Lead Opinion
Opinion
In this case we decide that the Career Executive Assignment (CEA) program does not violate the civil service mandate of the California Constitution. However, the implementing regulations that allow selection and transfer of applicants without ranking them violate statutes implementing the constitutional requirement of a “system based on merit ascertained by competitive examination.” As we recently held in Alexander v. State Personnel Bd. (2000)
With specified exceptions, a civil service system governs state workers, as provided by the California Constitution. (Cal. Const., art. VII, § 1, subd. (a); see Professional Engineers v. Department of Transportation (1997)
Professional Engineers in California Government and other groups of state workers (collectively the Engineers) filed a petition seeking declaratory and other relief, alleging the CEA program violates the civil service provisions of the California Constitution. The State Personnel Board (the Board) and the Department of Personnel Administration (the Department) appeared separately to oppose the claims. The trial court denied the petition and the Engineers timely appealed.
We held this case pending resolution of a case raising similar issues. (Alexander, supra,
Discussion
I. Background.
From statehood, patronage filled most state jobs. Reportedly, Governor Hiram Johnson “followed two guidelines in filling government slots prior to the implementation of the civil service system. First, the State should receive the most efficient service attainable. Second, those most able to furnish this service should be picked from the better party—Republican.” (King, Deliver Us from Evil: A Public History of California’s Civil Service System (1979) p. 9 (hereafter King).) California adopted its first civil service system by statute during the Progressive Era in 1913. (Stats. 1913, ch. 590, p. 1035.) This plan would not only ensure good state workers, but, in tail-wags-dog fashion, ensure good politics. “When the next fight for Governor comes off, there will be no spoils of office to promise or barter away. The election will go off entirely on the character of the two men who are appealing to the people for their suffrage and on the principles of government which they advocate.” (King, supra, at p. 9.)
In 1934 the People, in the exercise of their reserved initiative powers— powers wrested from the central government during the same Progressive Era—adopted a number of provisions designed to strengthen the existing civil service system. The California Supreme Court reviewed the history as follows:
“In 1913, the California Legislature enacted a statute creating California’s first civil service system in an attempt to combat the ‘spoils system’ of political patronage in state employment. (Stats. 1913, ch. 590, p. 1035.) By the early 1930’s, however, the existing statutory civil service system was obviously failing in its primary task. The deficiencies in the system stemmed from several principal sources. First, acceding to political pressure, both the Legislature and the statutory civil service commission itself had over the years exempted numerous departments and positions from the civil service restrictions: indeed, by 1932 the exemptions had become so widespread that ‘[o]f the 23,222 full-time state employees, only 11,917 held permanent civil service positions.’ [(Citing King, supra, at p. 26.)] Thus, fully one-half of the permanent state employees were exempt from the civil service law.
“ ‘A second abuse of the Civil Service Act was the gross misuse of authorizations for temporary employment [which was not subject to the civil service act] .... Officially, temporary appointments followed the three month rule, but this had never been followed. By August 1931, temporary employees constituted more than a third of the entire state service.’ [(King, supra, at p. 26.)]
“Finally, in the early 1930’s considerable public attention was focused on the problem by widespread newspaper accounts of the allegedly numerous politically motivated appointments made by the incumbent Governor. (Id. at pp. 26-29.)
“It was in this milieu and in response to the specific problems of the times that in 1934 the people adopted article XXIV of the state Constitution. The ballot argument accompanying the 1934 initiative measure sets forth in clear terms both the objectives and the limits of the proposed constitutional provision.
“The ballot argument stated: ‘The purpose of this constitutional amendment is to promote efficiency and economy in State government.
The Constitution exempts specified positions from the civil service. Broadly speaking, these are elected or confidential employees, such as judicial, gubernatorial and legislative employees, elected officials, a specified number of deputies of elected officers, and board and commission members or deputies; university officials and employees are also exempted. (See, e.g., Cal. Const., arts. VII, § 4 [listing major exemptions], IX, § 2.1, XX, § 22.)
The People moved the language at issue in this case to its present location in 1976. (PLF, supra,
California Constitution, article VII, section 1 provides: “(a) The civil service includes every officer and employee of the State except as otherwise provided in this Constitution. [^] (b) In the civil service permanent appointment and promotion shall be made under a general system based on merit ascertained by competitive examination.” Article VII, section 5 provides: “A temporary appointment may be made to a position for which there is no employment list. No person may serve in one or more positions under temporary appointment longer than 9 months in 12 consecutive months.”
In 1963, the Legislature, drawing on ideas originally proposed by President Eisenhower’s Hoover Commission, created “a new kind of civil service appointment” as part of a program “to give scope to younger civil service employees possessing extraordinary ability and initiative, and to enhance the ability of the policy-forming heads of state agencies to perform efficiently the tasks for which the public holds them accountable. R[] When a vacancy occurs in a civil service position ‘of a high administrative and policy influencing character’ [citation] the State Personnel Board may designate the position as a career executive assignment. The statutes normally ‘governing the selection, classification, salary, tenure and other conditions of employment’ in the civil service do not apply to career executive assignments unless so provided by board rule. [Citation.] Eligibility for a career executive appointment is established by competitive examination which may be opened to a much larger field of candidates (limited to permanent
The history cited in PLF, supra,
But how does one provide flexibility in hiring without reinstating a spoils system? “Borrowing the idea of tenure at pleasure from Spoils, the Career Executive Assignment Plan adapts it sharply. The important (but unstated) distinction made is one between social bias and partisan bias, between enthusiasm for a governmental program and enthusiasm for a political party.” (Musolf, supra, at p. 88; see Hackett, Higher Civil Servants in California (1966) pp. 114-115 (Hackett) [“although a ‘partisan bias’ continues to be an illigitimate [sic] basis for terminating an appointment, a ‘program bias’ is not”].)
Current statutes provide in relevant part as follows:
“ ‘Career executive’ means an employee appointed from ... a list of persons with permanent status in the civil service who are available for career executive assignments, in which selection, classification, salary, tenure, and other conditions of employment may be varied from those prevailing ... for other employees in the state civil service.” (Gov. Code, § 18546; further section references are to this code.)
“ ‘Career executive assignment’ means an appointment to a high administrative and policy influencing position within the state civil service in which the incumbent’s primary responsibility is the managing of a major function or the rendering of management advice to top-level administrative authority. Such a position ... is typified by broad responsibility for policy implementation and extensive participation in policy evolvement. . . .” (§ 18547.)
