California May Be Heading to Constitutional Standoff on Schwarzenegger’s Plan for Payment of Less Than Full Salaries to State Em

[courtesy of California Progress Report]

By Frank D. Russo

The Sacramento Bee has a breaking story that Governor Schwarzenegger’s office has scheduled a signing ceremony for an Executive Order that would result in approximately 200,000 state of California workers being paid at the federal minimum wage—lower than the state’s own minimum wage—until the state budget is passed. Whether or not this actually happens or there will be some way to avoid the train wreck that could result is unclear.

However, if the Governor signs such an order, it will be delivered to the office of Democrat John Chiang, California’s elected State Controller, who has announced he will not comply—based on legal opinions and the authority he is given under the California Constitution to manage the state’s cash flow, pay its bills, and draw warrants on the state treasury. Once the State Controller has notified the Governor that he will not be complying with the order, it will then fall to the Governor to take this matter to the state courts, and a legal battle will take place with briefs probably already ready or about to be readied on this area of the law.

There may be some issues here that will be particularly sticky under the 2003 California Supreme Court case of Davis v. White that go beyond the whether the order as signed is legal. According to some legal reasoning the Governor under the White case and the Federal Labor Standards Act (FLSA) may not be able to limit the cuts to certain categories and the cuts could apply to all state employees—or none at all. Under this reasoning, it could apply to police, firefighters, and other public safety state employees.

This has become a hotly debated issue with reports in both the Daily Californian at UC Berkeley and the UCLA Daily Bruin discussing whether it would apply to University of California workers. Within minutes of today’s article, the Bee had dozens of comments.

Last week, following the leaking out of the Governor’s possible action, State Senator Dean Florez asked for and obtained a legal opinion letter from the legislature’s lawyers—the Office of Legislative Counsel. Below is a copy of their advice to their client that the Governor's proposed action does not trump the Controller's authority. We reproduce it in its entirety: