CORTE MADERA, CA - JULY 10: A California Department of Motor Vehicles customer peers into the door of a closed DMV branch July 10, 2009 in Corte Madera, California. As California struggles with a $26-billion budget imbalance, Gov. Arnold Schwarzenegger declared a state of emergency earlier this month and has ordered three work furlough days per month leaving most state offices closed today. (Photo by Justin Sullivan/Getty Images)
Gov. Arnold Schwarzenegger's power to furlough state workers for two or three days per month in response to the state's budget crisis was argued before the California Supreme Court in San Francisco today.
Four lawyers representing employee unions and Controller John Chiang argued that the unpaid days off for 200,000 workers last year violated union contracts and the Legislature's enactment of 40-hour work week for state jobs.
Patrick Whalen, a lawyer for a state attorneys' union, told the court the Legislature has given the governor other fiscal emergency powers, but not the authority to order furloughs.
"He can lay off employees to save money, he can negotiate with unions to save money, he can impose travel freezes and he can impose hiring freezes," Whalen said.
"He has all these options and he chose the only one that is not legal," the attorney argued.
David Tyra, representing Schwarzenegger, countered that the power to order furloughs is within the governor's inherent authority as the state's chief executive.
"The governor possesses the authority from his implied and inherent powers as chief executive officer of California," Tyra said.
The court's seven justices took the case under submission after hearing one and one-half hours of arguments. They now have 90 days to issue a written ruling.
The cases before the court concern the state's first round of furloughs, in which 200,000 workers were ordered to take unpaid days off at first two and later three days per month between February 2009 and June 2010.
But the panel's eventual ruling would likely affect the current round of layoffs for 144,000 workers for three days per month, which began in August. The furloughs amount to a 14 percent pay cut.
Several justices seemed to be searching for a middle ground for upholding the furloughs, suggesting that the Legislature may have ratified the layoffs by passing a budget bill that incorporated the lower salary costs, or that furloughs were a "lesser included" power in the authority to impose layoffs.
Tyra maintained that Schwarzenegger had the authority to order furloughs even without Legislature's action in the budget bill, while lawyers for the unions and Chiang argued the budget bill did not ratify the furloughs.
If the court rules that the furloughs were illegal, the question of whether workers entitled to back pay of $1 billion or more might be deferred until later.
Robin Johansen, a lawyer for Chiang, urged the court to send that question back to a trial judge in Sacramento County Superior Court if necessary.
She said there is a "whole raft of issues" as to whether workers would be entitled to back pay, including a question of whether paying them for work they were unable to do would be an illegal gift of public funds.
After hearing the furlough cases, the panel heard another one and one-half hours of argument in a second budget case.
That case concerns whether Schwarzenegger had the power to use line-item vetoes to cut an additional $489 million in health, welfare and parks spending from an emergency budget reduction measure passed by the Legislature last year.
Several nonprofit social service groups and Democratic legislative leaders are appealing a decision in which a state appeals court in San Francisco upheld Schwarzenegger's authority to make the additional cuts.
Bay City News