“It is the purpose of this article to encourage the development and effective use in the civil service of well-qualified and carefully selected executives. In order to carry out this purpose the State Personnel Board shall establish by rule a system of merit personnel administration specifically suited to the selection and placement of executive personnel. The department shall be responsible for salary administration, position classification, and for the motivation and training of executive personnel. For the purpose of administering this system there is established herewith a category of civil service appointment called ‘career executive assignments.’ The department shall designate positions of a high administrative and policy influencing character for inclusion in or removal from this category subject to review by the State Personnel Board, except that the department shall not so designate a position in which there is an incumbent already appointed under the provisions of
“The provisions of this part governing the selection, classification, and tenure of employees in the regular civil service shall not apply in administering executive personnel through a merit system utilizing ‘career executive assignments’ unless the application is provided by State Personnel Board rule. The provisions of this part relating to punitive actions shall apply to employees serving in career executive assignments, except that termination of a career executive assignment as provided for in Section 19889.3 is not a punitive action. With reference to termination of career executive assignments, the State Personnel Board rules shall, as a minimum, afford an employee a right of appeal to the State Personnel Board for restoration of his or her assignment when he or she alleges that his or her termination was for reasons prohibited in Chapter 10 (commencing with Section 19680) of Part 2.” (§ 19889.2.)
“Eligibility for appointment to positions in the career executive assignment category shall be established as a result of competitive examination of persons with permanent status in the civil service who meet such minimum qualifications as the State Personnel Board may determine are requisite to the performance of high administrative and policy influencing functions. No person employed in a career executive assignment shall be deemed to acquire as a result of such service any rights to or status in positions governed by the provisions of this part relating to the civil service other than the category of career executive assignment, except as provided by State Personnel Board rule. The State Personnel Board shall provide by rule that an employee shall, if he or she so desires, at the termination of his or her appointment to a career executive assignment, be reinstated to a civil service position that is (a) not a career executive assignment and (b) that is at least at the same salary level as the last position that he or she held as a permanent or probationary employee. . . .” (§ 19889.3.)
II. Scope and Standard of Review.
The Engineers complain the civil service system established by the California Constitution calls for permanent appointment and promotion under a “general system based on merit,” but that the CEA system results in unlawful temporary appointments, appointments not based on merit, and appointments not subject to the “general” civil service system.
In reviewing these claims, we observe the California Constitution does not grant power to the California Legislature as the United States Constitution grants power to Congress, it restricts the Legislature. (Collins v. Riley (1944)
The California State Employees’ Association (CSEA), a party herein, did challenge the legislation in 1964. CSEA lost a
The history of legislation and social conditions informs courts as to the function of positive law. (E.g., California Mfrs. Assn. v. Public Utilities Com. (1979)
III. The “General System” Mandate.
The California Constitution provides: “In the civil service permanent appointment and promotion shall be made under a general system based on merit ascertained by competitive examination.” (Cal. Const., art. VII, § 1, subd. (b).)
The Engineers contend, “The ‘special system’ established for CEAs is a flagrant deviation from the ‘general system’ mandate.” “A governor’s call for a special system for one category within the civil service, legislation permitting such a separate system, and regulations that establish such a system are all unconstitutional.” The California Constitution does not explicitly prohibit treating different classes of employees differently. Nor does it implicitly do so, so long as the mechanism does not tend to reinstate a spoils system.
“Neither the statute providing for career executive assignments nor the board’s action in putting the program in motion has created any ‘positions.’ Positions in the state service are established by the appointing power having jurisdiction in the particular agency, as authorized by law and subject to the budget. [Citation.] Civil service laws provide procedures for filling vacant positions and establish the tenure and other rights of the person lawfully appointed. [The CEA statutes] merely provide a different method of selection, and different rights on the part of the person appointed during such time as the position has been designated
In State Trial Attorneys’ Assn. v. State of California (1976)
“[T]he ‘sole aim’ of the amendment was to establish, as a constitutional mandate, the principle that appointments and promotions in state service be made solely on the basis of merit. Having established this ‘merit principle’ as a matter of constitutional law, and having established a nonpartisan Personnel Board to administer this merit principle, the constitutional provision left the Legislature with a ‘free hand’ to fashion Taws relating to personnel administration for the best interests of the State.’ ” (PLF, supra, 29 Cal.3d at pp. 183-184, fn. omitted.) And we have said before the provisions did not create “an organic blueprint for the structure of agencies within the state’s executive branch.” (California State Employees’ Assn. v. Williams (1970)
.We agree with former Assistant Attorney General Willard Shank, who pointed out some 35 years ago (opposing CSEA’s complaint in the earlier litigation): “The ‘merit’ principle was and still is dependent upon the preliminary determination that a prospective governmental employee should be qualified through a combination of education, training and experience for employment. The essence of the ‘spoils' system’ on the other hand turned upon how active a prospective appointee had been in his support of a winning political party or candidate. [*{[] The civil service reformers found in the ‘competitive examination’ the device through which qualifications could be ascertained.”
The Constitution grounds the “general system” in “merit ascertained by competitive examination.” (Cal. Const., art. VII, § 1, subd. (b).) Indeed, we previously referred to the competitive examination as “the cornerstone of the constitutional merit principle.” (Lund v. California State Employees Assn. (1990)
In Kidd v. State of California (1998)
The requirement of a competitive examination undermines the Engineers’ view the CEA statutes comprise some “special” system not contemplated by the Constitution. The fact some permanent civil servants are treated differently, because they have demonstrated by competitive examination their fitness for policymaking positions, does not mean the CEA statutes thwart the “general” civil service system mandate.
We reached a similar result in Alexander, supra, 80 Cal.App.4th at pages 536-537, rejecting a claim that statutes distinguishing certain positions created a “special” system in derogation of the California Constitution. We adhere to that view here and find CEA’s are part of the general merit system.
IV. Temporary Appointments.
The California Constitution curtails temporary appointments, which were historically used to bypass civil service regulations. (See PLF, supra, 29 Cal.3d at pp. 181-183.) The Engineers contend because a CEA appointment has no fixed term, such appointment violates the California Constitution. We agree with the premise, but not the conclusion.
