SCOTLAND, P. J., Dissenting. 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. [708]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 “special system” for CEA’s, and thus violates the constitutional requirement of a “general system” of civil service. (Cal. Const., art. VII, § 1, subd. (b).)
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) 26 Cal.2d 224, 232 [157 P.2d 639, 175 A.L.R. 1109].) The Legislature has broad discretion to determine when classifications for differing treatment bear a rational relationship to a lawful state purpose. (Estate of Horman (1971) 5 Cal.3d 62, 75 [95 Cal.Rptr. 433, 485 P.2d 785].) A law is general when it applies equally to all persons within a legislative classification. (Lelande v. Lowery, supra, 26 Cal.2d at p. 232.) Nothing in the requirement of a “general system” of civil service laws precludes the Legislature from making reasonable classifications for differing treatment within the system, so long as the laws apply uniformly within classifications.
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) 84 Cal.App.3d 184, 189 [148 Cal.Rptr. 315].) While “permanent” is [709]the antonym of “temporary,” it is not the equivalent of perpetual or unending or lifelong or unchangeable or existing forever. (Ibid.)
It is true that an employee in a CEA position lacks the full range of protections accorded civil servants.1 However, the employee is not wholly without attributes of permanency. CEA appointment follows a competitive examination; is for an indefinite period; and cannot be terminated based upon age, vision impairment, sex, race, religious creed, color, national origin, ancestry, marital status, physical or mental disability, opposition to unlawful employment practices, participation in an investigation, proceeding or hearing on a charge of discrimination, or on a change in appointment based upon political or religious opinion or affiliation. (See Campbell v. State Personnel Bd. (1997) 57 Cal.App.4th 281, 292 [66 Cal.Rptr.2d 722].)
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) 71 Cal.App. 633, 643-646 [236 P. 339].) In light of the Legislature’s wide discretion to classify and treat differently those positions that are subject to distinction on a natural, intrinsic, or constitutional basis (Lelande v. Lowery, supra, 26 Cal.2d at p. 232), I conclude the Legislature acted within its discretion in establishing different attributes of permanency for this particular class of position.
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 [710]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) 62 Cal.App.4th 386 [72 Cal.Rptr.2d 758] (Kidd), and the California Supreme Court’s earlier decision in Almassy v. L. A. County Civil Service Com. (1949) 34 Cal.2d 387 [210 P.2d 503] (Almassy), plaintiffs contend that competition requires ranking and, thus, that the above quoted regulation is inconsistent with the constitutional and statutory requirements of competitive examination. But Kidd and Almassy are of no assistance to plaintiffs.
[711]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, 62 Cal.App.4th at p. 393.) The supplemental certification procedure operated in disregard of established hiring procedures by adding to the list of eligible hirees, solely on the basis of race or gender, individuals who failed to perform well enough to be in the top three ranks. (Ibid.) In this respect, the supplemental certification procedure did not merely establish a preference for certain persons among equally qualified individuals; rather, it constituted a preference for lower qualified persons over better qualified individuals based upon nonmerit factors. (Id. at p. 392.)
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, 62 Cal.App.4th at p. 402.)
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.)
[712]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 filled through competitive examination. (Cal. Const., art. VII, § 1, subd. (b); Gov. Code, § 19889.3.) However, plaintiffs have not cited, and I have not identified, specific authority for the proposition that a numerical ranting of competitors is an essential element of a competitive examination in all instances.
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) 64 Cal.2d 327 [49 Cal.Rptr. 825, 411 P.2d 921, 24 A.L.R.3d 795] [unfair competition]; A-Mark Coin Co v. General Mills, Inc. (1983) 148 Cal.App.3d 312, 323 [195 Cal.Rptr. 859] [tort defense of free competition]; Charles C. Chapman Building Co. v. California Mart (1969) 2 Cal.App.3d 846, 855 [82 Cal.Rptr. 830] [same].)
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.” [713]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) 29 Cal.3d 168, 184, fn. 7, 194 [172 Cal.Rptr. 487, 624 P.2d 1215].) Rather, “the ‘sole aim’ of [those provisions] was to establish, as a constitutional mandate, the principle that appointments and promotions in state service be made solely on the basis of merit.” (Id. at pp. 183-184; see also State Personnel Bd. v. Fair Employment & Housing Com. (1985) 39 Cal.3d 422, 436 [217 Cal.Rptr. 16, 703 P.2d 354].) Having established this merit principle as a matter of constitutional law, the provisions leave the Legislature with a free hand to fashion laws relating to personnel administration for the best interests of the state. (Pacific Legal Foundation v. Brown, supra, at p. 184.)
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 create a system of selection for CEA positions that need not conform to the usual methods of selection (Gov. Code, § 19889.3). The Board determined that scoring and ranking is not required. (Cal. Code Regs., tit. 2, former § 548.40.) The Legislature has not seen fit to interfere with the Board’s decision.
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, 29 Cal.3d at p. 180; Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1217-1221 [70 Cal.Rptr.2d 745]; and see Almassy, supra, 34 Cal.2d at p. 396.)
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 [714]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, 34 Cal.2d at p. 398.) The candidates should be tested under common criteria. (Id. at p. 399.) The examinations must be conducted under standards which make the competition fair to all candidates. (Id. at p. 404.) This requires that relevant standards be established before testing rather than left to the whim of the examiner. (Id. at p. 398.) And, of course, the standards established must be relevant to the position sought. (Id. at p. 400; see Kidd, supra, 62 Cal.App.4th at p. 402.)
