Spring 2004

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Guest Commentary

Daniel Weintraub is a columnist for The Sacramento Bee. This column (opinion@sacbee.com) was published on March 18, 2004, and is reprinted with permission. Readers can see Mr. Weintraub’s daily Weblog at www.sacbee.com/insider Back columns: www.sacbee.com/weintraub

In the final desperate weeks before last fall's recall election, then-Gov. Gray Davis agreed to a five-year labor contract with the state's highway engineers, who had been big contributors to his campaigns and who were at the time a major donor to the committee fighting to keep him in office.

But Davis' deal with the engineers was too generous even for the labor-friendly Democrats who controlled the Legislature. The agreement, promising big future wage increases tied to salaries paid by local governments to their own road designers, was approved only after lawmakers insisted on future votes to ratify any pay hikes triggered by the contract.

Lurking inside the deal, however, was another provision that got no public scrutiny - and was probably unconstitutional. It was the latest salvo in an ongoing war between the state engineers - Public Engineers in California Government – and their private counterparts, another in a series of moves by the public employees to prevent competition that might threaten their jobs – and possibly save money for California taxpayers.

But if you think it doesn't matter who controls state government, think again. After Davis was dumped in the Oct. 7 election, the private engineers sued the state, arguing that the newly minted contract violated the voters' expressed desire to open highway work to all comers. And the administration of Gov. Arnold Schwarzenegger, taking over from Davis as the defendant in the lawsuit, capitulated in court rather than defend a dirty deal. The state government, Schwarzenegger's people told a judge, was wrong to enter into this contract.

That judge has now issued a preliminary order stopping the state from enforcing the disputed provision, and a full trial on the matter has been set for later this year. But the outcome is hardly in doubt.

California voters have twice in the past six years expressed their desire to let the state use private firms for road-design work, apparently in the belief that doing so could speed highway construction, reduce road congestion and save money. The courts have affirmed that position. It is part of the state's constitution. And now, with a governor who supports not only the policy but also the right of the people to decide it, that policy will be the law of the land.

Still, it's useful to review the chain of events, if only for history's sake. Those events show that, even with the state's finances going down the tubes, Davis was willing to circumvent the constitution to reward a public employee union whose members contributed $200,000 to help re-elect him in 2002 and nearly $400,000 to try to keep him in office a year later.

The saga began during the administration of former Gov. Pete Wilson, who, in a compromise with the Legislature, won limited authority to contract for highway engineering work. Disputes immediately arose over Wilson's use of that authority, and the engineers sponsored a ballot measure to regulate it. Although advertised as simply requiring the state to use the lowest-cost alternative, Proposition 224 in 1998 was written in a way that could have tipped the scales toward the public engineers. The voters rejected it overwhelmingly, with 62 percent voting against the measure.

But the legal battle raged on. The state engineers sued to try to stop the private contracts, and the private-sector firms fought back. For a time, the public employees seemed to be gaining the advantage in court. To settle the issue once and for all, the private firms sponsored their own ballot measure, a constitutional amendment giving the state unfettered authority to contract for highway design and engineering work. In the November 2000 election, the voters approved Proposition 35 by a margin of 55 percent to 45 percent.

That should have been the end of the story, but the public engineers still wouldn't quit. First they sued to limit the impact of Proposition 35; they lost. Then they tried to get around it. In 2002, the engineers and the Davis administration inserted into their new labor contract a provision that would have limited the Department of Transportation's ability to use private firms for engineering work. That deal was on its way to being ratified by lawmakers until a last-minute opinion from the Legislature's own lawyers called it unconstitutional. Davis withdrew the proposal and went back to the bargaining table with the engineers.

What emerged wasn't pretty. In the final hours of last year's legislative session, less than a month before the recall election, Davis and the engineers brought a new contract to the Legislature. This one sought to limit private work by establishing a new labor-management committee, with half its members appointed by the engineers union. The committee would review all proposed private contracts and, using a preference for state engineers, terminate as many contracts as it could, shifting private-sector employees to the public payroll where possible.

That, too, violated the voters' will, and the constitution. The courts will soon make that clear. In the meantime, Schwarzenegger is free to direct his agencies to use the most cost-efficient methods - whether public or private - to design and build new highways. And that's exactly what he should do.