A CEA appointee does not hold a “temporary appointment” within the meaning of the California Constitution. “A temporary appointment may be made to a position for which there is no employment list. No person may serve in one or more positions under temporary appointment longer than 9 months in 12 consecutive months.” (Cal. Const., art. VII, § 5.) A person can remain a CEA appointee indefinitely. (E.g., Campbell v. State Personnel Bd. (1997)
On the other hand, neither does a CEA appointee become a “permanent” holder of the CEA position. “ ‘Permanent employee’ means an employee who has permanent status. ‘Permanent status’ means the status of an employee who is lawfully retained in his position after the completion of the probationary period provided in this part and by board rule.” (§ 18528.) No set “probationary period” for a CEA exists. Viewed another way, as the Engineers do, “CEA appointees are essentially on perpetual probation.” Generally, state employees become “permanent” civil service employees upon completion of their probationary term. Only “permanent” civil service employees may become CEA appointees, but neither becoming a CEA appointee nor leaving a CEA position alters the “permanency” of a civil servant’s status.
Once a position has been classified as a CEA position, the appointing authority holds a competitive examination, after which a candidate may become eligible for appointment. (§ 19889.3.) Such employee enjoys no tenure in his position, i.e., no right to the position absent cause. (See Cronin v. Civil Service Com. (1925)
A CEA appointee must first qualify as a “permanent” civil service employee. But the fact an employee working in a CEA position has no tenure therein does not mean the statutes transgress any “permanency” requirement. The California Constitution states “permanent appointment and promotion shall be made under a general system based on merit ascertained by competitive examination.” (Art. VII, § 1, subd. (b).) As the Attorney General observes on behalf of the Board, “The section provides that all permanent appointments must be based on merit, but does not provide the converse, that all merit-based appointments must be permanent.” The Engineers fail to show the CEA statutes conflict with the Constitution in this regard.
A CEA appointee qualifies as a “permanent” state employee, with all the protections and obligations of other state employees. (Cf. Spaulding v. Philbrick (1940)
We agree persons occupying CEA positions do not neatly fit within the traditional categories of “permanent” and “temporary” employees. But the Engineers have not shown the California Constitution forbids this result. Accordingly, we reject their claim. (Collins, supra,
As explained above, the requirement of competition for CEA positions provides the bulwark against favoritism. The Engineers question whether CEA lists result from competitive examinations and question whether transfer provisions lawfully permit appointees to bypass examination. The Engineers fault the use of subjective criteria, and the lack of ranking of applicants, echoing earlier criticisms: “It is conceivable that political heads of agencies will simply look for partisans, believing that this is the most logical way to identify enthusiasm for a program.” (Musolf, supra, at p. 88; see Hackett, supra, at p. 116 [describing CSEA’s earlier lawsuit as claiming whether any “truly viable distinction can be made between ‘political’ and ‘program’ commitments’ ”].) We agree with the Engineers in part.
A. Rankings.
The employment list arises from examinations. Section 19889.3 provides in part “Eligibility for appointment to positions in the career executive assignment category shall be established as a result of competitive examination . . . .” (Italics added.) Various regulations govern the examinations, including, critically, the following:
“Examinations for appointment to Career Executive Assignment positions shall be competitive and of such character as fairly to test and determine the qualifications, fitness and ability of competitors actually to perform the duties of the position to be filled. Examinations may be assembled or unassembled, written or oral, or in the form of a demonstration of skill, or any combination of these; and an investigation of character, personality, education and experience and any tests of intelligence, capacity, technical knowledge, manual skills, or physical fitness which the appointing power subject to the approval of the executive officer deems are appropriate, may be employed.
“It is the purpose of this selection system to provide examination options that are particularly suited to fill efficiently each vacant position. Examination results need not be expressed in specific ratings of individuals. The person appointed as a result of a competitive examination must be well qualified and carefully selected. The appointing power is required to promulgate the qualifications that will be used as standards in conducting the examination but is not required to distinguish between groups or individuals as to who is qualified or not qualified or as to relative level of qualification. Examinations may range from (1) á review of applications from which a selection is made, to (2) the use of supplemental applications, appraisal of performance and executive potential, management exercises and/or structured interviews.” (Cal. Code Regs., tit. 2, former § 548.40.)
Although this regulation purports to require the use of “competitive” examinations, it also states the appointing authority “is not required to distinguish between groups or individuals as to who is qualified or not qualified or as to relative level'of qualification.”
The Engineers contend this regulation does not require rankings among applicants and urge examinations without rankings do not qualify as competitive examinations. We agree. We previously declared the regulation invalid. (Alexander, supra, 80 Cal.App.4th at pp. 540-544.) We adhere to our view.
A competitive examination must distinguish the relative merits of candidates. As former Presiding Justice Robert K. Puglia put it, “The notion that defendants can hire any applicant who passes an examination without consideration
The Board and the Department seek to distinguish Kidd, supra,
The Attorney General, on behalf of the Board, concedes CEA appointments must reflect “merit-based” decisions. But, in a telling passage, he likens the examination process to athletics: “In certain athletic competitions, such as diving, figure skating, and gymnastics, the performance of competitors is judged on the basis of objective criteria but without comparison of the performance of each competitor relative to each other. Notwithstanding that competitors are judged independently and not relative to each other, each athlete is certainly ‘competing’ against the others, and the ‘merit’ of each competitor’s performance is ascertained. fl[] Granted, ... the competitors are assigned scores, which results in rankings. But the purpose of scores and rankings in such events is to determine the winner of the competition. In the civil service, however, the objective of the examination process is not to determine the ‘winner’ or to determine who is the best competitor relative to the others.” Respectfully, we disagree. As the Engineers put it, “Competition does not allow
Ranking does not mean the highest scoring candidate receives the job; sometimes the appointing authority may choose among the top three candidates or top rank or top three ranks. (See §§ 19056-19057.4; McGowan, supra,
We reject an implication that ranking precludes the use of subjective criteria. “It would be perverse to sanctify rank ordering of exam scores in a quest to maximize competitiveness if, as a result, other considerations relevant to merit and fitness are discounted or swept aside[.]” (McGowan, supra,
However, an examination measuring only purely subjective criteria would not be competitive. The dictionary defines “Competitive Civil Service Examination” in part as “Examination which conforms to measures or standards which are sufficiently objective to be capable of being challenged and reviewed by other examiners of equal ability and experience.” (Black’s Law Dict. (6th ed. 1990) p. 284, col. 2.) This is a near-verbatim quotation from a seminal New York case, Fink v. Finegan (1936)
A leading treatise points out, “Unless the law requires [otherwise], it is usually required that the examinations be competitive examinations, if practicable, because selection of the most competent through competitive examination is the heart and purpose of civil service laws. [^] A competitive examination has been defined as one which employs a standard or measure sufficiently objective so as to be capable of being challenged and reviewed by other examiners of equal ability and experience. ft[] Noncompetitive examinations are the exception and not the rule and are permitted only where it is not practicable to make the appointment by competitive examination. A [statutory] provision for a noncompetitive examination was held to be void where the [New York] constitution required a competitive examination. Competitive examinations may, on occasion, have some noncompetitive provisions or qualifications.” (McQuillin, The Law of Municipal Corporations (3d ed. 2001) Elections, Officers and Employees, § 12.78.05, pp. 420-422, fns. omitted.) Although the Board and the Department explicitly argue a competitive examination does not require rankings, at bottom they impliedly contend a ranked examination (regardless of the label of “competitive”) is impracticable for a CEA position. Some authorities allow exemptions where competition would be impracticable. (Field, Civil Service Law (1939) Examination, p. 85 (hereafter Field) [“whether or not an examination is practicable is a question of law”].) But those authorities are based on the applicable laws. (See, e.g., N.Y. Const., art. 5, § 6 [“merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive”]; Fink v. Finegan, supra, 270 N.Y. at pp. 360-361 [
