print logo
Main Content Anchor

DPA Case Number 03-B-0014 - Denial of Out-of-Class Claim

Final Non-Precedential Decision Adopted: May 1, 2003
By: Howard Schwartz, DPA Chief Counsel

DECISION

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on April 10, 2003, at Riverside, California.
Appellant was present and was represented by William L. Winne, Attorney.
Donna Silverman, Assistant Chief, Division of Human Resources represented the Department of Transportation (CALTRANS), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

I - JURISDICTION

On May 31, 2002, appellant filed an out-of-class grievance with CALTRANS. It was denied by CALTRANS at the third level on September 17, 2002. On October 7, 2002, appellant appealed the third level denial to DPA. On February 7, 2003, DPA issued a preliminary determination denying the claim. On February 14, 2003, appellant appealed the preliminary determination and requested a hearing on the matter.
Government Code sections 19815.4(e) and 19818.16 provide for DPA to review and consider a denial of an out-of-class grievance from an excluded employee so long as the employee files a timely appeal. The time for filing an appeal is within thirty (30) calendar days after service of the preliminary determination. Appellant’s appeal is considered timely. Therefore, the appeal is properly before DPA for review.

II - CAUSE FOR OUT-OF-CLASS

Appellant claimed that from July 1995 through May 2002, he worked out of class as a Sup TP.
As relief from working out-of-class, appellant initially requested he receive a limited term appointment at the highest pay level as a Sup TP or retroactive pay consisting of the differential between the Sup TP and Sr TP salaries since July 1995. Appellant calculated this differential to be $45,376.
Pursuant to Government Code section 19818.16, appellant is only entitled to reimbursement for out-of-class work for the 12-month period immediately preceding his filing of the grievance in May 2002.

III - SPECIFICATIONS FOR CLASSIFICATIONS

The classification of Sr TP is one in a series of five Transportation Planner classifications used by CALTRANS to perform entry level, journeyperson, supervisory, and managerial responsibilities in its State transportation program. The Transportation Planner plans, develops, organizes, and directs activities which integrate various social, economic, environmental, transportation, and land use factors to support implementation of a balanced, multimodal State transportation program. Typical duties include performing transportation studies for the development of transportation systems of all modes; participating in policy development and implementation; analyzing proposed policies from other governmental agencies; developing and analyzing legislation related to transportation; proposing, performing and evaluating transportation planning research; monitoring and certifying the regional transportation planning process for conformance with State and Federal requirements; providing transportation planning expertise to Federal, State, regional, and local agencies and transit operators to carry out the transportation planning process; and, participating as a departmental representative on transportation planning issues at inter- or intradepartmental meetings and public or private meetings and hearings.
The Sr TP is the full supervisory level of the class. Under general direction, the Sr TP directs the work of a headquarters branch; or has charge of a district branch or unit including project level activities and regional level analysis; or acts as a technical expert performing the most difficult and complex work which is either critical to the Department’s basic mission or of statewide significance.
The Sr TP must have knowledge of the planning process and general practices of transportation planning; research methods and techniques including conducting or participating in planning studies, and contemporary transportation, environmental, land use, social, economic, fiscal, legal, and political issues, and effective public participation techniques. He must also have knowledge of the Department’s budget process; principles and techniques of selecting outside consultants; principles and techniques of effective supervision and personnel management; and, knowledge of a supervisor’s role in safety, health, and labor relations.
The Sr TP must have the ability to gather, compile, analyze, and interpret data, conduct studies related to State transportation planning; analyze problems and develop appropriate solutions; recommend effective courses of action; evaluate general planning proposals; work independently on complex planning projects; organize and direct the work of a staff engaged in a variety of planning activities; evaluate and monitor the work of consultants; communicate effectively with other agencies, the public and the media; and, effectively contribute to the Department’s safety health and labor relations program objectives.
The Sup TP is the program manager level of the series. Under general direction, the Sup TP plans, organizes, and directs a major transportation and/or environmental or research and development program. The Sup TP provides direction on implementation of policies related to transportation and/or environmental planning. The Sup TP must have all the knowledge of the Sr TP plus must know the purposes, organization, and policies of Federal, State, regional, and local transportation agencies and must have knowledge of CALTRANS program goals and objectives. The Sup TP must have the ability to perform the tasks, duties, and responsibilities of a Sr TP.
It was undisputed at hearing that the Sup TP is a higher classification than Sr TP. The pay range for the classifications between May 2001 and May 2002 was not made part of the record.
The primary difference between the two classes is that the Sup TP has a greater level of responsibility and authority for a wider variety of programs and projects than does a Sr TP.

