Final Non-Precedential Decision Adopted: June 13, 2001
By: Howard L. Schwartz, DPA Chief Counsel
DECISION
This matter was heard before Mary C. Campisi, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on January 8, 2001, and at 9:00 a.m. on May 22, 2001, at Sacramento, California.
Appellant was present without representation.
Donald Waltz, Chief, Boating Facilities Division, represented the Department of Boating and Waterways (DBW), respondent. Barbara Hudson, Personnel Management Analyst, Classification and Compensation Division, represented DPA.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.
I - JURISDICTION
On June 27, 2000, appellant filed an out-of-class grievance with DBW. On August 8, 2000, DBW denied the grievance at the second level. On August 15, 2000, appellant appealed the denial to DPA. On October 5, 2000, DPA issued a preliminary determination denying the appeal. On October 10, 2000, appellant appealed the preliminary determination and requested a hearing.
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. To be timely, an appeal must be filed within thirty (30) calendar days after service of the preliminary determination. Appellant is an excluded employee, and his appeal was timely filed. Therefore, this matter is properly before DPA for adjudication.
II - CAUSE FOR OUT-OF-CLASS CLAIM
In his original grievance, appellant claimed that for the prior three years he had been assigned and performed the duties and responsibilities of a “supervisor/manager” of DBW’s Capital Outlay Program. As a remedy he sought one year’s pay differential between that of a Senior Civil Engineer and that of a Principal Engineer or a Capital Outlay Program Manager.
On October 10, 2000, appellant responded to DPA’s initial denial of his claim noting that DPA’s underlying analysis was incomplete because it did not consider the next level of work responsibility at DBW, which was Supervising Civil Engineer.
At the first day of hearing on January 8, 2001, appellant stipulated that he was no longer claiming work out of class in either the position of Principal Engineer or Capital Outlay Program Manager, but rather as a Supervising Civil Engineer. Respondent agreed to reevaluate appellant’s claim.
The matter was taken off calendar while DPA completed its reevaluation. On March 23, 2001, DPA again denied appellant’s claim of out of class work. Appellant requested that the matter be placed back on calendar in order for the ALJ to determine whether appellant was working out of class for the one year preceding the filing of his grievance as a Supervising Civil Engineer.
At issue is whether appellant worked out of class as a Supervising Civil Engineer from June 27, 1999 (one year prior to the date the grievance was filed)1 to March 27, 2000, when the position of Supervising Civil Engineer was filled and appellant’s supervisory duties were subsumed into the new employee’s position.
III - JOB SPECIFICATIONS AND COMPENSATION
Senior Civil Engineer (Salary Range: $5087-6181)
A Senior Civil Engineer plans and directs difficult field and office civil engineering work. Following are typical tasks.
1. Plans the work and directs a staff of engineers in the design and preparation of drawings, specifications and estimates in connection with the construction or maintenance of a wide variety of engineering projects (buildings, bridges, roads, wharves, piers, dams, levees, ditches, retaining walls and similar structures);
2. Inspects existing water, sanitation, power and telephone systems and decides what improvements or modifications are necessary;
3. Passes on difficult problems, determines the methods of procedure and personally performs the more difficult phases of the work;
4. Supervises the preparation of maps, plans, charts or diagrams;
5. Supervises the maintenance of various engineering records and performs difficult engineering office work in connection with budget preparation, purchases, cost analyses, and progress reports;
6. Plans and directs field surveys and varied construction projects;
7. Inspects or directs the inspection of structures under construction or repair;
8. Makes detailed analyses of proposed projects for the economic as well as the practical engineering phases;
9. Analyzes and prepares descriptions of property;
10. Makes specialized technical studies and investigations and performs difficult research work;
11. Prepares complete and comprehensive reports; and
12. Makes recommendations on engineering problems.
Senior Civil Engineer is a supervisory class (S09). A supervisory employee is defined in Government Code section 3513(g) as “any individual, regardless of the job description or title, having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend this action, if, in connection with the foregoing, the exercise of this authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”
Supervising Civil Engineer, Resources Agency (Salary Range: $6174-6810)
A Supervising Civil Engineer plans, organizes and directs the work of a large civil engineering and related technical staff in the headquarters office of a department in the Resources Agency to provide technical direction to the department’s planning, field engineering, construction and maintenance staffs. Following are typical tasks.
