PROFESSIONAL ENGINEERS IN CALIFORNIA GOVERNMENT et al., Plaintiffs and Appellants, v. ARNOLD SCHWARZENEGGER, as Governor, etc., et al., Defendants and Respondents; JOHN CHIANG, as State Controller, etc., Defendant and Appellant; CALIFORNIA ATTORNEYS, ADMINISTRATIVE LAW JUDGES AND HEARING OFFICERS IN STATE EMPLOYMENT, Plaintiff and Appellant, v. ARNOLD SCHWARZENEGGER, as Governor, etc., et al., Defendants and Respondents; JOHN CHIANG, as State Controller, etc., Defendant and Appellant; SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 1000, Plaintiff and Appellant, v. ARNOLD SCHWARZENEGGER, as Governor, etc., et al., Defendants and Respondents; JOHN CHIANG, as State Controller, etc., Defendant and Appellant, 50 Cal. 4th 989

Opinion GEORGE, C. J. On December 1, 2008—faced with (1) a large current state budget deficit that was projected to grow to more than $40 billion by the end of the 2009-2010 fiscal year, and (2) the very serious prospect that by as early as February 2009 the state would run out of cash to pay its ordinary expenses—the Governor of California declared a fiscal emergency, called the Legislature into special session, and submitted to the Legislature a comprehensive plan to address the budget problem.

The Governor’s budget plan included, among many other cost-saving features, two proposed statutory provisions that would direct the Department of Finance and the Department of Personnel Administration to implement, for the remainder of the 2008-2009 fiscal year and for the entire 2009-2010 fiscal year, a mandatory one-day-a-month unpaid furlough of most state employees employed by the executive branch, a proposal that would save the state approximately $37.5 million per month by reducing by approximately 5 percent the wages paid to each of the affected employees.

Two and one-half weeks later, on December 18, 2008, the Legislature passed its own proposed comprehensive budget legislation, comprising 15 separate budget-related bills. Among many other differences from the Governor’s proposal, the Legislature’s alternative plan did not include the Governor’s recommended furlough provision.

On December 19, 2008, the Governor issued the executive order that lies at the heart of the present litigation, instructing the Department of Personnel Administration to implement, beginning on February 1, 2009, and continuing through June 30, 2010, a mandatory two-day-a-month unpaid furlough of most state workers employed in the executive branch.

Shortly after the Governor’s issuance of this executive order, a number of employee organizations—the recognized, exclusive bargaining representatives of a majority of the workers employed by the State of California—filed three separate, but similar, lawsuits, contending that the Governor lacked authority to implement unilaterally an involuntary furlough of represented state employees that reduced such employees’ hours and earnings by approximately 10 percent.

The trial court, acting on an expedited basis, treated the three cases as related, heard argument in the cases together, and thereafter issued a single ruling rejecting the broad attacks made by the employee organizations on the executive order and concluding that the Governor possessed the authority to impose the furlough in response to the fiscal emergency facing the state. The employee organizations (hereafter sometimes referred to as plaintiffs) appealed from the trial court’s ruling.

After briefing in the Court of Appeal was completed and the three cases were consolidated for purposes of oral argument and decision, but before the Court of Appeal set the matter for oral argument or issued a decision, we exercised our authority pursuant to

article VI,

section 12, subdivision (

a) of the California Constitution to transfer the consolidated matter to this court for oral argument and decision. For the reasons explained below, we conclude that, under existing constitutional provisions and statutes, the Governor on December 19, 2008, possessed authority to institute a mandatory furlough of represented state employees, reducing the earnings of such employees, only if specifically granted such unilateral authority in an applicable memorandum of understanding entered into between the state and the employee organization representing the affected employees.

Although there is considerable doubt whether the applicable memoranda of understanding granted the Governor such authority, we further conclude that even if the Governor lacked authority to institute the challenged furlough plan unilaterally, plaintiffs’ challenge to the furlough plan now before us must be rejected.

In mid-February 2009—shortly after the furlough program went into effect—the Legislature enacted, and the Governor signed, legislation that revised the Budget Act of 2008 (2008 Budget Act) by, among other means, reducing the appropriations for employee compensation contained in the original 2008 Budget Act by an amount that reflected the savings the Governor sought to obtain through the two-day-a-month furlough program.

The February 2009 legislation further provided that the specified reduction in the appropriations for employee compensation could be achieved either through the collective bargaining process or through “existing administration authority.” That phrase, in the context in which the revised budget act was adopted and in light of the provision’s legislative history, reasonably included the furlough program that was then in existence and that had been authorized by the current gubernatorial administration.

In particular, the bill analyses considered by the Legislature made specific reference to furlough-related reductions of employee compensation costs. Under these circumstances, we conclude that the Legislature’s 2009 enactment of the revisions to the 2008 Budget Act operated to ratify the use of the two-day-a-month furlough program as a permissible means of achieving the reduction of state employee compensation mandated by the act. Accordingly, we conclude that the 2009 budget legislation validated the Governor’s furlough program here at issue, and reject plaintiffs’ challenge to that program.

I The California Constitution provides that “[t]he Legislature shall pass the budget bill by midnight on June 15 of each year” (Cal. Const., art. IV, § 12, subd. (c)(3)), but, as we noted in White v.

Davis (2003) 30 Cal.4th 528, 533 [133 Cal.Rptr.2d 648, 68 P.3d 74], “in recent years the timely adoption of the budget bill in California has proven to be the exception rather than the rule.” Enactment of the initial 2008 Budget Act was an unusually difficult and protracted task and, instead of being passed by June 15, 2008, the budget bill that year was not enacted by the Legislature and signed into law by the Governor until September 23, 2008.

Although the national and state economies already were in dire straits when the 2008 Budget Act finally was enacted, shortly thereafter the economy further deteriorated dramatically in light of the financial credit crisis and the resulting stock market collapse in October 2008 and a sharp decline in real estate values and consumer spending.

In early November 2008, the Department of Finance reported that the state faced a revenue shortfall of $11.2 billion for the 2008-2009 fiscal year and a much higher budget deficit by the end of the 2009-2010 fiscal year, and further stated that “[i]f no action is taken to reduce spending, increase revenues, or a combination of both, the state will run out of cash in February and be unable to meet all of its obligations for the rest of the year.” (Dept, of Finance, Rep., Governor’s Budget, Special Session 2008-09, p. 1, <http://www.dof.ca.gov/budget/ historical/2009-10/documents/special_session_ 08-09_web.pdf> [as of Oct. 4, 2010].) On November 6, 2008, the Governor published a letter addressed to all state employees, announcing that in order to cope with the state’s worsening fiscal situation he would propose, among other spending reductions, a number of cuts related to state employees, including a one-day-a-month furlough of state employees that would result “in a pay cut of about 5 percent” but that would not “affect retirement and other benefits for which you are eligible.” The letter declared that “[a]ll the actions we’re proposing must first be approved by the Legislature.” On that same day (Nov. 6, 2008), the Governor called the Legislature into special session and submitted a package of proposed legislative measures to address the state’s fiscal problems.

The package included a proposal to add two new sections to the Government Code (proposed Gov. Code, §§ 19826.4, 19826.45), provisions that would require the Department of Finance and the Department of Personnel Administration (DPA) to implement a program for a one-day-a-month furlough of state employees for the remainder of the 2008-2009 fiscal year and for the entire 2009-2010 fiscal year. The Legislature, which was in the final days of the 2007-2008 regular legislative session, did not act on the Governor’s proposed budget legislation, and the legislative session ended on November 30, 2008. (Cal. Const., art.

IV, § 3, subd. (a).) On December 1, 2008, after the newly elected legislators took office and the 2009-2010 regular legislative session began (Cal. Const., art. IV, §§ 2, subd. (a), 3, subd. (a)), the Governor issued a proclamation declaring a fiscal emergency pursuant to the provisions of

article IV,

section 10, subdivision (

f) of the California Constitution, and calling the Legislature into special session as provided by that constitutional provision. The Governor resubmitted to the Legislature the same comprehensive budget legislation that he had proposed the previous month, including the proposal to add specific provisions to the Government Code directing the implementation of a one-day-a-month furlough of state employees through the end of the 2009-2010 fiscal year. (See Assem. Budget Com.,

Summary of Governor’s Proposed Dec. 2008-09 Budget Adjustments (Dec. 2, 2008) p. 14.) The Legislature did not enact the Governor’s proposed budget package but instead, on December 18, 2008, passed an alternative comprehensive budget package (comprising 15 separate budget-related bills). The Governor expressed immediate disapproval of the Legislature’s action and subsequently (on Jan. 6, 2009) vetoed all 15 bills. On December 19, 2008, the Governor issued the executive order here at issue. (Governor’s Exec. Order No.

