and became
effective 	in 	1983. 	In each 	section, 	the Legislature clearly
recognized the 	existence of 	open 	seasonal 	class 	positions 	in the
civil 	service 	system. 	These appointments 	specifically do 	not
require 	the 	examination process 	to 	achieve 	appointment
eligibility, 	which 	is 	contrary to DPA's 	assertion that non-
testing 	appointments 	are 	not 	civil 	service 	appointments.
It 	is 	clear 	from the 	above 	that 	state 	employees 	must be
either exempt or civil 	service. 	The 	employees 	in question are
not 	exempt as defined in the Constitution and must, 	therefore, 	be
civil 	service 	employees.
ORDER
Based upon all 	of the 	above, 	we 	find that 	seasonal
lifeguards 	are covered under the Dills Act, 	and that 	the method
of decision utilized 	in PERB Decision No. 	ll0d-S 	was 	not 	in
accord with Article VII, 	sections 	1 	and 4 of the Constitution.
Therefore, 	PERB Decision No. 	ll0d-S 	may not be relied upon for
the proposition that 	an employee 	covered under the 	Dills Act 	is
solely one whose position carries 	the 	indicia 	of 	"civil 	service"
status 	presented 	in the 	testimony provided 	in PERB 	Decision
expiration of 	the 	appointment.
15

No. 	ll0d-S. 	To the extent that PERB Decision No. 	ll0d-S 	is
inconsistent with this 	Decision, 	it 	is hereby OVERRULED. 	The
unit 	modification petitions 	filed by 	the 	State 	Department 	of
Personnel Administration are hereby DISMISSED, 	and the 	case 	is
hereby 	REMANDED 	to 	the 	PERB 	Sacramento 	Regional 	Director.
Members 	Craib 	and 	Shank 	joined 	in this 	Decision.
Chairperson Hesse's 	concurrence begins 	on page 	17.
16

Hesse, 	Chairperson, 	concurring: 	While I 	agree with the
majority's 	conclusion that the employees 	in question, 	seasonal
lifeguards, 	are civil service employees, 	I write separately to
harmonize the conflict between Article VII, 	section 4 	of the
California 	Constitution and the 	merit principles 	inherent 	in the
civil 	service 	system.
As noted by the majority, 	Article VII, 	section 	l(a) 	of the
California 	Constitution mandates 	that 	"[t]he 	civil 	service
includes 	every officer and 	employee 	of 	the 	state 	except 	as
otherwise provided 	in this 	Constitution." 	This 	mandate 	is
qualified by Article VII, 	section 4, 	which specifically
enumerates 	the 	exemptions 	from civil 	service. 	Courts 	are without
power to 	create 	additional 	exemptions. 	(State Compensation
Insurance Fund v. 	Riley 	(1937) 	9 Cal.2d 	126, 	134.) 	This rule
equally 	applies 	to 	administrative agencies. 	Since 	seasonal
lifeguards 	are not 	listed as 	one of 	the 	exemptions 	to 	civil
service, 	the majority concludes 	that 	seasonal 	lifeguards 	must be
civil 	service 	employees. 	However, 	the majority fails 	to
adequately address 	the 	fact 	that 	seasonal 	lifeguards 	are 	not
subject 	to 	the 	competitive 	examination process 	of 	the 	civil
service 	system.
In reconciling the 	constitutional 	mandate 	of Article VII 	and
the merit 	system of 	state civil 	service, 	Article VII, 	section
l(b) 	is instructive. 	Specifically, 	Article VII, 	section l(b)
states:
In the 	civil 	service permanent 	appointment
and promotion 	shall 	be made under a 	general
17

system based 	on merit 	ascertained 	by
competitive 	examination.
(Emphasis 	added.)
Former-Article XXIV of 	the 	California Constitution,1 which
established the merit 	system of 	state civil 	service, 	was 	adopted
in 	1934. 	As 	the Court of Appeal 	stated 	in California 	State
Employees Association v. 	Williams 	(1970) 	7 Cal.App.3d 390, 	398:
Article XXIV was 	presented 	to 	California
voters 	in 	1934 	as 	a means 	of establishing a
merit 	system of 	employment which would
eliminate the 	spoils 	system. 	[Citation.] 	It
was 	not presented as 	an organic 	blueprint 	for
the 	structure of 	agencies within the 	states
executive 	branch.
At that time, 	the 	state government was 	a 	relatively 	simple
structure. 	In adopting a 	civil 	service 	system for permanent
appointment and promotion, 	nonpermanent positions, 	such as
seasonal 	lifeguards, 	were not within the contemplation of 	the
civil 	service 	system. 	However, 	in the ensuing years, 	a multitude
of new public 	services, 	which established new positions, 	were
created. 	Generally, 	courts 	do not 	construe 	constitutional
provisions 	"so 	as 	to prevent 	legislative 	action adjusted 	to
growing needs 	and the changed 	condition of 	the people." 	(Pacific
Legal Foundation v. 	Brown 	(1981) 	29 Cal.3d 168, 	196, 	citing
Veterans' 	Welfare Board v. 	Jordan 	(1922) 	189 Cal. 	124, 	143.) 	In
construing the 	language of Article VII, 	one must 	consider the
expansion and 	complexity of 	state 	government 	and 	the 	civil
service 	system.
1Article XXIV of 	the 	Constitution was 	amended 	and 	later
repealed. 	In 	1976, 	Article VII was added, 	which was
substantially 	identical 	to 	former-Article 	XXIV.
18