1. Plans, organizes, directs and reviews the work of a large staff of engineering and architectural personnel in survey and acquisition activities, and in the design, construction and maintenance of water and sewer systems, buildings, structures and other sites;
2. Maintains administrative liaison with the Office of the State Architect projects and coordinates with Federal, State and local government agencies on land mapping and real property activities of the department;
3. Supervises preparation of major and minor capital outlay programs and related budgets for planning and design, surveying, acquisition, technical services, construction and grants;
4. Supervises the preparation and maintenance of engineering and graphic standards, procedures and training aids for department use;
5. Provides technical expertise at meetings of various governmental programs and standards of the department;
6. May direct a graphics unit in the development of administrative maps and graphic presentations for the department and the Resources Agency; and
7. Dictates correspondence and prepares reports.
Supervising Civil Engineer is a managerial class (M09). Government Code section 3513(e) defines a managerial employee as “any employee having significant responsibilities for formulating or administering agency or department policies and programs or administering an agency or department.”
The primary distinction between the two classifications is that the Supervising Civil Engineer manages a large staff and formulates and administers agency or departmental policies and programs; while a Senior Civil Engineer supervises by planning and directing the work of a engineering staff.
Senior Civil Engineer, Capital Outlay, Duty Statement (December 23, 1997)
The duty statement for the position of Senior Civil Engineer in the Capital Outlay Program stated appellant was to supervise the Capital Outlay Section in work involving “land use master planning and area development planning of recreational boating facilities; design and preparation of landscape architectural contract plans and specifications and construction inspection/management; preparation of environmental impact assessments, permit documents and preparation of landscape standards and criteria for boating facilities; and other related and required work.” His general job assignments and the apportioned time were as follows:
* (20%) Land use master planning, concept planning and project area layout feasibility investigations and reports;
* (15%) Project environmental permit analyses and document preparation work;
* (15%) Development of landscape and irrigation design standards for boating facilities;
* (30%) Preparation of landscape and irrigation construction contract plans, specifications and cost estimates for a variety of environmental zones and complexity; assist in project construction inspection; and
* (20%) Conduct project design and construction liaison with other agencies developing boating facilities on behalf of DBW.
IV - STATEMENT OF FACTS
Recreational boating facilities in State parks may be eligible for funding, design and construction assistance from DBW, as “Capital Outlay” items. Under provisions of the Harbors and Navigation Code and the Public Resources Code, DBW has provided assistance in the development of new boating facilities as well as the renovation and rehabilitation of items which have become worn or damaged beyond an economical routine maintenance effort under its Capital Outlay Program.
Types of State Park projects which have been funded, designed, and/or constructed under the Capital Outlay Program include boat launch ramp installations and repairs, boat ramp extensions, restrooms, courtesy docks, patrol docks, boating related camping/picnic day use facilities, shade ramadas, a wind warning light system, floating restrooms, parking facilities, a boat launch hoist, a personal watercraft facility, a non-motorized vessel facility, boat mooring facilities, security lighting, patrol boat storage, fishing jetty, finger piers and a wheelchair ramp. State Parks and State Recreational Areas that contain projects of this nature include Lake Perris, Silverwood Lake, Salton Sea, Picacho, Gaviota, Millerton Lake, San Luis Reservoir, Bethany Reservoir, Brannan Island, Lake Oroville, Folsom Lake, Candlestick Point, Angel Island, Bidwell-Sacramento River, Emerald Bay.
During the period at issue and for some time preceding that period, appellant was the Senior Civil Engineer in charge of the Capital Outlay Section at DBW. As such, he directly supervised the work of two Associate Civil Engineers, three Assistant Civil engineers, one Associate Landscape Architect, two Delineators and, typically, two Student Interns.
He worked under the supervision of the Division Chief, Boating Facilities Division. In March 2000, there were eight sections under Division Chief’s direct supervision: Project Development, Planning, Project Management, Aquatic Weed Headquarters, Aquatic Weed Field Unit, Oceanography and Beach Erosion and appellant’s section, Capital Outlay. The Project Development, Project Management and Capital Outlay sections were all supervised by Senior Civil Engineers.
Along with his original grievance, appellant submitted a revised duty statement claiming that for the prior three years, he was responsible for DBW statewide program administration from identification of program needs and project planning to project construction completion and under general direction, development of program accomplishment goals and implementation of standards, criteria and policies. He also claimed responsibility for the development of five and 10-year Capital Outlay Program plans, identification of infrastructure needs, development of program and project budgets and coordination of the Capital Outlay Program with other State and Federal Agencies and other stakeholders. He further described his responsibilities as follows:
* (15%) Assessing staffing needs to meet program objectives;
* (25%) Planning, directing and managing the Statewide Department of Water Resources Capital Outlay program and liaison with project recipients and other stakeholders;
* (30%) Organizing, directing and coordinating Budget Change Proposals (BCPs) from project planning through completion of construction with the Department of Finance, the Legislative Analyst and the Public Works Board;
* (10%) Project permitting, design and construction for major capital outlay projects with the Department of General Services or the Department of Water Resources;
* (5%) Project design supervision;
* (5%) Construction liaison and supervision; and
* (10%) Other duties as required (program liaison, reports, studies etc.).