S-16-08 (Dec. 19, 2008).) Citing the worsening financial crisis and the real possibility that the state would lack sufficient cash to meet its payroll and other obligations beginning in February 2009, and asserting that “in the December 1, 2008 fiscal emergency extraordinary session, the Legislature failed to effectively address the unprecedented statewide fiscal crisis,” the executive order directed the DPA to adopt a plan—to be effective February 1, 2009, through June 30, 2010—“to implement a furlough of represented state employees and supervisors for two days per month, regardless of funding source” (italics added) and also “to implement an equivalent furlough or salary reduction for all state managers, including exempt state employees, regardless of funding source.” (Ibid.) The order indicated that the furlough plan would include a limited exemption process.

After the Governor issued his order, the DPA notified the certified bargaining representatives of represented state employees of the Governor’s order and offered to meet and confer with them over the impact of the furloughs. Thereafter the DPA met with various bargaining units. Shortly after the executive order in question was issued, a number of employee organizations—recognized bargaining representatives for the majority of represented state employees—filed three separate actions, challenging the validity of the Governor’s executive order on a variety of grounds.

On December 22, 2008, Professional Engineers in California Government and California Association of Professional Scientists filed a petition for writ of mandate in the Sacramento Superior Court (No. 34-2008-80000126), naming the Governor, the DPA, and the State Controller as defendants and seeking an order to restrain implementation of the executive order.

On January 5, 2009, California Attorneys, Administrative Law Judges and Hearing Officers in State Employment (CASE) filed a similar petition in Sacramento Superior Court (No. 34-2009-80000134), and on January 7, 2009, Service Employees International Union Local 1000 (SEIU) also filed a similar petition in Sacramento Superior Court (No. 34-2009-80000135).

On January 9, 2009, the Director of the DPA sent a memo to all state departments indicating that the unpaid furlough program would be implemented by a general closing of state government operations on the first and third Friday of each month, beginning on February 6, 2009.

For state operations that cannot close (such as prisons and hospitals), the memo indicated that agency heads could request approval from the DPA to use a “self-directed” furlough program for specific positions, under which employees either would choose two furlough days per month with the approval of their supervisors, or accrue two furlough days to be taken when feasible within two years following the conclusion of the furlough program.

The memo further stated: “Salaries will be adjusted to reflect the unpaid furlough days, but benefits will remain the same (i.e., the furlough will not affect payouts for unused leave, service credit, health and retirement benefits, etc.).” (DPA, State Employee Furlough per Governor’s Executive Order S-16-08 (Jan. 9, 2009) <http://www.dpa.ca.gov/personnel-policies/furloughs/ main.htm> [as of Oct. 4, 2010] (January 9, 2009 DPA Furlough Memo).) Meanwhile, in the three pending Sacramento Superior Court actions, all parties stipulated to a briefing and hearing

schedule that would permit the designated judge (Hon. Patrick Marlette) to hear the three cases together prior to February 1, 2009, the date on which the furlough program was scheduled to begin. On January 29, 2009, the trial court conducted a single hearing in all three cases, and on January 30 the court issued a single ruling denying all three petitions on the merits and ordering the State Controller (Controller) to comply with the executive order in the course of issuing pay warrants to the affected state employees. Thereafter, on February 11, 2009, the court entered a formal judgment denying the petitions.

Plaintiffs and the Controller filed timely appeals in the Court of Appeal in all three cases. On February 2, 2009, SEIU filed a petition for a writ of supersedeas in the Court of Appeal, requesting that the appellate court stay implementation of the furlough program pending appeal. The appellate court denied the petition for supersedeas on February 27, 2009, and the Controller implemented the furlough order during the pendency of this appeal insofar as the order applied to the employees represented by plaintiff employee organizations.

Meanwhile, the Controller had sent a letter to the trial court on February 3, 2009, requesting that it clarify whether its January 30 ruling applied to persons employed in offices headed by independently elected constitutional officers (such as the Attorney General and the Controller).

In response, the trial court, on February 4, 2009, issued an order stating that no issue regarding application of the executive order to employees of independently elected constitutional officers had been raised or litigated in the writ matters on which the court had ruled, and indicating that its ruling expressed no view regarding that issue. The Controller subsequently informed the Governor that, in issuing salary warrants, he (the Controller) would not implement furloughs for the employees of the state’s independently elected constitutional officers without a court order directing him to do so.

On February 9, 2009, the Governor filed a petition for a writ of mandate in Sacramento Superior Court against the Controller, requesting an order compelling the Controller to implement furloughs for the independently elected constitutional officers. (Schwarzenegger v. Chiang (No. 34-2009-80000158).) On March 12, 2009, the trial court ruled that the Controller must implement the Governor’s furlough order with respect to employees who work for independently elected constitutional officers.

The Controller appealed from that ruling, and the trial court’s order in that matter has been stayed by the appeal, which is currently pending in the Court of Appeal, Third Appellate District (C061648). On February 19, 2009, after extended discussion and negotiation, the Legislature passed, and on February 20, 2009, the Governor signed, Senate Bill No. 2 (2009-2010 3d Ex. Sess.) (Senate Bill 3X 2), which revised the 2008 Budget Act in response to the fiscal emergency. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 2 (sometimes hereafter revised 2008 Budget Act).)

Section 36 of Senate Bill 3X 2 added

section 3.90 to the original 2008 Budget Act (Stats. 2008, ch. 268).

Section 3.90, subdivision (

a) provides in part: “Notwithstanding any other provision of this act, each item of appropriation in this act. . . shall be reduced, as appropriate, to reflect a reduction in employee compensation achieved through the collective bargaining process for represented employees or through existing administration authority and a proportionate reduction for nonrepresented employees (utilizing existing authority of the administration to adjust compensation for nonrepresented employees) in the total amounts of $385,762,000 from General Fund items and $285,196,000 from items relating to other funds.” As discussed below (post, at pp. 1043-1048), the amount of the reduction in appropriations for employee compensation set forth in

section 3.90 reflected, among other proposed reductions, the reductions that the Governor proposed to achieve through the two-day-a-month furlough of state employees.

Section 3.90, subdivision (

a) also indicated the Legislature’s intent to make similar reductions in employee compensation for the 2009-2010 fiscal year. On the same date (Feb. 19, 2009) the Legislature enacted legislation amending the 2008 Budget Act (revising the budget for the 2008-2009 fiscal year), it also passed the initial version of the Budget Act of 2009 (Sen. Bill No. 1 (2009-2010 3d Ex. Sess.) (Senate Bill 3X 1), enacted as Stats. 2009, 3d Ex Sess. 2009-2010, ch. 1), which set forth the budget for the 2009-2010 fiscal year (2009 Budget Act).

The 2009 Budget Act included the reduced appropriations for state employee compensation proposed by the Governor, which reflected the savings generated by the two-day-a-month furlough plan, and included language in

section 3.90 of that act identical to language in the revised 2008 Budget Act, indicating that the reductions in employee compensation are to be achieved “through the collective bargaining process for represented employees or through existing administration authority and a proportionate reduction for nonrepresented employees (utilizing existing authority of the administration to adjust compensation for nonrepresented employees)____” (Sen.

Bill 3X 1, § 3.90, subd. (a), p. 633.) The revised 2008 Budget Act and the initial 2009 Budget Act were signed into law on February 20, 2009, as part of a comprehensive budget package that included a number of proposed constitutional amendments that were to be put before the voters at a special election to be held shortly thereafter. At that special election, held on May 19, 2009, the voters rejected most of the ballot propositions that were part of the budget package. After the May 19, 2009, election, the state’s fiscal crisis continued to worsen.