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, 34 Cal.2d at p. 404.) In other words, as previously noted, the constitutional imposition of the merit principle was not intended to tie the hands of the Legislature and the Board in fashioning a method of selection appropriate to the job or the class of position at issue. (State Personnel Bd. v. Fair Employment & Housing Com., supra, 39 Cal.3d at p. 436; Pacific Legal Foundation v. Brown, supra, 29 Cal.3d 194.)
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 that will be used as standards in the examination. (Cal. Code Regs., tit. 2, former § 548.40.) The examination announcement must identify the position to be filled and the evaluation standards and methods to be applied. (Cal. Code Regs., tit. 2, § 548.41.) It is the Board’s policy that examinations be publicized as widely as appears practicable, and there must be reasonable assurance that potential competitors are provided an opportunity to be informed of their general nature and scope. (Ibid.) The examination process is subject to the oversight of the Board’s executive [715]officer. (Cal. Code Regs., tit. 2, §§ 548.30-548.41.) Following examination, the person appointed must be well qualified and carefully selected. (Cal. Code Regs., tit. 2, former § 548.40.) The method or methods by which the examination was conducted must be made available to competitors upon request. (Cal. Code Regs., tit. 2, § 548.43.) Unsuccessful competitors may appeal to the Board on the grounds of irregularity, fraud or discrimination in the conduct of the examination, and may challenge the qualifications of the person appointed on grounds he or she is not well qualified and/or was not carefully selected. (Cal. Code Regs., tit. 2, § 548.49.)
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) 17 Cal.4th 93, 100-101 [69 Cal.Rptr.2d 900, 948 P.2d 412]; Pugh v. See’s Candies, Inc. (1981) 116 Cal.App.3d 311, 330 [171 Cal.Rptr. 917].)
“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) 203 Cal.App.3d 743, 769 [250 Cal.Rptr. 195]; see also Cotran v. Rollins Hudig Hall Internat., Inc., supra, 17 Cal.4th at p. 101.)
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 [716]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 been rejected by the courts. (See, e.g., Kidd, supra, 62 Cal.App.4th 404; Sharp v. Civil Service Com. (1993) 14 Cal.App.4th 1507, 1511 [18 Cal.Rptr.2d 407]; Dawn v. State Personnel Board (1979) 91 Cal.App.3d 588, 591-592 [154 Cal.Rptr. 186].) Yet if, as plaintiffs contend and the majority opinion concludes, formalized scoring and ranking are essential to competition, it is difficult to understand how any process that does not award the job to the highest ranked competitor can fulfill the constitutional mandate. The answer, I conclude, is that scoring and ranking are not absolute and invariable elements of a competitive selection process, but are among the tools that the Legislature and the Board can utilize, as they deem appropriate, in devising a competitive selection process.
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.)2 In this light, the regulatory process requires only that the appointing power formally place competitors into one of two ranks: (1) the successful competitor who obtains the appointment, and (2) unsuccessful competitors.
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 [717]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 process is competitive must be determined from the totality of the process with reference to the particular position to be filled; and if, from the totality of the circumstances, it appears that a particular selection process is competitive, the courts must defer to the authority of the Legislature and the Board. In view of the unique nature of CEA positions, the position-specific nature of the selection process, and the totality of that process, I am satisfied that the process devised by the Legislature and the Board is competitive. Further, I do not believe that judicial imposition of a scoring and ranking requirement will add anything of substance to the competitive nature of the process. Accordingly, with appropriate deference to the wide discretion of the Legislature and the Board, I cannot say that the procedures are constitutionally inadequate for want of a requirement of specific ranking of candidates.
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) 80 Cal.App.4th 526 [95 Cal.Rptr.2d 324] (Alexander). In Alexander, a panel of this court, with the same lead author but with otherwise different panel members, considered challenges to a demonstration project devised by the Board pursuant to Government Code sections 19600 through 19607. The demonstration project incorporated selection procedures applicable to CEA’s. (Cal. Code Regs., tit. 2, former § 549.6.) Concluding that scoring and ranking are essential to a competitive selection process, the Alexander opinion held that the CEA selection process was invalid and thus invalidated the demonstration project to the extent it incorporated the CEA process. (Alexander, supra, 80 Cal.App.4th at p. 543.)
Under the compulsion of Alexander, the Board amended its regulation governing the CEA selection process. (Cal. Code Regs., tit. 2, § 548.40.) The [718]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) 13 Cal.App.4th 141, 146-147 [16 Cal.Rptr.2d 408]; Downtown Palo Alto Com. for Fair Assessment v. City Council (1986) 180 Cal.App.3d 384, 391-392 [225 Cal.Rptr. 559].)
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 CEA position.3 According to plaintiffs, appointment to a CEA position through transfer violates the constitutional and statutory requirement for competitive examination. Again, I disagree.
[719]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) 29 Cal.App.2d 314, 319-320 [84 P.2d 185].) However, in the event an appointing power attempts such a subterfuge and the executive officer fails to curtail the effort by withholding approval, the remedy would be an action to establish that the transfer provision is unlawful as applied. The mere fact that an appointing power might attempt to abuse the power of transfer will not support a determination that the transfer rules are invalid on their face. (Pacific Legal Foundation v. Brown, supra, 29 Cal.3d at pp. 180-181.)
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.
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 [719]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.”