Van De Kamp, 030184 CAAGO, AGO 83-401

• Case Date: March 01, 1984
• Court: California

JOHN K. VAN DE KAMP Attorney General ANTHONY S. DA VIGO Deputy Attorney General AGO 83-401 No. 83-401 California Attorney General Opinion Office of the Attorney General State of California March 1, 1984          THE STATE PERSONNEL BOARD has requested an opinion on the following question:          Does section 7.9 of the Government Code, providing in part that at the request of the Controller or the Treasurer two employees of each officer who hold permanent civil service status and have been designated deputies under that section shall be classified and compensated as career executives at Category Level IV or Category Level V, violate section 1(b) or 3(a) of article VII of the California Constitution?          CONCLUSION          Section 7.9 of the Government Code does violate sections 1(b) and 3(a) of article VII of the California Constitution.          ANALYSIS          Government Code1 section 7.9 provides as follows:

         "Notwithstanding any provision of law to the contrary, the Controller or the Treasurer may designate any deputy of his or her office to act in his or her place and stead on any state board, commission, committee or governing board of a state agency with respect to the exercise of statutory powers and duties of any of those bodies. The deputy, while sitting on a board, commission, committee or governing board of a state agency may exercise the same powers that the Controller or the Treasurer may exercise as if he or she were personally present. The Controller or the Treasurer so designating a deputy shall be responsible for the acts of the deputy acting under the designation in the same manner and to the same extent that the Controller or the Treasurer is responsible for the acts of the deputy performing his or her official duties as deputy to the Controller or Treasurer.          "At the request of the Controller or the treasurer, two employees of each office, who hold permanent civil service status and have been designated deputies under this section, shall be classified and compensated as career executives at Category Level IV or Category Level V."

         The present inquiry is whether the second paragraph of this section, added by chapter 828 of the Statutes of 1982, violates the following provisions of article VII of the California Constitution. Section 1 provides for competitive examinations in the state civil service:

         "(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."

         Section 3, subdivision (a), vests in the State Personnel Board ("board," post) the authority to prescribe classifications:

         "The board shall enforce the civil service statutes and, by majority vote of all its members, shall prescribe probationary periods and classifications, adopt other rules authorized by statute, and review disciplinary actions."

         We first address the board's constitutional prerogative to prescribe classifications. In furtherance of this constitutional power the board is statutorily required to create and adjust classes of positions in the state civil service, including a descriptive title and a definition outlining the scope of the duties and responsibilities for each class of positions. (§§ 18702, 18800, 18802.) A "class" is defined (§ 18523) as:

         ". . . a group of positions sufficiently similar with respect to duties and

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