On July 1, 2009, the Governor issued another executive order, instituting a third unpaid furlough day each month for state employees, to run from July 1, 2009, to June 30, 2010. (Governor’s Exec. Order No. S-13-09 (July 1, 2009).) On July 24, 2009, the Legislature passed Assembly Bill No. 4X 1 (2009-2010 4th Ex. Sess.) (Assembly Bill 4X 1), which revised the 2009 Budget Act. (Stats. 2009, 4th Ex.

Sess. 2009-2010, eh. 1.) As enacted by the Legislature, Assembly Bill 4X 1 further reduced the appropriations for employee compensation and retained the same language regarding the manner in which the reductions were to be achieved as appeared in the revised 2008 Budget Act and the initial 2009 Budget Act. (Assem. Bill 4X 1, § 552 [amending § 3.90 of the 2009 Budget Act].) The Governor signed this bill into law on July 28, 2009. The present litigation does not involve the validity of the third furlough day that was in effect from July 1, 2009, to June 30, 2010.

The two-day-a-month furlough plan that began on February 1, 2009, and the subsequent three-day-a-month furlough plan that began on July 1, 2009, both terminated on June 30, 2010.

On July 28, 2010—a budget act for the 2010-2011 fiscal year not having been timely enacted and the state’s serious budget problems continuing unabated—the Governor issued a new executive order, directing the DPA to implement a three-day-a-month furlough plan to begin on August 1, 2010, and to continue until “a 2010-11 fiscal year budget is in place and the Director of the Department of Finance determines that there is sufficient cash to allow the State to meet its obligations to pay for critical and essential services to protect public health and safety and to meet its payment obligations protected by the California Constitution and federal law.” (Governor’s Exec.

Order No. S-12-10 (July 28, 2010) p. 2.) Prior to the first furlough day scheduled under the newly promulgated furlough plan, numerous employee organizations filed lawsuits in the Alameda Superior Court challenging the validity of the Governor’s July 28, 2010, order. (Professional Engineers in California Government v. Schwarzenegger (No.

RG1049800) and consolidated cases.) On August 9, 2010, a judge of the Alameda Superior Court issued a temporary restraining order enjoining the Governor and other state officials from implementing the new executive order pending a hearing on the employee organizations’ request for a preliminary injunction. The Governor immediately appealed to the Court of Appeal from the trial court’s ruling issuing the temporary restraining order, and sought a writ of supersedeas to stay the trial court’s order pending resolution of the appeal.

After the Court of Appeal denied the stay, the Governor sought immediate review in this court. On August 18, 2010, we granted the petition for review in that matter, deferred further action pending our resolution of the current proceeding, and stayed further superior' court proceedings in that matter as well as the temporary restraining order that had been issued on August 9, 2010. The current proceeding does not involve the validity of the Governor’s July 28, 2010, executive order. “February 2009 Budget Solutions.

In response, in February 2009, the Legislature and the Governor agreed on a budget package to bring the 2008-09 and 2009-10 budgets back into balance. With these changes, tire state expects in 2009-10 to bring in about $98 billion in revenues and spend about $92 billion. (The difference of about $6 billion between revenues and spending is being used to cover a year-end deficit in 2008-09 and build up a reserve account.) This package included more than $40 billion in solutions. “Spending Reductions. The package included about $15 billion in spending-related reductions.

The largest reductions related to kindergarten through twelfth grade schools, which experienced both reductions to core program funding and the deferral of payments to future years. Reductions also included furloughing state workers, eliminating inflationary adjustments for many programs, and making other reductions in services. “Tax increases. The package included about $12.5 billion in tax increases. Most of these higher taxes are the result of increased rates for the sales and use tax, vehicle license fee, and personal income tax. “Federal Funds.

The package also assumed receipt of more than $8 billion in federal funds from the recent economic stimulus law to help balance the budget. “Borrowing. Finally, the package counted on $5 billion from the borrowing of future lottery profits. “Budget-Related Propositions. As part of the February package, six propositions were placed on this ballot related to the budget. . . .” (May 2009 Voter Guide, supra, at pp. 8-9, italics added.) II We now describe in somewhat greater detail the proceedings below.

In each of the three Sacramento Superior Court cases, the petition filed by the employee organization sought (1) the issuance of a writ of mandate directing the Controller and the Governor not to implement the mandatory two-day-a-month unpaid furlough instituted by the Governor’s December 19, 2008, executive order, and (2) a declaratory judgment stating that the executive order was invalid.

The principal contention advanced in all three cases is that the Governor lacks authority to impose a mandatory unpaid furlough unilaterally—reducing the wages of the employees represented by the plaintiff employee organizations—and that such a measure may be adopted only by the Legislature. Each petition asked the trial court to act expeditiously, before February 1, 2009, when the furloughs were scheduled to go into effect.

The Governor and the DPA initially filed a demurrer to the petitions, arguing that the actions first should have been brought before the Public Employment Relations Board (PERB), and thereafter they filed an opposition to the petitions on the merits, relying (at that juncture) primarily on the contention that Government Code

section 3516.5 provided the Governor with the authority to implement the furlough program in a fiscal emergency. In contrast to the Governor and the DPA, the Controller, who also had been named as a defendant in each of the petitions, filed an answer concurring in plaintiffs’ challenge to the Governor’s executive order. Like plaintiffs, the Controller maintained that the Governor lacks authority to reduce state employees’ pay unilaterally through a mandatory furlough, arguing that only the Legislature possesses such authority.

The trial court considered the matter on an expedited basis and, after conducting a single hearing, issued a ruling applicable to all three cases. In its ruling, the court first overruled the demurrer to the petitions, concluding that the superior court properly could exercise jurisdiction over the actions. Turning to the merits, the court then rejected plaintiffs’ claim that the Governor and the DPA lacked authority to institute the challenged furlough plan. In reaching its conclusion on the merits, the trial court relied primarily upon its

interpretation of sections 19851 (a provision concerning workweek hours) and 19849 (a provision granting the DPA general authority to issue regulations “governing hours of work and overtime compensation”), as well as its determination that the applicable memoranda of understanding (MOU’

s) between the employee organizations in question and the state authorized the Governor and the DPA to take such action in a fiscal emergency. As part of its ruling, the trial court explicitly ordered the Controller to comply with the Governor’s furlough order. Plaintiffs and the Controller filed timely appeals in the Court of Appeal. After the regular rounds of briefing were completed, that court issued an order consolidating the three cases for oral argument and decision, and shortly thereafter directed the parties to file supplemental briefs addressing a series of detailed questions.

After the rounds of supplemental briefing were completed, but before the Court of Appeal was prepared to set the consolidated matter for oral argument or issue a decision, we transferred the matter to this court (Cal. Const., art. VI, § 12, subd. (a)), requested further supplemental briefing on two additional issues, and held oral argument on September 8, 2010. Ill We begin with a brief overview of the general provisions of the California Constitution and the California statutes relating to state finances and the state budget.

Under the California Constitution, the Legislature and the Governor share responsibility for the state’s finances and its budgeting process. The Governor is assigned the responsibility of submitting to the Legislature each year in early January a proposed balanced budget for the upcoming fiscal year (which runs from July 1 to June 30). (See Cal. Const., art.

IV, § 12, subd. (a) [“[w]ithin the first 10 days of each calendar year . . .”].) The Legislature considers the proposed budget, engages in negotiations among its members and with the Governor, and is obligated to pass a budget bill for the upcoming fiscal year “by midnight on June 15 of each year.” (Cal. Const., art. IV, § 12, subd. (c)(3).) The Constitution further provides that the Legislature may not send to the Governor for consideration, and the Governor may not sign into law, a budget bill that does not provide for a balanced budget. (Cal. Const., art.

IV, § 12, subd. (f).) After the Legislature acts, the Governor is authorized to reduce or eliminate one or more specific items of appropriation through exercise of the “line-item veto,” and those gubernatorial reductions take effect unless the Legislature by a two-thirds vote overrides the Governor’s veto regarding a specific item. (Cal. Const., art. IV, § 10, subd. (e).) The Constitution also specifies that the Controller, in approving payments from the state treasury, is authorized to make only those expenditures for which there is an available appropriation. (Cal. Const., art.