In January 2001, appellant submitted supplemental information also claiming that between March 1998 and March 2000, as “Supervisor of Capital Outlay” he supervised his staff in the preparation of maps, chart, topographic and hydrographic drawings that were destined for use in the preliminary engineering studies, project reports, the annual Capital Outlay Budget proposals and construction contract drawings and he performed the following tasks, which were outside the scope of a Senior Civil Engineer.
1. Acquisition and survey;
2. Minor capital outlay program planning and project planning, design and construction;
3. Major capital outlay program planning and project formulation, budgeting, design, construction and liaison tasks;
4. Standards and procedures for graphics;
5. Budgeting;
6. Providing technical expertise at meetings and to governmental agencies;
7. Construction contract inspection and management standards and procedures;
8. Acting as committee member and/or representative of DBW; and
9. Performing other tasks.
V - STANDARD OF REVIEW AND PRELIMINARY DETERMINATION
In determining whether or not appellant’s assigned work was performed at the higher classification of a Supervising Civil Engineer, 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, which is measured as at least fifty percent (50%) of the time.
In its preliminary analysis, DPA determined that the duties appellant identified in his original grievance were consistent with those of a working supervisor. DPA determined that as a working supervisor, it was appellant’s responsibility to assess the needs of his program and staff. It was also his duty to plan and direct the program and to organize, direct and coordinate capital outlay from project planning. DPA also determined budget preparation is a typical task for a Senior Civil Engineer. Finally, DPA concluded that his liaison with project recipients were a task which fell outside the scope of a Senior Civil Engineer, however, it comprised less than 20% of his total work time. Therefore, DPA concluded, “based on staff’s review of the [appellant’s] duty statement he was performing the duties of a Senior Civil Engineer.”
In its preliminary analysis of the supplemental information, DPA also concluded that appellant was clearly performing the duties of a Senior Civil Engineer, because he was a working supervisor who planned and directed a medium sized staff consisting of lower level engineers and related technical staff in the design preparation of drawings, specifications and estimates in connection with the construction of boating facilities on State managed properties. In turn, staff found that while appellant emphasized his role as an administrative liaison between DBW and various State and federal agencies, this task did not constitute a majority of his total work time. Further, he did not function as a managerial employee because he played no role in formulating or administering department policies and programs.
Specific findings included the following:
Acquisition and Survey: Appellant’s supervision of staff when they conducted property surveys, and prepared and evaluated property maps, metes and bounds was encompassed within the class specification for a Senior Civil Engineer.
Minor Capital Outlay Program Planning and Project Planning, Design and Construction: Appellant’s tasks as a working supervisor clearly required him to “plan the work and direct a staff of engineers in the design and preparation of drawings, specifications and estimates in connection with the construction or maintenance of a wide variety of engineering projects....” He also was responsible for “determin[ing] methods of procedure, and personally perform[ing] the more difficult phases of the work.” Therefore, these tasks were within the specification for a Senior Civil Engineer.
Major Capital Outlay Program Planning and Project Formulation, Budgeting, Design Construction and Liaison: Appellant stated he formulated the program’s five-year plan and analyzed the 10-year infrastructure needs report from the general program magnitude and objective set by management. Also, “at the direction of management, he was the initial principal liaison person with the project sponsor/recipient in the initial evaluation of project feasibility and provided technical advice and assistance in the formulation of the projects....” Under his supervision, his staff prepared preliminary engineering feasibility reports, project budgets, and conducted project development liaison with the project sponsor, and government agencies. DPA determined that the work constituted the planning and direction of difficult field and office civil engineering work, which are duties within the scope of a Senior Civil Engineer. The administrative liaison duties with project sponsors, however, did not constitute a typical task for a Senior Civil Engineer, but was more typically a task of a Supervising Civil Engineer. The amount of time appellant devoted to this task “did not exceed 20 percent of his total work time.”
Standards and Procedures for Graphics: Appellant supervised the drafting unit, a duty which is within the scope of a Senior Civil Engineer.
Budgeting: Appellant directed and supervised the preparation of project budget documents and analyzed and reviewed budget needs for the program. Staff determined that these are typical tasks for a Senior Civil Engineer since they constitute difficult engineering work involving budget preparation and review for the program and staff, which appellant supervised.
Provides Technical Expertise at Meetings and to Governmental Agencies: Appellant provided technical expertise at project formulation meetings and drafting of project feasibility report meetings with project sponsors from State Parks and the United States Forest Service. These duties are typically within the scope of a Supervising Civil Engineer. However, they comprised less than 10% of appellant’s work time.