A particular ground for finding a competitive (that is, ranked) examination “impracticable” is when the position involved is “confidential.” That appears to be part of the claim herein, that the nature of a CEA (a policymaking official) is such that rankings are impracticable. Many civil service systems allow exemptions for confidential employees. (See Field, supra, Classification, pp. 71-74.) “Whether a confidential employee is exempt or not depends upon the statute or charter; the fact that the position is one involving duties and relationships of a confidential nature does not in and of itself render the position exempt from the normal provisions applicable to the competitive classified service.” (Id. at p. 71, fn. omitted.) As stated above, the California Constitution does not exempt CEA’s. Nor do the CEA statutes. Nor could they, given the Constitution.
At oral argument it was suggested that “competition” can mean different things in different contexts and the judiciary should defer to the Board’s reasoned decision to create an examination open to a broad range of candidates, evaluated with procedural fairness and including the appeal rights provided by the CEA system, but one not including rankings. This facially deferential approach would in fact amount to an abdication of our responsibility to enforce the People’s will as expressed in the 1934 initiative and in the implementing statutes. Although the unbroken line of authorities described above (including decisions of this court in Kidd, supra,
In 1853, so-called pass examinations were instituted as a condition of appointment to some federal positions. We would call them “pass-fail” examinations, designed to discriminate between qualified and unqualified applicants, but not to discriminate among the qualified applicants. (Van Riper, supra, p. 52; White, The Republican Era: 1869-1901; A Study in Administrative History (1958) p. 284 (White); Shafritz, Public Personnel Management: The Heritage of Civil Service Reform (1975) p. 16 (Shafritz).) “Such examinations took the form of ‘pass’ examinations; there was no real competition, and they served at best the single purpose of keeping the utterly incompetent out.” (Kingsley, Public Personnel Administration (3d ed. 1950) p. 22.) The “competitive examination” was designed to do more, to institute “a simple mode of ascertaining the relative theoretical qualifications of applicants for office . . . .” (Clarke, Civil Service Law (2d ed. 1891) p. 26; see Van Riper, supra, pp. 98-99, 104.)
For our purposes it is enough to observe that the use of the expression “competitive examination” historically excluded the notion of a “pass-examination.” Essentially, the Board here wants to employ a pass-examination.
The requirement of a “competitive examination” for a CEA applicant was present when the CEA system was adopted in
A venerable rule of statutory construction informs that when a term of art has been judicially construed, a subsequent legislative enactment using that term is presumed to employ that judicial construction, absent some indication in the statute to the contrary, particularly where the statutes touch on the same area of the law. (See Foley v. Interactive Data Corp. (1988)
Section 19889.3 itself seems to recognize the difference between a determination of minimal fitness and a competitive examination. It provides for a “competitive examination of persons . . . who meet such minimum qualifications as the State Personnel Board may determine are requisite to the performance of high administrative and policy influencing functions.” Thus, the Board has the power to define the “minimum qualifications” necessary to be considered for a CEA position. Out of those persons, a competitive examination must then be held. As stated, the term “competitive examination” excludes the idea of a pass-examination. Therefore, a statute calling for competitive examinations does not authorize the regulation allowing the use of noncompetitive examinations. The regulation is invalid under the statute.
There is a further point to consider. At oral argument the suggestion was made that the appeal right precludes awarding a CEA job to an applicant on the basis of patronage and therefore rankings are not necessary. Apart from the discussion above regarding the meaning of the statutory term “competitive examination,” which shows rankings are, indeed, necessary, we point out that absent rankings an appeal would be futile.
An example posed at oral argument is worth discussing in this connection. Suppose a CEA position was vacant and a nonranked examination was given. Out of 100 applicants, 50 passed the examination. One applicant was given the job, and one or more applicants appealed, claiming the appointee was a political contributor, but otherwise less qualified for the job than noncontributors. We accept the view that the challengers could appeal the appointment to the Board, claiming it was made in violation of the regulations because political contributions could not form a legitimate “qualification” for use in the CEA examination. (See Cal. Code Regs., tit. 2, former § 548.40.) But how could they prove it? Because the appointing power has no need to compare the relative merits of the candidates, how could the challengers begin to show the basis for their claim, apart from showing that the successful applicant indeed had made a political contribution to the party in power? That fact alone would not disqualify the applicant nor in most cases even raise an inference of impropriety. The challengers would have no practical way to meet their burden to show the appointment of a minimally qualified, but less qualified person was
Now, suppose the examination had been “competitive” in the sense we have used the term, and the results were expressed in several ranks. Assuming no rule of three or rule of three ranks applied to CEA’s, the appointing authority could still choose any of the 50 passing candidates. The appointing authority might choose No. 48 out of 50. But if it did so, there would be a tangible record. Such evidence, coupled with evidence of political contribu-tation by No. 48, would raise an inference of impropriety. Then the appointing authority could explain the basis of its decision. There might be a legitimate basis for the appointment, but the point is with rankings, the issue can be litigated. The appeal would be operative in the sense that there would be a fair chance of unearthing misconduct, if misconduct occurred. Where scoring takes place, a dissatisfied applicant can at least make out a statistically sound basis for an appeal. (See In re Crowley (1984)
We add that most public employment testing and selection in California is conducted by efficient, dedicated public officers. However, misconduct is not an abstract threat, nor something relegated to the pages of history. (See, e.g., Shafritz, supra, pp. 1-3.) In the recent past in California there have been instances of misconduct in competitive examinations, and in some cases proof of such unlawful conduct would have been made impossible or at least far more difficult, absent the evidence and presumptions provided by the rankings of “competitive” examinations. (See, e.g., Ravenswood Teachers Assn. v. Ravenswood City Sch. Dist. (1986) 10 Cal. Pub. Employee Rptr. 17059 [test scores skewed to disqualify a union candidate]; State Employee Trades Council v. State of California (1982) 6 Cal. Pub. Employee Rptr. 13089 [pattern of anti-union conduct leading to a poor rating, giving rise to inference of impropriety]; see also Kidd, supra,
Thus, we return to the origin of the “competitive” examination: Its purpose was (and is) to provide accurate information to the hiring authority about the relative merits of the candidates, but not unfairly (or unconstitutionally) circumscribe the appointing power’s ability to make the actual selection. Contrary to the view expressed at oral argument, rankings are a necessary component of a “competitive” examination, for absent ratings the examination becomes a “pass-examination” which only minimally prevents spoils to the extent it weeds out the patently unfit. That is not the system adopted in California,
Finally, and tellingly, nobody has cited to this court any authority equating a “competitive examination” with a pass-fail examination, which eliminates rankings and merely weeds out the patently unfit. Such result would turn the clock back on civil service reform to 1853 and allow spoils. We reject such result.