XVI, § 7.) The Constitution further provides that “[t]he Legislature may control the submission, approval, and enforcement of budgets and the filing of claims for all state agencies.” (Cal. Const., art. IV, § 12, subd. (e).) The Legislature has adopted statutes authorizing the Department of Finance to exercise general supervisory authority over the state’s financial and business policies, including obtaining the necessary information to monitor expenditures and revenues during the fiscal year. (§§ 13070, 13320, 13337.) In addition,

section 13337.5 provides that “[t]he annual Budget Act shall not provide for projected expenditures in excess of projected revenues” and further that “it is the intention of the Legislature that in the event, after enactment of the Budget Act, revised estimates of expected revenues or expenditures, or both, show that expenditures will exceed estimated revenues, expenditures should be reduced or revenues increased, or both, to ensure that actual expenditures do not exceed actual revenues for that fiscal year.” Until 2004, however, there was no specific provision establishing a procedure for dealing with a situation in which, in the course of a fiscal year, it became apparent that the expenditures originally anticipated and authorized under the existing budget substantially would exceed the estimated revenues that the state would obtain during the fiscal year.

In the primary election held on March 2, 2004, a ballot measure was put before the voters that directly addressed the type of midyear fiscal emergency that led to the executive order challenged in the present case. That measure, appearing on the ballot as Proposition 58, proposed adding a new provision—article IV,

section 10, subdivision (f) (hereafter

article IV,

section 10(f))—to the California Constitution. The voters approved the measure at that election, adding the provision to our state Constitution. Under

article IV,

section 10(f), if the Governor determines in the midst of a fiscal year that there is likely to be a substantial unanticipated budget deficit for that fiscal year, he or she may declare a fiscal emergency, call a special legislative session to deal with the emergency, and submit proposed legislation to address the problem. The provision also specifies that if the Legislature fails to enact legislation within 45 days to address the fiscal emergency, the Legislature may not act on any other bill and cannot recess until it passes such legislation. “

(1) If, following the enactment of the budget bill for the 2004-05 fiscal year or any subsequent fiscal year, the Governor determines that, for that fiscal year, General Fund revenues will decline substantially below the estimate of General Fund revenues upon which the budget bill for that fiscal year, as enacted, was based, or General Fund expenditures will increase substantially above that estimate of General Fund revenues, or both, the Governor may issue a proclamation declaring a fiscal emergency and shall thereupon cause the Legislature to assemble in special session for this purpose.

The proclamation shall identify the nature of the fiscal emergency and shall be submitted by the Governor to the Legislature, accompanied by proposed legislation to address the fiscal emergency. In the present case, on December 1, 2008, the Governor invoked the provisions of

article IV,

section 10(f), called a special session, and submitted proposed legislation. The Legislature did not enact the Governor’s proposed legislation but instead passed an alternative budget package on December 18, 2008—legislation that the Governor ultimately vetoed on January 6, 2009.

On December 19, 2008, citing a worsening fiscal situation and maintaining that during the fiscal emergency special session “the Legislature failed to effectively address the unprecedented statewide fiscal crisis,” the Governor issued the executive order at issue in this case, directing implementation of a two-day-a-month unpaid furlough of state workers employed in the executive branch, to begin on February 1, 2009, and run through June 30, 2010. Thereafter, on February 19, 2009, the Legislature adopted, and on February 20, 2009, the Governor signed, a revised 2008 Budget Act (Stats. 2009, 3d Ex.

Sess. 2009-2010, ch. 2) and an initial 2009 Budget Act (id., ch. 1), which reduced the appropriations for state employee compensation to a level proposed by the Governor—a level that included reductions attributable to the furlough program. In light of this chronology, we believe it is useful to analyze the issues presented in this case by posing two broad questions. First, on December 19, 2008, did the Governor possess authority to impose unilaterally a mandatory two-day-a-month unpaid furlough for state employees by issuing an executive order?

Second, did the Legislature’s enactment in February 2009 of the revised 2008 Budget Act and the initial 2009 Budget Act affect the validity of the Governor’s executive order or the remedy that the employee organizations may be entitled to obtain in the present proceeding? We begin our analysis with the first of these two questions. IV Plaintiffs contend the Governor lacked the authority to impose unilaterally, through his December 19, 2008, executive order, a mandatory unpaid furlough on state workers.

Plaintiffs maintain it was well understood at the time the Governor issued this executive order that such action could be undertaken only by, or with the concurrence of, the Legislature. “

(2) If the Legislature fails to pass and send to the Governor a bill or bills to address the fiscal emergency by the 45th day following the issuance of the proclamation, the Legislature may not act on any other bill, nor may the Legislature adjourn for a joint recess, until that bill or those bills have been passed and sent to the Governor. “

(3) A bill addressing the fiscal emergency declared pursuant to this

section shall contain a statement to that effect.” A Plaintiffs first point to

article IV,

section 10(f), noting that this provision clearly contemplates that, in the event of a midyear fiscal emergency, the Governor can propose remedial measures, but that such proposals will take effect only if adopted by the Legislature and signed into law. Plaintiffs emphasize in this regard that resolution of a serious budget problem invariably implicates a myriad of fundamental policy decisions and tradeoffs, and they maintain that

article IV,

section 10(

f) accurately recognizes that under the traditional separation-of-powers principles embodied in the California Constitution (art. Ill, § 3) it is for the Legislature to fashion an appropriate solution to a fiscal emergency through the passage of legislation—legislation that is then subject to the Governor’s veto authority. It is true that

article IV,

section 10(

f) was proposed and adopted in 2004 in response to a perceived need for a new procedure to deal with midyear fiscal emergencies, and that this provision recognizes that ordinarily the Governor will be unable to solve the problem alone and that a solution to such a fiscal emergency generally will require the Legislature’s enactment of new legislation. The circumstance that

article IV,

section 10(

f) recognizes that the Legislature ordinarily will play a key role in resolving a midyear state budget crisis, however, does not signify that the Governor lacks authority to undertake any unilateral actions to conserve funds and cut state expenditures in response to a fiscal emergency.

No one argues, for example, that, in response to a midyear fiscal emergency, the Governor could not delay discretionary spending on public works projects or could not (at least with regard to those executive employees under his direct control) freeze hiring (leaving unfilled those vacant positions for which funds had been appropriated). In the present case the Governor essentially is arguing that instituting a mandatory unpaid furlough of state employees, similar to not filling vacancies, is one of the measures that he lawfully could institute unilaterally.

B Plaintiffs respond that there is clear and abundant evidence that, prior to the Governor’s issuance of the initial furlough order on December 19, 2008, it was well understood that a mandatory furlough of state employees (encompassing a cut in employee wages) could not be imposed by the Governor unilaterally.

Initially, plaintiffs point out that the Governor himself, in his November 6, 2008, letter to state employees, explicitly recognized the need for legislative concurrence when he first announced his intention to propose a one-day-a-month unpaid furlough of state employees to deal with the state’s fiscal crisis. Moreover, plaintiffs also note that in the comprehensive budget legislation submitted by the Governor to the Legislature on November 6, 2008, he proposed that it adopt new statutory provisions that would direct the Department of Finance and the DPA to implement such a furlough.

Further, plaintiffs observe that when, on December 1, 2008, the Governor formally declared a fiscal emergency pursuant to

article IV,

section 10(

f) and called a special session of the Legislature to address that emergency, he again submitted a comprehensive budget proposal that included the same statutory provisions by which the Legislature would mandate the implementation of the furlough program. Plaintiffs maintain that all of these actions constituted an unambiguous acknowledgement on the part of the Governor that legislative action was required before a furlough could be imposed.

Finally, plaintiffs point out that the present Governor is not the first California governor to recognize that, under existing California law, the Governor lacks the authority unilaterally to reduce state employee earnings even in a fiscal emergency. Plaintiffs note that in the early 1990’s, in response to a similar state fiscal emergency, Governor Wilson had proposed a ballot measure that would have afforded the Governor of California at least some unilateral authority to act in this area—a measure that failed to win the support of a majority of the voters at the November 1992 election.