Construction Contract Inspection and Management Standards, Procedures: Appellant claimed that he developed and supervised the implementation of procedures for the “Minor Capital Outlay project design and construction project.” In performing the function, appellant supervised lower level professionals. He also claimed “he established and supervised the Major Capital Outlay Project Liaison procedure” between DBW and the Department of Water Resources and Department of General Services. As stated above, this liaison tasks constituted no more than 10% of his total work time.
Acting as Committee Member and/or Committees and Representative of DBW: Both appellant and his staff occasionally made presentations at various meetings. DPA determined that serving on a committee or making presentations is a typical task for a working supervisor including a Senior Civil Engineer.
Performing Other Tasks: Appellant “spent approximately ten percent of his time in the preparation of environmental documentation and project permits.” This task is encompassed within the class specification for Senior Civil Engineer. He also spent some time implementing the Affirmative Action Program, which is a task typically assigned to supervisors.
Based upon the above, DPA determined that appellant was not performing the full range and responsibilities allocated to the class of Supervising Civil Engineer, more than 50% of the time and his claim should be denied.
VI - APPELLANT’S REBUTTAL
Appellant prepared a written rebuttal to the Preliminary Determination. On May 16, 2001, he served his rebuttal upon DPA. On May 22, 2001, he also testified in rebuttal to the preliminary determination.
Basically, he claimed that the major difference between the Senior Civil Engineer and the Supervising Civil Engineer is that the Senior Civil Engineer performs “project engineering” while the Supervising Civil Engineer serves in a “broader program management capacity.” He claimed that his major tasks were program-oriented and he did not function as a “working supervisor” on any specific project and he did not personally prepare any environmental documents or permits. He claimed that while he was working under the Division Chief, he developed and administered a full service civil engineering office consisting of project engineering design standards and criteria, project cost estimating, construction plan and specification preparation standards and criteria, construction contract bidding and bid evaluation standards and criteria and construction contract inspection standards and criteria.
The Division Chief testified that he supervised appellant for 12 years and that appellant’s duties were consistent with those of a Senior Civil Engineer not a Supervising Civil Engineer. The Division Chief also testified that appellant’s duties in acting as a liaison with other agencies were overstated and comprised less than 20% of his actual work time.
Further, in March 2000, the Boating Facilities Division was reorganized and a new Supervising Civil Engineer position was created. The position oversees not only the $10,000,000 Capital Outlay Program but also the $40,000,000 to $50,000,000 Local Assistance Program. The position was created to provide better coordination between groups. There is now a better distribution of work by melding two programs under a single supervisor. Appellant continues to act as the Senior Civil Engineer in charge of the Capital Outlay Program. Another Senior Civil Engineer is in charge of the Local Assistance Program (which is a consolidation of two other prior programs). Appellant’s duties have changed to the extent that he no longer acts as liaison with the other agencies. Also, two Landscape Architects and a few Engineers now more diversely handle some of his project planning. Otherwise, appellant is responsible for the same tasks as previously performed.
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PURSUANT TO THE FOREGOING FINDINGS OF FACT THE ALJ MAKES THE FOLLOWING DETERMINATION OF ISSUES:
Government Code section 19818.18 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/she has performed duties outside the scope of his/her present classification. If the employee can establish satisfactorily that he/she has performed such duties, DPA has the responsibility for determining whether he/she is entitled to be reimbursed for duties performed, pursuant to Government Code section 19818.18. 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 performing the duties must be evaluated.
In this instance appellant proved that he performed some of the duties of a Supervising Civil Engineer between June 27, 1999, and March 27, 2000; but the majority of his work was encompassed in the specification for a Senior Civil Engineer. The areas in which he performed duties outside his class included maintaining administrative liaison with the Office of the State Architect projects and coordinating with Federal State and local government agencies on land mapping and real property activities of the department. Those duties, which comprised approximately 20-30% of his work time, have been reassigned to the current Supervising Civil Engineer.
Appellant’s other duties included planning and directing subordinate staff in the design and preparation of drawings, specifications and estimates in connection with the construction of boating facilities on State managed properties and determining the methods of procedures and performing the most difficult work. He supervised the preparation of maps, plans and charts and performed difficult engineering work in connection with budget preparation, purchases and construction analyses. He planned and directed field surveys and constructions projects. He inspected structures under construction and analyzed proposed projects for the economic and the practical engineering phases and prepared reports and made recommendations on engineering problems. Appellant still performs these duties.
Appellant did not formulate or administer agency or departmental policies and programs for DBW during the period at issue he did not perform other duties inconsistent with his classification as a Senior Civil Engineer.
Consequently, it is concluded appellant’s duties were consistent with that of a Senior Civil Engineer, and appellant’s out of class claim should be denied.
* * * * *
WHEREFORE IT IS DETERMINED
that the denial of out-of-class claim commencing June 27, 1999, and ending March 27, 2000, is denied.
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FOOTNOTES
1. 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 on June 27, 2000.
