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socrateaser
socrateaser, Lawyer
Category: California Employment Law
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Experience:  Retired (mostly)
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Question 1 The California Constitution sec 4, article VII,

Customer Question

Question 1
The California Constitution sec 4, article VII, gives a list of those positions that are exempt from civil service. Although they are not civil service employees, are these listed exempt persons considered state employees and what are their benefits?

Question 2
What is the difference of excluded and exempt"
Submitted: 1 year ago.
Category: California Employment Law
Expert:  socrateaser replied 1 year ago.
1. The positions listed in the Cal. Const. Art. VII, Sec. 4 are clearly employees of the state, but not of the executive branch of government. The positions are employees of either the legislative or judicial branch, which operates from a different budget. The purpose of the constitutional provision is to maintain separation of powers, so that the enumerated employees are not subject to the control of the executive branch, through the State Personnel Board, which ordinarily governs civil service employees (see Cal. Const. Art. VII, Sec. 3).

2. The term, "excluded" does not appearl in Art VII, Sec. 4, so the difference in terms is meaningless for the purposes of the Article. The term "exempt" merely means that the enumerated individuals are not subject to control by the State Personnel Board.

Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 33511
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Since the exempt positions are not civil service, what would be the state benefits allowed for the categories listed in section 4?

Expert:  socrateaser replied 1 year ago.
Govt. Code 9200 authorizes the legislature with the power to grant benefits to branch employees. In general, legislative employees are granted the same benefits as those provided for executive branch employees. See this link.

Judicial branch employee benefits are enumerated at this link.

Hope this helps.

Customer: replied 1 year ago.

Thank you for the references.


sec 4k of article VII of the CA Constitution is the particular area I'm interested in. I am classified as State Active duty and classified as exempt per the constitution.


 


Myself and 32 others are being discharged effective 30 June because we are over age 60. I infer that I'm protected from age discrimination because of the California Military Veterans code section 130. Section 130 states the military department must follow California Government Code 12940 regarding discrimination. The State legislature just passed a law (SB807 Eff 1 Jan 13) stating the adjutant general may discharge at or after age 60. I again infer that myself and others are protected "grandfathered" because I and all the others were employed prior to 1 January 2013. Your thoughts?




Expert:  socrateaser replied 1 year ago.
If the legislature has passed a law that does not contain any "grandfather" provisions, then I do not believe you can rely on any legal doctrine that would preserve your right to employment. Moreover, after reviewing the leglislative analysis, it appears that prior law would have permitted your retirement at age 60. So, in fact, SB807 does not require your retirement in a manner materially different from prior law.

That the law may violate Govt. Code 12940 (or the federal Age Discrimination in Employment Act), is a different issue. I believe it does not, because military service, by its unique requirements, probably can avoid age discrimination rules by showing that national or state security is impaired by not requiring mandatory retirement.

This is a very complex issue -- I would have to conduct substantial research into the history of military retirement, both at the federal and state level, to determine if you actually have a viable cause of action -- before I could comment with any certainty on the issue.

Hope this helps.
Customer: replied 1 year ago.

Thanks. The military association we have in the state is the state militia and not federal status. Our retirement is based on GC 20282 which miscellaneous membership with CalPERS. All of us have over 5 years state service and are eligible for a small pension.


 


Regarding GC 12920, 12926 and GC12926.1 (Discrimination), the only reference to the legislature making age rules is effective for the employ of persons. I take "employ to mean "hire" not the making of law for those already employed.


 


Thoughts?


 

Expert:  socrateaser replied 1 year ago.

Thanks. The military association we have in the state is the state militia and not federal status. Our retirement is based on GC 20282 which miscellaneous membership with CalPERS. All of us have over 5 years state service and are eligible for a small pension.


A: Yes, the state militia -- however, to the extent that Congress makes law where there is an intent to "occupy the field" or where it expressly states an intention to abrogate State sovereignty, federal law can be applied against the states. Re age discrimination, federal law expressly includes "a State." And, while individuals cannot sue the state of California for age discrimination under federal law (see Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000)), the EEOC can sue, if the federal government believes that California has overstepped its authority.

 

Regarding GC 12920, 12926 and GC12926.1 (Discrimination), the only reference to the legislature making age rules is effective for the employ of persons. I take "employ to mean "hire" not the making of law for those already employed.

A: The section that actually prohibits age discrimination is Govt. Code 12940(a). However, "bona fide occupational qualifications" permit an employer to discriminate -- and where military service is concerned, age can be a bona fide qualification.

However, there is a counterargument here. The state militia, while certainly a legally authorized organization, with a valid constitutional purpose, is in many ways an anacronism, except as applies to the national guard. California does not really have its own military force capable of defending the state independent of the U.S. military. So, a claim by the state that age is a bona fide occupational qualification for service in the state militia is rather disingenuous. I seriously doubt that the militia will be called upon to do battle with General Santa Ana's army, or an indigenous tribal organization.

This is not to disparage your job or the idea that there should be a militia for the purposes of dealing with internal insurrection or a civil war with the US federal government. It's just that the reality of 2013 is quite different than the reality of 1890, and if the argument that the state's age limitation is not "bona fide" (honest in fact and customary standards of military law), then you have a valid case against the state -- where you might not have had the same argument 100-plus years ago.

I really wonder whether this mandatory retirement law is constitutionally valid as it applies to your job.

Hope this helps.
Customer: replied 1 year ago.

If the legislature has passed a law that does not contain any "grandfather" provisions, then I do not believe you can rely on any legal doctrine that would preserve your right to employment. Moreover, after reviewing the leglislative analysis, it appears that prior law would have permitted your retirement at age 60. So, in fact, SB807 does not require your retirement in a manner materially different from prior law.



You mentioned above in an earlier response that "...after reviewing the leglislative analysis, it appears that prior law would have permitted your retirement at age 60. "


 


Not entirely true. The only prevision in previous law was Sec 167 of the California Military veterans code that stated "...those on permanent status with the office of the adjutant general, must retire at age 60." Sec 167 status is for those assigned to the office of the adjutant general, one of the five entities of the California Military Department. sec 167 was abolished with the passing of SB807.Many were on "167" status and this would apply. The majority are and


have been on sec "142" status and retirement at 64 is appropriate. All 32 that are being discharged are on sec 142 authority and age 64 is the retirement and all planned on retiring on the day of reaching age 64. The SB807 still allows duty until 64, but the adjutant general has decided to make a rule eliminating all at age 60, even though age 64 is in the CMVC.


 


Thoughts?

Expert:  socrateaser replied 1 year ago.
Section 142(b) appears to grant the adjunct general authority to maintain personnel on temporary orders after age 60, at the general's discretion. So, the arbitrary rule is permitted by law. The question is whether or not it's discriminatory on its face.

It's still the same issue as it was before: is age really a bona fide occupational qualification for this position? I don't believe that it is, and so in my opinion, the law violates federal law.

You would have to complain to the EEOC and see if the agency will back you. Even though Section 130 requires that the department follow Govt. Code 12940, the law expressly provides age limitations -- and a state court is not going to invalidate one state law through the use of another. So, the only way to defeat the law is with the assistance of the federal government.

Hope this helps.

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