Of course, neither the position taken by the Governor in his November 6, 2008, letter to state employees, nor his proposal that the Legislature adopt provisions directing the implementation of a furlough, constitutes a legally controlling determination that the Governor lacks authority to impose such a furlough unilaterally. In defending his December 19, 2008, executive order in the present litigation, the Governor, noting the absence of any definitive judicial' ruling, advances a number of grounds to support his claim that he possesses the unilateral authority to impose such a mandatory furlough.

C The Governor initially maintains that his authority to institute unilaterally the challenged furlough program derives from the broad language of

article V,

section 1 of the California Constitution, which provides in full: “The supreme executive power of this State is vested in the Governor. The Governor shall see that the law is faithfully executed.” The Governor contends the power to furlough state employees in the face of a fiscal emergency is an inherent part of his constitutional authority as the state’s chief executive.

In advancing this argument, however, the Governor fails to cite any judicial decision or other supporting authority holding or suggesting that the power under the California Constitution to establish or revise the terms and conditions of state employment, even in a fiscal emergency, resides in the Governor (or any other executive officer or entity) rather than in the Legislature. To the contrary, the following is well established:

(1) Under the California Constitution it is the Legislature, rather than the Governor, that generally possesses the ultimate authority to establish or revise the terms and conditions of state employment through legislative enactments, and (2) any authority that the Governor or an executive branch entity (such as the DPA) is entitled to exercise in this area emanates from the Legislature’s delegation of a portion of its legislative authority to such executive officials or entities through statutory enactments. (See, e.g., Pacific Legal Foundation v.

Brown (1981) 29 Cal.3d 168, 181-196 [172 Cal.Rptr. 487, 624 P.2d 1215]; State Trial Attorneys’ Assn. v. State of California (1976) 63 Cal.App.3d 298, 303 [133 Cal.Rptr. 712]; accord, Marine Forests Society v. California Coastal Com. (2005) 36 Cal.4th 1, 31-42 [30 Cal.Rptr.3d 30, 113 P.3d 1062] [under the Cal. Const., the Legislature, not the Governor, possesses general authority to appoint executive officers].) As this court explained in Pacific Legal Foundation v.

Brown, supra, 29 Cal.3d 168, 188: “[T]he . . . authority to set salaries [of public employees] has traditionally been viewed as a legislative function, with ultimate authority residing in the legislative body.” Furthermore, as we discuss in the next part of this opinion, it is similarly well established that the foregoing general principle applies equally in a fiscal emergency. Accordingly, the Governor’s authority to issue the December 19, 2008, furlough order cannot be supported simply by reference to the broad language of

article V,

section 1 of the Constitution. D The Governor alternatively contends that his authority to institute the state employee furlough program arises from a number of statutory provisions, maintaining in this regard that there is no judicial decision in point holding the Governor is not statutorily authorized to impose such a furlough program, particularly in the context of a fiscal emergency.

Although there is no California case precisely in point, two Court of Appeal decisions that arose out of a state fiscal emergency comparable to the circumstances that engendered the executive order in the present case—Department of Personnel Administration v. Superior Court (Greene) (1992) 5 Cal.App.4th 155 [6 Cal.Rptr.2d 714] (Greene) and Tirapelle v. Davis (1993) 20 Cal.App.4th 1317 [26 Cal.Rptr.2d 666], (Tirapelle)—provide considerable guidance regarding the issues now before us.

As we shall see, the decision in Greene dealt with proposed changes to the terms and conditions of employment of represented employees (that is, those state employees who are covered by the Ralph C. Dills Act (§§ 3512-3524 (hereafter the Dills Act)) and who have chosen an exclusive representative to appear on their behalf in negotiations with the state), whereas the decision in Tirapelle concerned proposed changes affecting nonrepresented employees (that is, all other state employees).

Because of the relevance of these two decisions, we believe it is useful to review them in some detail before addressing the specific statutory provisions relied upon by the Governor. 1 The litigation in Greene, 5 Cal.App.4th 155, arose out of what the Court of Appeal described as “an unprecedented budgetary crisis at the outset of fiscal year 1991-1992, with expenditures projected to exceed revenues by more than $14 billion.” (Id. at p. 163.) In response to this fiscal situation, the Budget Act of 1991 (1991 Budget Act), as enacted by the Legislature and signed by the Governor, included a provision that imposed a reduction of $351 minion in the appropriations for employee compensation.

The provision, however, did not specify how that reduction in employee compensation was to be achieved. After the 1991 Budget Act was enacted, the DPA (in its role as the bargaining representative for the state) and various employee organizations representing state employees met and conferred in an attempt to reach an agreement on salaries and other terms and conditions of employment.

At the time of those negotiations, the prior MOU’s—that is, the public sector equivalent of collective bargaining agreements—between these employee organizations and the state had expired, but the parties continued to negotiate in good faith for several months in the hope of reaching agreement on new MOU’s.

By early November 1991, however, the parties had reached an impasse in negotiations, and on November 5, 1991, the DPA notified the employee organizations that, although the state would continue to maintain the status quo as to many of the terms and conditions of employment set forth in the expired MOU’s, with regard to two items—salaries and health benefits—the state, beginning on November 12, 1991, unilaterally would implement the terms set forth in its final offer, cutting the current salaries of the state employees represented by the employee organizations by 5 percent and reducing the employer’s contribution rates for health care premiums for such employees to the amounts specified in the state’s final offer.

Two employee organizations immediately challenged in superior court the DPA’s actions, and the trial court, after a hearing, concluded that under the governing statutory provisions the DPA lacked authority unilaterally to reduce either wages or health benefits of represented state employees. With regard to wages, the trial court held that

section 19826, subdivision (

b) expressly precluded the DPA from unilaterally reducing the wages of represented employees. With regard to health benefits, the trial court concluded that, in the absence of an applicable MOU, the regular formula for state contributions to health care premiums set forth in former

section 22825.1 applied and precluded the state from decreasing its contribution rates. On appeal, the Court of Appeal agreed with the trial court’s determination that the DPA lacked authority unilaterally to reduce the wages of represented employees, but disagreed with the trial court’s conclusion with respect to health benefits.

In analyzing the validity of the DPA’s action regarding wages, the appellate court in Greene, supra, 5 Cal.App.4th 155, initially explained that, in contrast to most other collective bargaining statutes, the Dills Act is a “ ‘supersession statute’ ” (Greene, at p. 174), meaning that when a provision of an MOU conflicts with an otherwise applicable statutory provision governing the terms and conditions of employment, the provision of the MOU generally “supersedes” or prevails over the terms of the otherwise applicable statute, without any need for further legislative approval of the conflicting MOU provision. (§ 3517.6.) Because at that time the Dills Act contained no provision specifically addressing the question of what effect the expiration of an MOU would have on the terms and conditions set forth in the MOU, the court in Greene concluded that—once an MOU had expired—the terms and conditions of that MOU were no longer in force, and consequently that “[a]ny of the numerous statutory provisions specified in

section 3517.6 which were superseded by conflicting terms in a subsisting MOU are no longer superseded once the MOU expires and those provisions then go into effect.” (Greene, supra, at p. 176.) Because in that case the MOU’s of the affected employee organizations had expired, the Court of Appeal in Greene, supra, 5 Cal.App.4th 155, looked to the terms of the general statute concerning the DPA’s authority with respect to the salaries of state employees—section 19826—to determine whether the DPA had authority, under the circumstances presented, unilaterally to reduce the salaries of the employees in question. The court in Greene, supra, 5 Cal.App.4th 155, pointed out that

section 19826 draws a clear distinction between the DPA’s authority with regard to represented employees as contrasted with its authority with regard to nonrepresented employees. With regard to nonrepresented employees, the DPA, under

section 19826, subdivision (

a) is authorized to “establish and adjust salary ranges for each class of position in the state civil service,” but with regard to represented employees,

section 19826, subdivision (

b) provides that “[notwithstanding any other provision of law, the department shall not establish, adjust, or recommend a salary range for any employees in an appropriate unit where an employee organization has been chosen as the exclusive representative pursuant to

Section 3520.5.” The court in Greene concluded that “[t]he plain language of

section 19826 supports the respondent court’s conclusion that DPA may not unilaterally decrease salaries for represented employees.” (Greene, supra, 5 Cal.App.4th at p. 174.) Further, after reviewing the structure and legislative history of the Dills Act, the court explained: “Given that this statute denies DPA the power unilaterally to set salaries, the Legislature must have intended that unresolved wage disputes return to the Legislature for final determination.” (Greene, at p. 182.) The DPA argued in that case that it was unreasonable to interpret the relevant statutes to preclude the DPA from acting unilaterally with regard to wages when a reduced budget appropriation (triggered by a large projected budget shortfall) created a need to reduce wages and when the parties had bargained to impasse over the wage issue.