Under Article VII, 	section 	l(b), 	the issue then becomes
whether 	seasonal 	lifeguards 	are 	"permanent." 	If 	such positions
are permanent, 	then, 	under the mandatory language of Article VII,
section 	l(b) 	of the Constitution, 	permanent appointments 	and
promotions must be based on merit, 	i.e., 	competitive examination.
Under Article VII, 	section l(b), 	there is no mention of
nonpermanent appointments 	and promotions. 	Rather, 	the
Constitution 	is 	silent 	regarding nonpermanent 	appointments 	and
promotions. 	Consequently, 	if 	such positions are not permanent,
then 	it 	is 	not mandatory that 	such 	appointments 	or promotions 	are
subject 	to 	competitive 	examination to 	ascertain merit.
In the present case, 	seasonal 	lifeguards 	are not appointed
or promoted based on a 	competitive 	examination. 	In its 	brief,
the 	Department 	of 	Personnel Administration argues 	that 	the
seasonal 	lifeguard positions 	do not 	compete 	in examinations, 	are
not promoted by 	examination and tenure, 	and do 	not have 	the 	same
benefits 	as 	civil 	service 	employees. 	In the California Union of
Safety Employees' 	(CAUSE) 	brief, 	CAUSE argues that the seasonal
lifeguards 	under 	attack 	in this 	unit modification petition 	are
subjected 	to 	a physical 	condition test. 	Neither party 	asserts
that 	the 	seasonal 	lifeguard positions 	are 	subjected 	to 	a 	civil
service 	competitive 	examination.
In attempting to define 	seasonal 	employee, 	I 	am frustrated
by the 	lack of 	a 	definition 	in either the California Constitution
or Government Code. 	While 	the Government Code 	explicitly defines
permanent employee 	(Gov. 	Code, 	sec. 	18528), 	temporary employee
19

(Gov. Code, 	sec. 	18529), 	limited-term employee (Gov. Code, 	sec.
18530), emergency employee (Gov. Code, 	sec. 	18531), 	full-time
position (Gov. Code, 	sec. 	18550), part-time position (Gov. 	Code,
sec. 	18551), 	and intermittent position 	(Gov. 	Code, 	sec. 	18552),
no definition exists 	for a 	seasonal 	employee or position.
However, 	the term 	"seasonal class position" 	is 	included at
Government Code 	sections 	19063 	et 	seq., 	which describe 	the
appointment 	and priority 	consideration of 	public 	assistance
recipients 	and 	the 	establishment 	of 	qualified hiring pools 	and
referrals. 	It appears 	that 	seasonal 	class positions 	are 	filled
pursuant to Government Code 	sections 	19063 	et 	seq. 	Government
Code 	section 	19063 	infers 	that 	seasonal 	class 	positions 	do not
require 	an examination. 	Such positions 	are 	filled by 	"qualified
hiring pools" 	or 	"referrals 	of public 	assistance recipients."
The purpose 	of 	the California 	civil 	service 	system 	is 	to
promote 	efficiency and 	economy 	in 	state 	government. 	(State
Compensation Insurance Fund v. 	Riley, 	supra. 	9 Cal.2d 	126, 	134.)
This 	goal 	is 	achieved by basing appointments 	and promotions 	on
merit, 	efficiency 	and 	fitness 	ascertained by competitive
examination. 	(Id.)
Although 	seasonal 	class 	positions 	do 	not 	require 	a 	civil
service competitive examination, 	these positions 	do not
necessarily 	contradict the purposes 	of 	the 	civil 	service 	system.
The use 	of merit 	in the 	appointment 	and promotion of 	civil
service 	employees 	serves 	to 	abolish the 	so-called 	spoils 	system
and, 	at the 	same time, 	increase the efficiency of the civil
20

service 	by 	assuring 	the 	employees 	that 	appointment 	and promotion
will 	be 	the 	award of 	faithful 	and honest 	service. 	(Skelly v.
State Personnel Board 	(1975) 	15 Cal.3d 194, 	210; 	Steen v. 	Board
of Civil Service Commissioners 	(1945) 	26 Cal.2d 716, 	722.)
Assuming 	seasonal 	class 	positions 	include 	seasonal 	lifeguards,
these positions 	are 	not 	the 	type 	of position whereby 	appointment
and promotion 	through 	a 	competitive 	examination would 	necessarily
increase 	efficiency and 	economy. 	Seasonal 	lifeguard positions
are 	needed 	for 	a 	limited period 	each year 	and do 	not 	lend
themselves 	to 	a 	structured or 	cumbersome hiring procedure.
Rather, 	appointments 	are based on 	fluctuating need, 	and any
promotion 	is 	virtually nonexistent 	as 	the positions 	may be 	filled
by different 	individuals 	each year. 	There appears 	to be no
continuing hierarchical 	system 	on which 	to 	establish 	appointment
or promotion. 	By their nature, 	seasonal 	lifeguard positions 	do
not promote the 	spoils 	system, 	inefficiency, 	or noneconomy.
By 	enacting Government Code 	section 	19063 	et 	seq., 	the
Legislature 	established 	a 	separate procedure 	for 	the 	appointment
and promotion of 	seasonal 	class positions. 	This procedure does
not 	conflict with 	the 	constitutional 	provision 	establishing 	the
civil 	service 	system or the purposes 	of 	the 	civil 	service 	system.
As 	seasonal 	lifeguard positions 	are not permanent, 	the 	fact 	that
such positions 	are not 	subject 	to 	a 	competitive 	examination does
not 	conflict with Article VII 	of 	the California Constitution.
Further, 	the purposes 	of 	efficiency and 	economy are 	served by 	the
current procedure 	for the 	appointment 	and promotion of 	seasonal
21

lifeguard positions. Accordingly, I conclude that seasonal

-- lifeguards are civil service employees.

22