IV - STANDARD OF REVIEW

In determining whether or not appellant’s assigned work was performed at the higher classification of Sup TP, one must evaluate the kind and variety of duties performed and the relative amount of time spent performing the duties. An employee will be considered as working in a higher classification when he is performing the full range of duties of the higher class on a regular and consistent basis (at least 50% of the time).
During the period May 2001 through May 2002, appellant was the manager for CALTRANS’ IGR/CEAQ Program in District 7, one of the largest transportation districts in the state. Under his management, this branch was responsible for analyzing the environmental effect of proposed land uses and recommending traffic mitigation measures and air quality proposals consistent with existing legislation, regulation, and policy. Appellant testified that he continually developed operating procedures for this program and that he independently managed this activity. He testified that at least one project in this program, the Ahmanson community, became controversial and politically sensitive. In May 2002, the Chair of the California Transportation Commission (CTC) asked CALTRANS’ District 7 Director to assign someone from the District to work with him on the Ahmanson project. Appellant was given this assignment and subsequently worked directly with the Chair of the CTC and other public officials. As part of this responsibility, the Chair of the CTC asked appellant to act as his intermediary with the Chair of Ventura County to improve communications between the two. Appellant also testified he expected to be called as a witness in litigation concerning the Ahmanson community. At some point, appellant was also given authority by CALTRANS to give a statement to the media regarding the project. Appellant estimated he spent approximately 20% to 25% of his time on the Ahmanson project.
Appellant testified that the IGR/CEQA Branch was involved in approximately ten other land use projects, some of which were larger than Ahmanson. He testified he performed the same activities in connection with these projects. Appellant estimated he spent approximately 75% of his time managing the IGR/CEQA program.
In addition to his IGR/CEQA responsibilities, appellant testified he was involved in community based planning. Appellant testified that although he participated in this activity, it is managed and directed through a different CALTRANS office. In connection with community based planning, appellant testified he regularly attended meetings with city mayors, county representatives, members of local and regional agencies, and in some cases, state or federal legislators and other representatives of other environmental groups to provide broad policy direction and recommendations regarding transportation and air quality. He testified that some of these groups looked to him for advice, guidance and direction.
Appellant provided documentation and testimony that he supervised a staff of five to seven employees, including up to five Transportation Engineers (three of which may be on a rotating basis), and two Associate Transportation Planners. Appellant’s staff assisted him in evaluating and processing IGR/CEQA issues as well as other land use and environmental projects assigned to the branch. Appellant relied on his lead Associate Planner to assign work and he relied on his staff to prepare reports, studies and other relevant documents. Appellant signed environmental reports for the District and his staff’s final work products. When working on the most sensitive or controversial projects, he personally provided his staff with additional guidance and direction and he performed some of the most sensitive duties himself. Appellant was responsible for approving his staff’s timesheets, performance reviews, vacation requests, and for addressing job performance problems. Appellant testified that he had a very experienced staff that required little guidance or supervision. He estimated he spent 5% to 7% of his time performing supervision tasks.
Appellant testified he was contacted directly by public officials at all levels and by high ranking managers in CALTRANS. Appellant was well known as a technical expert in the area of traffic mitigation. Appellant infrequently contacted his supervisor for input in this area.
During the period May 2001 through May 2002, appellant reported to the Chief of the Department of Transportation Planning, Office of Regional Planning & Los Angeles Regional Transportation Study for District 7 in Los Angeles. The Chief was classified as a Sup TP. He supervised a total of four Sr TPs, including appellant. According to testimony and documentation provided by CALTRANS, each of the Sr TP’s worked under the general direction of the Sup TP. Each was responsible for acting as the lead and single focal point for a particular transportation planning activity. Each was responsible for providing any and all information pertaining to a project to various interested parties including the CALTRANS’ Director and Deputy District Director. All Sr TP’s had interagency contacts with cities, counties, and special districts and all attended meetings and sat on various tasks forces with State, Federal, and other elected officials. Each Sr TP provided guidance and direction for evaluating and recommending to local agencies steps that should be taken to comply with various transportation and air quality related legislation and plans. Each worked with the local, State, and Federal agencies to implement transportation plans for their area of responsibility. All Sr TP’s had discretion to make decisions regarding the implementation of a policy. The Sr TP’s did not have authority to set policy and they did not have the authority to commit funds or to commit to CALTRANS’ support for a plan or policy. The Chief met with his Sr TP’s on a weekly basis.