The court in Greene explained, however: “[G]iven that DPA’s and the unions’ authority to set salaries derives from a legislative delegation, it is not at all absurd that the Legislature would reserve its authority to act in the event of a stubborn wage dispute. . . . Considering also the highly political nature of this dispute, it makes further sense that it will be ultimately resolved in the political branch.

Our conclusion is consistent with the Dills Act, which represents only a limited delegation of the Legislature’s salary-setting function, and includes numerous provisions suggesting the Legislature intended to retain final determination of state salaries.” (Greene, supra, 5 Cal.App.4th at p. 182.) Finally, rejecting the DPA’s suggestion that the conclusion reached by the Court of Appeal “shuts out the Governor (i.e., DPA) from the process of establishing state salaries” (ibid.), the court in Greene pointed out that “[t]he Governor retains his veto power over any subsequent wage legislation.” (Ibid.) At the same time the Court of Appeal upheld the trial court’s determination that the DPA lacked authority, even at impasse, to reduce unilaterally the wages of represented employees, the appellate court reached a contrary conclusion regarding the validity of the DPA’s proposed reductions in employer contributions to health care premiums.

As noted, the trial court had concluded that, in the absence of an applicable MOU, the state employer’s contributions to health care premiums were governed by former

section 22825.1, the general statute prescribing the amount of employer contributions in the absence of a conflicting MOU. The Court of Appeal, however, concluded that

section 22825.15—a narrower, more specific statutory provision enacted “during the height of the 1991-1992 budget crisis” and sent to the Governor as part of an urgency measure just days before the Legislature sent him the 1991 Budget Act (Greene, supra, 5 Cal.App.4th at p. 190)—was intended to apply in these circumstances, and that under this statute the contribution rates for health care premiums regarding represented employees were to be determined through “ ‘the collective bargaining process.’ ” (Ibid.) Furthermore, the Court of Appeal found that, in light of the specific context in which

section 22825.15 was enacted, the term “collective bargaining process” as used in that statute properly should be interpreted to permit the DPA, after the parties have bargained to impasse, to implement its last, best, and final offer. (Greene, at p. 191 [“the Legislature intended that the issue of health premium contribution rates would be resolved by DPA, through negotiations, if possible, but failing that, through unilateral action”].) In rejecting the trial court’s conclusion that the two potentially applicable statutes should be harmonized by interpreting the provisions of former

section 22825.15 to permit the parties to negotiate contribution rates but, failing agreement, to require the state to comply with the ordinarily applicable contribution rates set forth in

section 22825.1, the Court of Appeal observed that

section 22825.15 “contains undebatable evidence the Legislature intended it to supersede the provisions of

section 22825.1.” (Greene, supra, 5 Cal.App.4th at p. 192.) Moreover, the Court of Appeal explained that in view of the context in which

section 22825.15 was adopted, the result produced by the trial court’s reasoning could not have been intended. The court in Greene stated in this regard: “Given that

section 22825.15 was enacted as urgency legislation to address the $14 billion budget shortfall, it is inconceivable the Legislature intended to have the parties engage in collective bargaining only to have the most favorable [health care premium contribution] formula [from the employees’ perspective] apply in the absence of an agreement.” (Greene, at p. 192.) Accordingly, the Court of Appeal in Greene, supra, 5 Cal.App.4th 155, reversed the judgment rendered by the trial court insofar as it restrained the DPA from changing the state’s contribution to the health care premiums of represented employees, but affirmed the judgment insofar as it restrained the DPA from unilaterally implementing the proposed 5 percent pay cut for represented employees. 2 The Court of Appeal’s decision in Tirapelle, supra, 20 Cal.App.4th 1317, like its decision in Greene, supra, 5 Cal.App.4th 155, arose in the wake of the state’s 1991 fiscal emergency and the enactment of the provision in the 1991 Budget Act that reduced the appropriations for state employee compensation by a specified amount but did not direct how that reduction should be achieved. (See, ante, at p. 1017, fn. 17.) Unlike Greene, however, Tirapelle involved the validity of a 5 percent salary reduction that the DPA proposed to apply to nonrepresented state employees—that is, state employees not covered by the collective bargaining provisions of the Dills Act.

Thus the validity of the DPA’s action did not call for

interpretation or application of the provisions of the Dills Act, but rather turned on the proper

interpretation and application of the DPA’s authority with regard to nonrepresented employees. The legal proceeding in Tirapelle, supra, 20 Cal.App.4th 1317, resulted from a conflict between the DPA and the Controller. At the outset of the 1991-1992 fiscal year, the DPA announced that a 5 percent salary reduction for certain nonrepresented state employees would take effect immediately.

The Controller initially implemented those reductions, but in September 1991 announced he would cease implementing them and would repay the affected employees the sums that previously had been withheld, based upon his determination that the DPA lacked authority to impose the salary reductions. The DPA responded by filing the underlying action in Tirapelle, seeking a writ of mandate to compel the Controller to implement the salary reductions. A number of employee organizations intervened, supporting the Controller’s action.

After holding a hearing, the trial court granted the relief sought by the DPA, and the Controller and the intervening employee organizations appealed. On appeal, after carefully reviewing the respective roles played by the Department of Finance, the DPA, and the Controller (Tirapelle, supra, 20 Cal.App.4th 1317, 1320-1324, 1327-1335), the Court of Appeal addressed the principal contention advanced by the Controller and the employee organizations: that the DPA, in imposing an across-the-board 5 percent reduction in salaries for nonrepresented employees, had exceeded its authority under

section 19826, subdivision (

a) to establish and adjust the salaries of nonrepresented employees Earlier in its opinion, the court in Tirapelle, supra, 20 Cal.App.4th 1317, explained that because the 1991 Budget Act had reduced the appropriations for state employee compensation without explicitly directing how such reductions should be implemented, the DPA was confronted with a difficult choice. The court observed: “There are limited means by which employee compensation can be reduced so as to stay within employee compensation budget allotments.

The available means fall into the broad categories of reducing the size of the work force, reducing the compensation payable on a per-employee basis, or some combination thereof.” (Tirapelle, at p. 1324.) The court then explained: “The DPA asserts that the employee compensation allotment reductions of the Budget Act of 1991 raised the specter of significant employee layoffs. It therefore determined to attempt to reduce salaries in order to minimize the need for layoffs.

The salary reduction target chosen by the DPA was 5 percent per employee.” (Ibid.) In challenging the validity of the DPA’s action in light of the provisions of

section 19826, subdivision (

a) the Controller asserted, among other contentions, that “the DPA took its salary reduction actions out of a general concern for the state’s fiscal condition and that the state’s fiscal condition is a matter for the Legislature rather than the DPA to resolve.” (Tirapelle, supra, 20 Cal.App.4th at p. 1336.) In responding to this argument, the court in Tirapelle explained: “In 1945, when public employee salaries were determined by the State Personnel Board, former

section 18850, the predecessor to

section 19826, included the state’s financial condition in the list of factors to be considered in setting salaries. [Citation.] That factor was deleted from former

section 18850 in 1949. [Citation.] We may assume for purposes of argument that a general concern over the state’s financial condition is not an appropriate factor for the DPA to consider but such an assumption does not advance the position of the Controller or the interveners. Here, the DPA was concerned with specific legislative reductions of the allotments and appropriations available for employee compensation and that is a matter that the DPA certainly must consider." (Id. at pp. 1336-1337, fn. 25, italics added.) One of the intervener employee organizations in Tirapelle argued alternatively that “the power to establish and adjust salary ranges granted to the DPA by

section 19826, subdivision (a), does not include the authority to adjust salaries within the ranges thus set,” and therefore that the DPA lacked authority to reduce the salaries of those employees whose prior salary would be within the new range established by the DPA. (Tirapelle, supra, 20 Cal.App.4th at p. 1342.) The court in Tirapelle emphatically rejected this contention, noting that although salary levels for state employees have been set by long-standing practice as a range, the DPA traditionally has possessed and exercised authority to establish and adjust salaries within such ranges. (Id. at pp. 1342-1343.) In sum, the Court of Appeal in Tirapelle, supra, 20 Cal.App.4th 1317, concluded that the Controller and interveners had failed to establish a lawful basis for the Controller’s blanket refusal to implement the DPA’s 5 percent salary reductions with regard to exempt and nonrepresented state employees.