B. Transfers.
In a concise argument the Engineers urge: “Appointments to CEA positions through ‘transfer’ are clearly unconstitutional. Article VII, Section 1(b) makes ‘competitive examination’ mandatory. In addition, these regulations are violative of Government Code Section 19889.3, which similarly requires appointment through competitive examination.”
One Board regulation provides: “With the approval of the executive officer” an appointing authority may transfer an employee from one CEA position “to another at substantially the same or lower level of salary.” (Cal. Code Regs., tit. 2, § 548.95.) Another provides: “With the approval of the executive officer, and the concurrence of the affected employee, an appointing power may transfer an employee who has permanent status in a position in the general civil service in the class from which transfer will occur to a position in the career executive assignment category which is at substantially the same level of salary as the general civil service class. Such transfer may, with the written approval of all parties, be made between appointing powers.” (Id., § 548.96.)
The Department maintains “the Board is constitutionally empowered to determine that ‘from’ and ‘to’ classifications involved in a transfer are so similar that an examination for, and performance in, the former demonstrates the appointee[’]s qualifications and fitness for the latter.” In short, “two examinations are unnecessary to determine merit, efficiency and fitness when classifications are comparable.”
“Transfer” means “The appointment of an employee to a position in a different class that has substantially the same level of duties, responsibility, and salary, as determined by board rule, under the same or another appointing authority.” (§ 18525.3, subd. (b).) “A transfer, as defined in Section 18525.3, may be accomplished without examination. The board may require an employee to demonstrate in an examination that he or she possesses any additional or different requirements that are included in the minimum qualifications of the class to which the employee is transferring.” (§ 19050.4.)
In Noce v. Department of Finance (1941)
We reject the claim a new examination must occur before transferring a person from one CEA position “to another at substantially the same or lower level of salary.” (Cal. Code Regs., tit. 2, § 548.95.) This does not invite spoils, but the efficient transfer of able CEA appointees. If a transfer occurs for political reasons, the Board can undo it: The Engineers have not shown a facial flaw in such transfers.
A more difficult issue arises with the regulation allowing a person to become a CEA appointee without ever taking an examination for any CEA position. Only a permanent civil servant may become a CEA appointee and, presumably, such person took a competitive examination to reach his or her current civil service position. The regulation allows conversion of a vacant position into a CEA position, and the subsequent transfer of a civil servant into such CEA position, without examination. Before converting a position, the Department, subject to review by the Board, must determine it qualifies as a position “of a high administrative and policy influencing character.” (§ 19889.)
In our view the very act of converting the position into a CEA position alters its character and makes it unlike non-CEA positions. Although, painted with a broad brush, the position (pre- and postconversion) may involve the same general duties (e.g., managing a particular program), the position assumes a distinct character when it becomes a CEA position.
A memorandum from the Board details the reason for the adoption of the regulation allowing non-CEA appointees to transfer into a CEA position. In the course of describing a variety of modifications to the CEA system, the memorandum explains: “Incumbents of ‘parallel’ civil service classes will have the opportunity to transfer to the ‘parallel’ Career Executive Assignment level. This transfer may become desirable due to the proposed changes described in this package as well as possible future changes such as additional fringe benefits. The staff believe that incumbents of general civil service classes which are parallel to C.E.A. levels should also be given the opportunity to benefit from these program improvements since they are assuming executive-level responsibilities. ... A new State Personnel Board Rule 548.96 ... is proposed for this purpose. The Rule provides for transfer similar to the transfer procedure used in general civil service.” (Cal. State Personnel Board, Proposed CEA Program (Nov. 19, 1973) p. 47; see id. at p. 68.) But if persons assume new “executive-level responsibilities,” such persons assume dissimilar positions, and transfers without examination would transgress the merit principle.
But, as in Noce, supra,
We agree with the Department that many employee classifications overlap with other classifications, that “it is not practical to require examinations before each and every appointment to reaffirm employee fitness,” and different good reasons exist for different types of employee transfers, even between positions with similar duties and salaries. But the Engineers do not challenge the many types of ordinary employee transfers described in the Department’s brief, they challenge the purported power to transfer a non-CEA employee into a CEA position, without any competitive CEA examination.