V - FINDINGS OF CALTRANS AND DPA

Both CALTRANS and DPA found that appellant’s duties as submitted on the Employee’s Job Description, Form 651 were generally those performed by appellant during the relevant period. However, CALTRANS determined that the percent of time appellant estimated was inaccurate because, although he listed numerous supervisory responsibilities, he did not include any percent of time spent supervising his staff. At hearing, appellant’s supervisor estimated appellant spent 50% to 60% of his time supervising his staff.
CALTRANS also pointed out that although appellant managed the IGR/CEQA Branch in District 7, CALTRANS’ statewide program was managed by a Sup TP in another office. CALTRANS contended that as the manager of the District program, appellant had authority to exercise discretion implementing the statewide policy, but he did not make and had no authority to change respondent’s statewide policy. Respondent argued that appellant could neither accept nor agree to distribute funds under this program. Respondent also contended that appellant had no authority to require any of the agencies or local entities he worked with to implement any of his recommendations.
CALTRANS also found that the community based planning meetings or task forces that appellant participated in were also appropriately attended by other employees of various classes. Appellant’s responsibility and authority at such meetings was to share respondent’s position on various topics of discussion.
Respondent supported appellant’s contention that he did receive contacts directly from various individuals at varying levels of local, State, and Federal government as well as from within its own organization. Respondent was unable to identify with specificity what percent of appellant’s work time was required to respond to such direct inquiries. Respondent also found that some of the contacts appellant received were originally made to individuals at a higher level and then referred to appellant.
DPA found that appellant was performing at the supervisory rather than management level. It held that the Sup TP, a management level position, was responsible for an overall functional transportation planning area such as an entire district while a Sr TP was responsible for a smaller planning program or sub-area.
Both the State Board of Equalization (BOE) and DPA found that the duties as performed by appellant were appropriate to the Sr TP class and were performed by other Sr TP’s within CALTRANS.

VI -

APPELLANT’S RESPONSE

Appellant challenged BOE and DPA’s analysis. He contended that the analysis was made based on the duties appellant performed during the last quarter of 2002 and, therefore, were irrelevant to the May 31, 2001 through May 31, 2002, time period eligible for consideration under Government Code section 19818.16.
Appellant also contended that DPA’s analysis was inadequate because DPA personnel performing the analysis was not adequately familiar with CALTRANS’ structure, appellant’s job duties, and did not consider the fact that District 7 is one of CALTRANS’ largest districts and, therefore, that appellant had additional responsibilities in dealing with highly sensitive issues.
Appellant also contended that he performed the duties of Sup TP as outlined in a memorandum drafted on or about August 1, 1998 by one of CALTRANS’ Personnel Analysts. This memorandum allegedly provided a “summary of factors which affect the allocation of positions to the Supervising Transportation Planner classification.” Appellant argued that the work he performed on the Ahmanson project as well as in his community based planning activities met all of these factors. Specifically, appellant argued he: 1. Was familiar with the intricacies of the transportation planning program and the administrative of it; 2. Delegated the majority of staff work to his subordinates, but maintained the most sensitive projects; 3. Participated in teams consisting of high level personnel in areas of great sensitivity or complexity and that he oversaw the products of such teams; 4. Was responsible for entire program areas; 5. Had contacts with executive level staff of districts and CALTRANS; initiated and responded to correspondence of a highly sensitive nature; made presentations to local and regional agencies in large districts; and 6. Developed and managed a departmental work program with broad policy direction from executive staff and provided guidance and advice to top management and developed operation policy. He also argued that his errors affected the entire department.
 