Accordingly, the court in Tirapelle affirmed the trial court’s judgment in favor of the DPA. 3 Although the circumstances underlying the decisions in Greene and Tirapelle differ in a number of respects from those present in the case now before us, those decisions nonetheless provide useful analytical guidance for our resolution of the instant dispute.

First, both of these appellate decisions demonstrate that, even in a fiscal emergency, the question whether the Governor or the DPA possesses the authority unilaterally to alter the wages or other terms and conditions of employment of state employees depends upon a close and careful

interpretation of the applicable statutory provisions. Second, the decision in Greene makes clear that, particularly with respect to represented state employees, the Legislature has demonstrated a special interest in retaining (through the budget process or otherwise) ultimate control over the salary and wages of such employees.

Third, the decisions in both Greene and Tirapelle reveal that legislative provisions contained within a budget act (or in bills accompanying or in close proximity to that act) often provide the key to determining how reductions in employee compensation mandated by a budget act must or may be implemented. We shall refer to the Greene and Tirapelle decisions in discussing a number of contentions advanced by the parties. V As noted above, the Governor contends that his executive order imposing a mandatory furlough on state employees is supported by several statutory provisions.

In his initial opposition filed in the trial court, the Governor relied primarily upon

section 3516.5 (a provision of the Dills Act), and less directly upon sections 19851, subdivision (

a) and 19849 (which, respectively, set forth (1) the general state policy with regard to the workweek of state employees, and (2) the authority of the DPA to issue general regulations relating to hours of work and overtime). In upholding the validity of the Governor’s action, the trial court relied primarily upon sections 19851, subdivision (

a) and 19849. Accordingly, we turn first to those provisions and then discuss

section 3516.5. A

Section 19851, subdivision (

a) reads in full: “It is the policy of the state that the workweek of the state employee shall be 40 hours, and the workday of state employees eight hours, except that workweeks and workdays of a different number of hours may be established in order to meet the varying needs of the different state agencies. It is the policy of the state to avoid the necessity for overtime work whenever possible.

This policy does not restrict the extension of regular working-hour schedules on an overtime basis in those activities and agencies where it is necessary to carry on the state business properly during a manpower shortage.” It is somewhat ironic that both the Governor and plaintiffs contend the first sentence of

section 19851, subdivision (

a) supports their diametrically opposed positions in this case. As we explain, we conclude that the statute, properly understood, does not support either party’s position, but instead simply is not relevant to the type of mandatory unpaid furlough program at issue in the present proceeding. The initial sentence of

section 19851, subdivision (

a) establishes a general state policy of a 40-hour workweek and an eight-hour day, but also provides that “workweeks and workdays of a different number of hours may be established in order to meet the varying needs of the different state agencies.” Contrary to the Governor’s argument, in our view the plain language of the provision cannot reasonably be interpreted to authorize the furlough plan instituted by the Governor’s executive order.

The furlough plan at issue does not establish different hours “to meet the varying needs of the different state agencies,” but rather imposes an across-the-board rule that applies to virtually all executive branch agencies, regardless of their varying needs. The trial court suggested in its ruling that the furlough plan in question could be brought within the language of

section 19851, subdivision (

a) on the theory that, in light of the state’s fiscal problems, the furlough met the needs of all state agencies by minimizing the risk they would run out of funds before the end of the fiscal year and as a result be unable to meet their statutorily mandated functions.

The statutory language, however, speaks of “the varying needs of the different state agencies” (ibid., italics added), demonstrating that the statute contemplated that the length of workweeks or workdays could be varied based on the particular functions and needs of individual agencies, and was not intended to encompass a rule or regulation that changed the length of the workweek for all, or virtually all, executive branch agencies.

Moreover, when related statutory provisions and administrative regulations are considered, it is apparent that the furlough program at issue in this case has no effect on the “workweek” as that term is employed in

section 19851. The related statutes and regulations reveal that the principal purpose served by the designation of a normal “workweek” in

section 19851 is to establish the number of hours that an employee may be required to work in a given week before the employee is entitled to receive overtime compensation for additional hours worked during that week. (See, e.g., §§ 19843, 19844, 19844.1, 19845, 19846, 19849, 19849.4 [all relating to overtime compensation]; Cal. Code Regs., tit. 2, § 599.700 [“ ‘Overtime’ is authorized time worked in excess of regularly scheduled workweek.”].) (Similarly, the designation of a normal “workday” in § 19851, subd. (

a) defines the number of hours an employee may be required to work in a day before the employee may be entitled to receive overtime compensation for additional hours worked that day.) The legislative history of

section 19851 fully supports this understanding of the statute, which traces its roots to

section 73 of the State Civil Service Act, initially enacted in 1943. (Stats. 1943, ch. 1041, § 1, pp. 2976-2977.) That statute required the State Personnel Board to determine and establish the normal workweek for each class of state employees for which a monthly salary range was fixed, providing that “[f]or purposes of determining eligibility for overtime compensation” the State Personnel Board “shall allocate, and reallocate as the needs of the service require,” each such class into “(1) [c]lasses with a normal work week of 40 hours; [][] (2) [c]lasses with a normal work week of 44 hours; [][] (3) [c]lasses with a normal work week of 48 hours; [][] [and] (4) [c]lasses which can not be included in any plan for payment of overtime because: [f] (a) [w]hile requiring at least 40 hours per week, the duties and responsibilities are such that they do not adapt themselves to a maximum number of hours per week[, or] [1] (b) [t]he performance of duties is required on a part-time and intermittent basis and does not amount to a maximum of 40 hours per week.” In 1945, the provisions of

section 73 of the State Civil Service Act were transferred to former

section 18020 of the Government Code. (Stats. 1945, ch. 123, § 1, p. 535.) As originally enacted in 1945, former

section 18020 provided: “For the purpose of determining eligibility for overtime compensation, the State Personnel Board shall establish the normal work week for each class in the State civil service. ...” The statute then set forth the same three-tier workweek schedule—40 hours, 44 hours, and 48 hours—contained in the earlier provision. At the same time, the Legislature enacted former

section 18021, which provided that “[e]very State employee compensated on a monthly basis required and ordered to work in excess of a normal work week as established by the State Personnel Board for his class . . . shall receive overtime compensation for all such overtime.” (Stats. 1945, ch. 123, § 1, p. 535.) In 1947, former

section 18020 was modified to eliminate the prior introductory clause referring to overtime compensation and to substitute the term “work week” for “normal work week” (Stats. 1947, ch. 1304, § 2, p. 2841), but former

section 18021, as also amended in 1947, continued to provide that “[s]alaried state employees . . . shall, if required and ordered to work in excess of the hours prescribed for the group, receive overtime compensation for all such overtime work” (Stats. 1947, ch. 1304, § 3, p. 2842). In 1955, former sections 18020 and 18021 again were amended in a single enactment. (Stats. 1955, ch. 1787, §§ 1, 2, pp. 3295-3296.) At that time, the Legislature added to former

section 18020 the statutory language presently contained in the first sentence of

section 19851—that is, the language establishing, as a matter of state policy, that a 40-hour workweek (rather than the prior three-tier scheme—40 hours, 44 hours, and 48 hours) generally would constitute the workweek for state employees, but also providing that “workweeks of a different number of hours may be established in order to meet the varying needs of the different state agencies.” At the same time, former

section 18021 was amended to provide that (1) for each class or position for which the State Personnel Board established a monthly or annual salary, the board shall establish and adjust “workweek groups” and assign each class or position to such a group, and (2) the board, “after considering the needs of the state service and prevailing overtime compensation practices, may establish workweek groups of different lengths or of the same length but requiring different methods of recognizing or providing compensation for overtime.” Accordingly, under the 1955 legislation, the establishment and adjustment of workweeks for state employees under former sections 18020 and 18021 continued to be related to the determination of such employees’ eligibility for overtime compensation.