The general transfer authority provided by section 19050.4 does not authorize a regulation dispensing with competitive examinations for non-CEA employees moving into CEA positions because of the distinct character of the latter. (Cf. § 18525.3, subd. (b).) Instead, as stated, we construe the more specific statute, section 19889.3, to require competitive examinations. Accordingly, the regulation (Cal. Code Regs., tit. 2, § 548.96), as construed by the Department to eliminate the need for examinations before transferring a non-CEA appointee into a CEA position, exceeds statutory authority. (See Caldo Oil Co. v. State Water Resources Control Bd. (1996)
The Department suggests this conclusion creates an administrative burden. We cannot agree the burden caused by giving examinations prior to transfers justifies trenching on the bulwark of the merit principle, viz., the competitive examination. The CEA examination “may be assembled or unassembled, written or oral, or in the form of a demonstration of skill, or any combination of these; and an investigation of character, personality, education and experience and any tests of intelligence, capacity, technical knowledge, manual skills, or physical fitness which the appointing power subject to the approval of the executive officer deems are appropriate, may be employed. [^] . . . Examinations may range from (1) a review of applications from which a selection is made, to (2) the use of supplemental applications, appraisal of performance and executive potential, management exercises and/or structured interviews.” (Cal. Code Regs., tit. 2, former § 548.40.) This definition allows great flexibility and informality in the conduct of examinations, e.g., reviewing resumes. This is often referred to as a “nonassembled” (or, in this regulation, “unassembled”) examination. Such examinations have been used for over a hundred years. (See Van Riper, supra, p. 140.) There is no support in the record for the contention that requiring a competitive examination prior to transfers into CEA positions will prove administratively onerous.
VI. Conclusion.
The judgment in this case concluded the CEA system as a whole did not violate the California Constitution, a conclusion with which we agree. The CEA system—in large—does not contravene the “merit principle,” nor reinstate a spoils system, nor result in illegal temporary or illegal permanent appointments and does not transgress the general system requirements
We are aware that the Board has amended the regulation at issue in response to Alexander, supra,
Disposition
The judgment, as modified by this opinion, is affirmed. Each party is to bear its own costs.
Hull, J., concurred.
Dissenting Opinion
I disagree with much of my colleagues’ analysis. In my view, the majority opinion constitutes unwarranted judicial second-guessing of decisions of the legislative and executive branches of government—second-guessing not compelled by the Constitution—and lacks an appreciation of the role of career executives in state government and the need for latitude in the selection of persons for career executive assignments. For reasons that follow, I conclude the trial court got it right in rejecting all of plaintiffs’ challenges to career executive assignments. Hence, I would affirm the judgment in its entirety.
I
The positions at issue may be defined by reference to the following statutory provisions:
“ ‘Career executive’ means an employee appointed from an employment list established for the express purpose of providing a list of persons with permanent status in the civil service who are available for career executive assignments, in which selection, classification, salary, tenure, and other conditions of employment may be varied from those prevailing ... for other employees in the state civil service.” (Gov. Code, § 18546.)
“ ‘Career executive assignment’ means an appointment to a high administrative and policy influencing position within the state civil service in which the incumbent’s primary responsibility is the managing of a major function or the rendering of management advice to top-level administrative authority. Such a position can be established only in the top managerial levels of state service and is typified by broad responsibility for policy implementation and extensive participation in policy evolvement. Assignment by appointment to such a position does not confer any rights or status in the position other than provided [in section 19889 et seq.].” (Gov. Code, § 18547.)
Career executive assignments (CEA’s), and the employees who hold these positions, are treated differently from other state positions and employees in the manner of their selection and in the continuation of their appointments. Plaintiffs’ challenges to the CEA employment scheme fall into the broad categories of (1) attacks on the nature of the position and (2) attacks on the manner in which vacancies are filled.
II
Plaintiffs begin by claiming that different treatment of CEA positions creates a
Plaintiffs seem to believe that all employees must be treated identically, regardless of inherent differences in their positions. The simple answer is that the constitutional requirement that a law be general does not preclude the Legislature from making reasonable classifications. (Lelande v. Lowery (1945)
III
Among other things, plaintiffs assert that CEA appointments are unconstitutional because CEA’s are not “permanent” as required by the California Constitution, which provides that permanent appointment and promotion must be under a general civil service system, and limits temporary appointments to no more than nine months in a 12-month period. (Cal. Const., art. VII, §§ 1, 5.)
Because CEA’s are not limited to nine-month periods, they are not “temporary” appointments within the meaning of article VII, section 5 of the Constitution. Nevertheless, plaintiffs’ argument falters on the assumption that “permanency” must mean the same thing for every position or class of positions. In fact, the Constitution does not define “permanent,” nor does it identify the attributes that are essential to a permanent position.
“Permanent” is a word of somewhat flexible meaning. (In re Eleanor A. (1978)
It is true that an employee in a CEA position lacks the full range of protections accorded civil servants.
Accordingly, in my view, CEA positions bear sufficient attributes of “permanency” as to be within legislative discretion in the implementation of a constitutional provision calling for undefined “permanent appointment and promotion.” (See Cronin v. Civil Service Com. (1925)
IV
Plaintiffs also claim that, at the time of the trial court’s ruling, the method of selecting CEA’s was unconstitutional because an appointing power was not required to numerically rank those who undertake the examination. I disagree.
In establishing the category of CEA’s, the Legislature delegated to the State Personnel Board (Board) the responsibility of establishing by rule a system of merit personnel administration specifically suited to the selection and placement of executive personnel. (Gov. Code, § 19889.) In doing so, the Legislature indicated an intent that persons appointed to CEA positions be “well-qualified and carefully selected.” (Ibid.)
While CEA positions are subject to a merit system, the Legislature provided that the usual rules governing the selection, classification, and tenure of civil service employees shall not apply unless the Board provides otherwise by rule. (Gov. Code, § 19889.2.) The Legislature also provided that “[eligibility ... to positions in the career executive assignment category shall be established as a result of competitive examination of persons with permanent status in the civil service who meet such minimum qualifications as the State Personnel Board may determine are requisite to the performance of high administrative and policy influencing functions.” (Gov. Code, § 19889.3.)
In implementing these provisions, the Board promulgated the following rule, Much was in effect at the time the dispute in this case arose:
“Examinations for appointment to Career Executive Assignment positions shall be competitive and of such character as fairly to test and determine the qualifications, fitness and ability of competitors actually to perform the duties of the position to be filled. Examinations may be assembled or unassembled, written or oral, or in the form of a demonstration of skill, or any combination of these; and an investigation of character, personality, education and experience and any tests of intelligence, capacity, technical knowledge, manual skills, or physical fitness which the appointing power subject to the approval of the executive officer deems are appropriate, may be employed.
“It is the purpose of this selection system to provide examination options that are particularly suited to fill efficiently each vacant position. Examination results need not be expressed in specific ratings of individuals. The person appointed as a result of a competitive examination must be well qualified and carefully selected. The appointing power is required to promulgate the qualifications that will be used as standards in conducting the examination but is not required to distinguish between groups or individuals as to who is qualified or not qualified or as to relative level of qualification. Examinations may range from (1) a review of applications from which a selection is made, to (2) the use of supplemental applications, appraisal of performance and executive potential, management exercises and/or structured interviews.” (Cal. Code Regs., tit. 2, former § 548.40.)