* * * * *

PURSUANT TO THE FOREGOING FINDINGS OF FACT THE ALJ MAKES THE FOLLOWING DETERMINATION OF ISSUES:

Government Code section 19818.16 provides an employee who works out-of-class with the right to request reimbursement by filing an appeal with DPA. Reimbursement may be granted only if the employee proves that he has performed duties outside the scope of his present classification. If the employee can establish satisfactorily that he performed such duties, DPA has the responsibility for determining whether he is entitled to be reimbursed. In accordance with the provisions of Section 19818.16(a) retroactive payment of an out-of-class claim shall be awarded for a period no greater than one year preceding the filing of the claim.
In seeking reimbursement, an appellant has the burden of proof and the burden of going forward in the appeal hearing. In determining whether or not the assigned work is in a higher classification, the kind and variety of duties performed and the relative amount of time, which the employee spent in performing the duties, must be evaluated.
In this case appellant demonstrated that he was the program manager for respondent’s District 7 IGR/CEQA Program. Respondent recognized appellant as such by allowing him to use the working title of Program Manager. Appellant also demonstrated that he participated in meetings and planning sessions as part of CALTRANS’ community based planning activities which were defined and directed by another CALTRANS’ office. It was undisputed appellant had direct contact with executive level staff and engaged in politically sensitive projects in which he had contact with local, State, and Federal political officials as well as representatives of other environmental groups in District 7. It was undisputed he was a well known technical expert in the area of traffic mitigation and that he infrequently went to his supervisor for guidance in this area because his knowledge exceeded that of his supervisor. It was also undisputed that he supervised a staff of five to seven subordinates and had the responsibility for all the supervisorial duties in connection with that staff.
A review of the specification for the Sr TP and the Sup TP indicates that the duties of these classes are overlapping. Both classes are required to be able to work independently on complex planning projects, organize and direct the work of a staff, communicate effectively with other agencies, the public and the media. Both classes are required to provide direction of the analysis of transportation and environmental planning studies.
The distinguishing factor between the classes is one of degree. The Sr TP is the supervisory level position that has charge of a district branch or unit working on project level activities and regional level analysis. The Sr TP may also act as a technical expert performing the most difficult and complex work which is critical to the Department’s basic mission or of statewide significance. The Sup TP is the program manager level position that has responsibility for directing a major transportation and/or environmental research and development program. The Sup TP’s area of responsibility exceeds that of the Sr TP in that the Sup TP has a broader scope of transportation planning responsibility, a broader level of decision-making authority, a greater variety of work contacts , and a greater span of supervising responsibility, and responsibility for program and policy implementation.
In the instant case, appellant’s supervisor, a Sup TP, provides supervision for the Office of District Transportation Planning rather than a single branch of that office. This includes supervision of a total of four Sr TP’s who in turn are responsible for different program areas of transportation and environmental planning. The Sup TP provides general direction to the Sr TP’s and meets with them weekly. Thus, the Sup TP has a greater span of control and responsibility in managing multiple facets of respondent’s District 7 transportation planning program than appellant does as a Sr TP who manages one program for the District.
Appellant presented no examples where he set statewide policy for respondent’s IGR/CEQA program or that he had any responsibility for or input into the formation of that program’s statewide operation. He also presented no evidence that he had any authority to commit CALTRANS to a position on any issue or that he had authority to expend or collect funds for any project. Since the work appellant performed during the relevant period falls within that prescribed by the appropriate class specification, it is unnecessary to determine what amount of time appellant spent performing such duties.
 
* * * * *

WHEREFORE IT IS DETERMINED

that the appeal from Denial of Out-of-Class Claim effective May 31, 2001 through May 31, 2002, is denied.
 
  Updated: 5/3/2012
One Column Page
Link Back to Top