In 1974, former sections 18020 and 18021 again were amended in a single enactment. (Stats. 1974, ch. 1368, §§ 2, 3, pp. 2962-2963.) As a result, former

section 18020 established the eight-hour day as the generally applicable workday of state employees, but also recognized that workdays of a different number of hours could be established to meet the varying needs of different state agencies. Former

section 18021, in turn, was amended to authorize the State Personnel Board to provide “for the payment of overtime in designated classes for work performed after the normal scheduled workday or normal scheduled workweek.” (Stats. 1974, ch. 1368, § 3, p. 2963.) In 1981, the Legislature adopted comprehensive legislation (Stats. 1981, ch. 230, § 55, pp. 1168-1232) that added

section 19815 to the Government Code, creating the DPA, and

section 19816, transferring to that department (among other functions) “the duties, purposes, responsibilities, and jurisdiction exercised by the State Personnel Board with respect to the administration of salaries, hours, and other personnel-related matters, training, performance evaluations, and layoffs and grievances.” The 1981 legislation also transferred the provisions of former

section 18020, relating to the workweek of state employees, to a newly enacted

section 19851, and transferred the provisions of former

section 18021 to a newly enacted

section 19843. Thus, whereas

section 19851 now sets forth the general state policy with regard to the workweek and workday of state employees,

section 19843 currently directs the DPA to establish and assign to a workweek group each class or position in state employment for which a monthly or annual salary range is established.

Section 19843 further provides: “The department, after considering the needs of the state service and prevailing overtime compensation practices, may establish workweek groups of different lengths or of the same length but requiring different methods of recognizing or providing compensation for overtime. The department may also provide for the payment of overtime in designated classes for work performed after the normal scheduled workday or normal scheduled workweek.” (§ 19843, subd. (a).) This legislative history confirms that the purpose underlying

section 19851’s designation of a “workweek” for state employees is to establish the number of hours an employee must work before potentially becoming eligible for overtime compensation. The furlough program instituted by the Governor does not purport to alter the “workweek” of the affected state employees, as that term is used in

section 19851. In weeks that include a mandatory furlough day, a state employee’s “workweek,” for purposes of

section 19851, remains at 40 hours, and the employee is entitled to overtime compensation only if he or she works more than 40 hours during that week.

The DPA’s own internal memoranda advising other state agencies regarding the proper application of the furlough confirm that this is the case. (See DPA, Mem. to Personnel Management Liaisons (hereafter DPA PML Memo) No. 2009-007 (Feb. 3, 2009) p. 2; DPA PML Memo No. 2009-010 (Feb. 11, 2009) p. 1; DPA PML Memo No. 2009-030 (July 8, 2009) p. 1 [all available at <http://www.dpa.ca.gov/personnel-policies/pmls/index.htm> (as of Oct. 4, 2010)].) Other statutes that encompass situations in which employees work less than a full 40-hour week for reduced compensation refer to the applicable program as one involving “reduced worktime,” and do not suggest that the employee’s reduced

schedule constitutes the employee’s “workweek” for purposes of

section 19851. (See §§ 19996.19-19996.29 [Reduced Worktime Act].) Viewed in context, the provisions of

section 19851, subdivision (

a) simply were not intended to apply to the type of unpaid furlough at issue in the present case. Thus, we disagree with the trial court’s conclusion that

section 19851, subdivision (

a) reasonably may be interpreted to provide the Governor and the DPA with the authority to institute the mandatory unpaid furlough program in question. At the same time, we also reject the contention, advanced by a number of plaintiffs, that the provisions of

section 19851, subdivision (

a) properly should be interpreted to preclude the Governor from adopting the furlough program at issue. These plaintiffs, relying upon the history of

section 19851, subdivision (

a) that we briefly have summarized (see, ante, at pp. 1026-1028), contend that the statute should be interpreted to permit the DPA to adopt only varying work schedules that provide for workweeks of more than 40 hours, but not to authorize the DPA to adopt a workweek of less than 40 hours. In our view, however, nothing in either the language or the history of

section 19851, subdivision (

a) suggests that in an appropriate circumstance—for example, when a particular type of employment is particularly stressful or arduous and a shorter workweek is considered necessary for the health of the employee or the safety of the public—the DPA would not be authorized to establish a normal workweek of less than 40 hours. Furthermore, as already explained, the term “workweek” as employed in

section 19851, subdivision (

a) simply refers to the maximum numbers of hours an employee may be required to work before becoming eligible for overtime compensation; it does not guarantee a minimum number of hours that a state employer must permit an employee to work. Thus, just as

section 19851, subdivision (

a) cannot properly be interpreted as authorizing the Governor to impose the furlough here at issue, the provision also cannot properly be interpreted as prohibiting the Governor from imposing such a furlough. The statute simply does not address the furlough situation. The trial court was mistaken for an additional reason in concluding that

section 19851, subdivision (

a) authorized the Governor’s furlough order. Subdivision (

b) of that statute explicitly provides that “[i]f the provisions of this

section are in conflict with the provisions of a memorandum of understanding reached pursuant to

Section 3517.5, the memorandum of understanding shall be controlling without further legislative action . . . .” (§ 19851, subd. (b).) Thus, with respect to represented state employees who are covered by an applicable MOU—like the employees on whose behalf the present litigation was brought—the Governor’s furlough program would be authorized and valid only if the MOU granted the Governor or the DPA the authority unilaterally to impose such a program without the prior agreement of the affected employee or his or her certified bargaining representative. In such an instance, it would be the MOU, rather than

section 19851, subdivision (

b) that would constitute the source of the Governor’s authority to act. Finally, it is our view that the trial court’s heavy reliance upon the workweek provisions of

section 19851, subdivision (

a) as providing authority for the Governor’s furlough order, fails to take adequately into account the circumstance that the reduction in workdays mandated by this order was neither the primary purpose nor the primary effect of the order. It is clear from the situation in which the executive order was issued that the purpose of the furlough program here at issue was to reduce state expenses by reducing the state funds paid to state employees.

The two-day-a-month furlough was adopted not because there was a lack of work or a reduced need for state services that reasonably called for a reduction in workdays, but rather as a means to reduce the state’s payroll expenses in light of the state’s fiscal problems. Focusing upon the aspect of the program that reduced the number of days the affected employees were permitted to work fails to give adequate consideration to the substantial reduction in the wages or earnings of state employees that constituted the primary effect of the furlough program on the employees in question.

Although the Governor’s decision to achieve the desired reduction in state employee compensation expenses through a mandatory unpaid furlough rather than through a simple pay cut afforded some mitigating benefits to employees, in the final analysis the reduction in the wages earned by the affected employees—and the corresponding savings obtained by the state—were the most significant changes in the terms and conditions of employment effectuated by the Governor’s executive order. Nothing in

section 19851, subdivision (

a) purports to provide the Governor or the DPA with the authority to impose a unilateral across-the-board reduction of state employees’ wages or earnings in this fashion. In sum, for all of the above reasons, we conclude the trial court erred in ruling that the provisions of

section 19851, subdivision (

a) authorized the Governor to institute unilaterally the challenged furlough program. B In upholding the Governor’s action, the trial court also relied upon

section 19849. Subdivision (

a) of that statute provides in full: “The [DPA] shall adopt rules governing hours of work and overtime compensation and the keeping of records related thereto, including time and attendance records. Each appointing power shall administer and enforce such rules.” (§ 19849, subd. (a).) As is evident from the language of this statute, it does not purport to grant the DPA additional substantive authority over the hours state employees work or the wages they earn, but simply authorizes the DPA to adopt administrative rules that the employing state agency is to enforce, including recordkeeping rules related to hours of work and overtime compensation. The trial court, having concluded that

section 19851, subdivision (

a) provided

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