Relying upon this court’s decision in Kidd v. State of California (1998)
Kidd was concerned with a Board regulation establishing a supplemental certification procedure based upon race and gender. The basic hiring procedures involved in that case provided for competitive examination with ranking according to performance, and limited employment to those in the top three ranks. (Kidd, supra,
Kidd found no constitutional or statutory authority for the Board to override the merit system by reference to race and gender: “The Board’s supplemental certification regulation injects racial, ethnic and sexual qualifications into a hiring system whose constitutional basis commands that race, ethnicity and sex be disregarded. Because the merit principle is intended to reward merit ascertained by competitive examination, that principle is utterly inconsistent with color blindness for some and color consciousness for others.” (Kidd, supra,
Thus, the infirmity in the regulation at issue in Kidd was the interjection of inappropriate, nonmerit factors into the hiring process in disregard of the established procedures for competitive examination. The established procedures involved in that case included the ranking of competitors, and the discussion in Kidd subsumed the fact the Legislature already had determined that, in the employment categories at issue, ranking of competitors was the appropriate method for carrying out the constitutional requirement of competitive examination.
Because Kidd was not required to consider whether ranking of competitors is essential to a competitive examination process in all circumstances, it does not compel the conclusion urged by plaintiffs.
Similarly, Almassy involved a county civil service selection procedure that embraced the ranking of candidates. The plaintiff, who received a failing grade, challenged the procedures insofar as they included an oral interview and a confidential report from the candidate’s department head. Almassy concluded that, although use of oral interviews and confidential reports would involve subjective evaluation, the county civil service commission was within its discretion in utilizing those procedures. (Almassy, supra, 34 Cal.2d at pp. 398-405.)
As was the situation in Kidd, the court in Almassy was not required to determine whether ranting is an essential element of a competitive examination in all cases.
For reasons that follow, I conclude numerical ranting is not an essential requirement for the CEA selection process.
CEA positions are required by both constitutional and statutory provision to be
The requirement of competition, standing alone, does not compel the conclusion urged by plaintiffs. In this respect, I note that “competition” is generally defined as “the act or action of seeking to gain what another is seeking to gain at the same time and usu[ally] under[,] or as if under[,] fair or equitable rules and circumstances” and/or “a common struggle for the same object especially] among individuals of relatively equal standing.” (Webster’s 3d New Internat. Dict. (1976) p. 464.)
Although, as discussed by the parties, a sports analogy with scoring and ranting provides one relevant example of competition, it does not demonstrate a universal understanding of the concept. To the contrary, society often speaks of “competition” in ways that do not imply formal scoring or ranting of competitors, particularly with respect to business, economics, and employment situations. (See, e.g., Bancroft-Whitney Co. v. Glen (1966)
Because the word “competition” does not necessarily imply scoring and ranting, the position urged by plaintiffs has no merit unless the public employment context necessitates that scoring and ranting be read into the constitutional requirement. In this respect, courts must be mindful of our limited judicial role.
In establishing the state civil service, the Constitution is terse. Article VII, section 1, subdivision (a) provides: “The civil service includes every officer and employee of the State except as otherwise provided in this Constitution.” Subdivision (b) provides: “In the civil service permanent appointment and promotion shall be made under a general system based on merit ascertained by competitive examination.” In sections 2 and 3, article VII establishes the Board as a nonpartisan entity to enforce and administer the civil service laws.
These brief and straightforward provisions are not intended to engrave on the Constitution particular aspects of a civil service system or to restrict the Legislature to any particular mode of personnel administration. (See Pacific Legal Foundation v. Brown (1981)
Although the Legislature has determined that, in most instances, the requirement of competitive examination should be accomplished through scoring and ranking of candidates (Gov. Code, §§ 19056-19057.4), it has authorized the Board to
Hence, the Legislature and the Board determined that, with respect to the limited category of CEA positions, competitive examinations do not require scoring and ranking. That determination is entitled to a presumption of constitutionality, and any doubts must be resolved in favor of the exercise of authority by the Legislature and the Board. (Pacific Legal Foundation v. Brown, supra,
Where, as here, the challenged provision was adopted with the relevant constitutional prescriptions in mind, and the plaintiffs contend that the provision is unconstitutional on its face, the plaintiffs bear a heavy burden in attempting to demonstrate such unconstitutionality. (Pacific Legal Foundation v. Brown, supra, 29 Cal.3d at pp. 180-181.) To meet this burden, they must demonstrate that the challenged provision inevitably poses a present total and fatal conflict with applicable constitutional prohibitions. (Ibid.)
The Constitution requires that appointment and promotion be based upon merit ascertained by competitive examination, but it does not purport to provide any minimum requisites that will render an examination competitive. From my review of the relevant authorities, I am unable to distill a minimum formula that, in all instances, is either essential or sufficient to make an employment examination competitive.
One fundamental requisite of a competitive examination is that it be open to all who meet the minimum requirements for candidates, as distinguished from a mere qualifying examination for previously picked candidates. (Almassy, supra,
Within these general limitations, the Legislature and the Board, “in working out the problem of measuring the candidates’ suitability for the position to be filled, should not be proscribed in adopting a method of selection which [they deem] best calculated to produce the desired result.” (Almassy, supra,
The Board’s regulatory scheme for the examination and appointment of persons to CEA positions requires the appointing power to promulgate, in advance, the qualifications
In assessing the sufficiency of these examination procedures, courts must keep in mind we are dealing with a limited category of management positions that are of a high administrative and policy-influencing character. Courts have long recognized that, as a matter of practical necessity, employers must be accorded substantial discretion with respect to high-level employment positions of a sensitive managerial or confidential nature. (See Cotran v. Rollins Hudig Hall Internat., Inc. (1998)
“Measuring the effective performance of such an employee involves the consideration of many intangible attributes such as personality, initiative, ability to function as part of the management team and to motivate subordinates, and the ability to conceptualize and effectuate management style and goals.” (Pugh v. See’s Candies, Inc. (1988)
This is no less true with respect to employees in high administrative and policy-influencing positions in public employment. The examination and appointment provisions for CEA positions recognize the need for flexibility and discretion in making high-level managerial appointments while requiring procedures—such as the advance promulgation of criteria and methodology, wide dissemination of examination notices, and the right to postap-pointment review by the Board—to ensure that the process remains competitive.
The civil service includes a vast array of jobs and positions. Some jobs lend themselves well to objective testing, while in other cases subjective evaluation is necessary. (See Almassy, supra, 34 Cal.2d at pp. 398-399.) Indeed, the majority opinion rejects the claim that competitive testing cannot include subjective criteria.
Similarly, the selection process for some positions lends itself well to numerical rating and ranking of applicants. But, as the majority opinion recognizes, “[r]anking does not mean the highest scoring candidate receives the job; sometimes the appointing authority may choose among the top three candidates or top rank or top three ranks.” (See Gov. Code, §§ 19056-19057.4.) It does not appear that the “rule of three” candidates or ranks has ever
In at least one aspect particularly significant here, the selection process for CEA positions differs from the process used with respect to most civil service positions. In general, civil service appointments are made from eligible lists. (Gov. Code, §§ 18900, 19050.) Eligible lists are established for classes of position, but are not position-specific. (Gov. Code, §§ 18532, 18532.2, 18900.) Once established, an eligible list may remain in effect for a considerable period, even years; and during that time, appointments made to positions within the class are made from the list. (Gov. Code, §§ 18901, 19050.) In contrast, CEA competitive examinations are position-specific. An appointing power conducts a competitive selection process for the particular CEA position to be filled. (Cal. Code Regs., tit. 2, § 548.30.)
As the majority concede, the nature of a CEA position requires that an appointing power be allowed to exercise considerable subjective judgment in evaluating qualifications. Because the person who obtains the appointment must be well qualified and carefully selected, it is inconceivable that, if required to assign scores, an appointing power would not assign to the candidate it deems best qualified a score sufficient to place him or her in a reachable rank. Moreover, because the CEA selection process is position-specific rather directed to creating an eligible list for future appointments, it would appear that the imposition of a requirement that the appointing authority formally score and rank unsuccessful competitors would be a meaningless gesture that confers form but no substance to the competitive nature of the process.
What all of this boils down to can be summarized briefly. The Constitution requires that the appointment selection process be competitive, but otherwise leaves the Legislature and the Board with a free hand in devising a process best suited to the position to be filled. Whether a selection
I must acknowledge that the discussion of this issue, in the majority opinion and in this dissent, may appear to be academic. The majority held this case pending a determination in Alexander v. State Personnel Bd. (2000)
Under the compulsion of Alexander, the Board amended its regulation governing the CEA selection process. (Cal. Code Regs., tit. 2, § 548.40.) The regulation now requires an appointing power to assign a score to applicants and to place them within six broad ranks. The candidate selected for appointment must be in the top three ranks; if there are fewer than five candidates in those ranks, lower ranks may be added until there are at least five candidates available.
Although the Board’s regulation now requires scoring and ranking in the CEA selection process, this was done under the compulsion of the decision in Alexander. That decision, and now this one, stand as the only decisional authority to hold that scoring and ranking are invariable, constitutionally mandated elements of a competitive selection process. That decision and this one effectively will tie the hands of the Legislature and the Board in devising competitive selection processes appropriate to various positions in the civil service.
Because the decision in Alexander, and now in this case, will operate prospectively to limit the discretion of the Legislature and the Board, the issue is not moot. (See Save Stanislaus Area Farm Economy v. Board of Supervisors (1993)
Having concluded that Alexander and the majority opinion in this case constitute unwarranted judicial intrusion upon the authority of the Legislature and the Board with respect to the CEA selection process, I register my dissent.
V
Plaintiffs’ final contention is very brief. Board rules permit, in some circumstances, the transfer of an employee into a
The Constitution requires competitive examinations for appointment and promotion. (Cal. Const., art. VII, § 1, subd. (b).) It does not expressly preclude lateral transfer of employees without examination.
The propriety of lateral transfers of employees without competitive examination has long been recognized in our civil service system. (Gov. Code, §§ 18525.3, 19050.2-19050.7; Cal. Code Regs., tit. 2, §§ 425-435.) The Board rules permitting transfer of employees to CEA positions are consistent with the rules applicable to other civil service positions.
It is, of course, conceivable that an appointing power might attempt to effectuate what is in actuality a promotion in the guise of a transfer. Such an attempt would violate our constitutional and statutory civil service laws. (See Pinion v. State Personnel Board (1938)
VI
For the reasons stated above, I agree with the trial court that there is no merit in plaintiffs’ constitutional attacks on the decisions of the legislative and executive branches of government concerning the creation and implementation of CEA’s. Accordingly, I would affirm the trial court’s judgment in its entirety.
On August 10, 2001, the opinion was modified to read as printed above. Appellants’ petition for review by the Supreme Court was denied October 10, 2001.
Notes
The employee is a permanent civil servant with the full range of civil service protections against termination from employment at the level of the non-CEA position held previously; it is only termination of the CEA position, and resultant return to non-CEA status, that is not subject to the full range of usual civil service protections.
The results of the process may be used to make additional appointments to CEA positions that are substantially the same as the position for which the original examination was announced if; (1) the appointing power specifies in the announcement for the original examination the additional positions for which the competition shall be used, the methods and standards of evaluation to be used, and the time for which the results will be used; or (2) the appointing power later announces that applications will be accepted as a supplement to the original announcement and that all otherwise qualified persons who apply will be considered with those who applied under the original announcement. This is intended to facilitate future competition by reducing the need for repetitive evaluation but does not operate to confer eligibility for other positions in the CEA category. (Cal. Code Regs., tit. 2, § 548.30.)
California Code of Regulations, title 2, section 548.95 provides: “With the approval of the executive officer, an appointing power may transfer an employee from one career executive assignment position to another at substantially the same or lower level of salary. Such transfer or demotions may, with the written approval of all parties, be made between appointing powers. Transfers between positions in different Career Executive Assignment levels and assignments shall be governed by the standards contained in Sections 430, 431, 432, 433 and 435 for transfer between general civil service classifications.”
California Code of Regulations, title 2, section 548.96 provides: “With the approval of the executive officer, and the concurrence of the affected employee, an appointing power may transfer an employee who has permanent status in a position in the general civil service in the class from which transfer will occur to a position in the career executive assignment category which is at substantially the same level of salary as the general civil service class. Such transfer may, with the written approval of all parties, be made between appointing powers.”