DPA Case Number 03-H-0047, 03-B-0048, 03-D-0049 - Denial of Out-of-Class Claim

Final Non-Precedential Decision Adopted: June 22, 2004

By: Michael T. Navarro, Director

These matters were consolidated and heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on July 22, 2003, at San Diego, California.

Appellants were present and represented themselves.

Lieutenant Ray Marrero, Employee Relations Officer, represented the Department of Corrections (CDC), respondent.

The Department of Personnel Administration (DPA) was not represented at hearing and no witnesses appeared on its behalf.

Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

The Chief Deputy Administrator filed an out-of-class grievance on January 17, 2003. CDC supported his grievance at the first two levels of review. CDC forwarded the grievance to DPA and requested it be granted on March 18, 2003. DPA issued a preliminary determination denying the grievance on April 16, 2003. The Chief Deputy Administrator appealed this denial on May 14, 2003.

The Correctional Administrator and the Facility Captain both filed out-of-class grievances on January 16, 2003. CDC also supported these two grievances at the first two levels of review. CDC forwarded the grievances to DPA and requested they be granted on March 19, 2003. DPA issued preliminary determinations denying the grievances on April 17, 2003. The Correctional Administrator and the Facility Captain appealed the preliminary denials on May 9, 2003.

These appeals comply with the procedural requirements of Government Code section 19818.16.1

The Chief Deputy Administrator claimed he worked out-of-class as the Acting Warden at Donovan from July 1, 1999, through January 14, 2002. As a remedy for out-of-class work, he requested compensation in the amount of $29,616, which was the difference between his salary as Chief Deputy Administrator and the Warden’s salary for the approximately two and a half years he performed the duties of Warden.

The Correctional Administrator claimed she worked out-of-class at Donovan as the Chief Deputy Administrator from August 1, 1999, through January 11, 2002. She requested compensation in the amount of $14,769, which was the difference between her salary as a Correctional Administrator and that of the Chief Deputy Administrator for the approximately two years and five months she performed the duties of the Chief Deputy.

The Facility Captain claimed he worked out-of-class as a Correctional Administrator at Donovan from April 17, 2000, through January 16, 2002. He requested compensation in the amount of $8,409, which was the difference in his salary as Facility Captain and that of Correctional Administrator for the approximately one year and eight months he performed the duties of Correctional Administrator.2

The process of obtaining approval for CEA and exempt appointments requires that all proposed appointees must be approved by the Governor’s office. Appointment as a Warden requires Senate confirmation. (Penal Code section 6050.) Over the years, the length of time required to complete these processes has expanded. The circumstances in this case are unique in that the process became extraordinarily lengthy and the employees involved were not ultimately appointed to the classes in which they worked out of class.

The Warden at Donovan retired in 1999. CDC’s Director recommended the Chief Deputy Administrator be appointed as Donovan’s new Warden. CDC assigned the Chief Deputy Administrator to perform the duties of the Warden while he awaited the Governor’s approval and the senate’s confirmation. Beginning on July 1, 1999, the Chief Deputy Administrator performed the duties of Warden for 30 months. He was not permanently appointed to the position of Warden.

As a result of the Chief Deputy Administrator’s assignment to perform the duties of the Warden, CDC assigned the duties of his CEA position, Chief Deputy Administrator, Correctional Program, to the Correctional Administrator. Beginning August 1, 1999, the Correctional Administrator performed the duties as the Chief Deputy Administrator at Donovan for approximately 29 months. She was not permanently appointed to this position.

After the Correctional Administrator was assigned to perform the duties of the Chief Deputy Administrator, the Facility Captain was assigned to perform the duties of Correctional Administrator, the position to which the Correctional Administrator was formally appointed. Beginning on April 17, 2000, the Facility Captain performed these duties for over 20 months. He was not permanently appointed to this position.

On May 2, 2001, DPA issued Personnel Management Liaisons Memorandum 2001-016 (PML). This PML declared managerial employees ineligible for out-of-class pay. DPA based its position on DPA Rule 599.810 which addresses out-of-class assignments and compensation for supervisory and confidential employees but excludes managerial employees. The PML further asserted that “Absent statutory or regulatory provisions authorizing managerial out-of-class assignments,” DPA would not approve out-of-class compensation for managerial employees. The PML also stated:

“Managerial classifications describe positions that have broader responsibilities than those which are assigned to supervisory and represented employees. As members of the management team, employees in managerial classes can reasonably be expected to perform any task necessary to ensure that a department meets its mission and goals. For a limited period of time, a manager can be expected to fulfill a wide range of assignments not normally part of his/her normal assignment and classification. Consequently, ‘acting assignments’ of limited duration in any departmental programs should be considered a normal part of the managerial class concept for which no compensation should be promised or expected.”

On CDC’s advice, appellants initially filed claims with the Board of Control for out-of-class compensation. The date these were filed is unknown. DPA recommended denial of the out-of-class claims at the Board of Control and advised appellants to file grievances. Appellants filed their grievances with DPA in January 2003 and they were subsequently denied.

The duties and the length of time appellants spent performing these duties was undisputed by the parties. It was also undisputed that the class specifications for Chief Deputy Administrator, Correctional Administrator, and Facility Captain anticipate and include the performance of some out-of-class work at a higher level. The issue in this circumstance is whether or not the managerial employees in this case should be compensated for performing assigned out-of-class duties for periods extending approximately 20 to 30 months.

Appellants contended they performed the work of the higher class 100% of the time while other employees were designated to perform the duties of the lower class in which the appellants held appointments. Appellants argued that although their job specifications anticipate performance of higher class work for a limited amount of time, the extended period they were required to perform such duties in this case falls outside the specification and outside the “limited duration” addressed in DPA’s PML. Appellants also argued they relied on DPA’s practice prior to May 2, 2001 of approving out-of-class pay for certain managerial employees. According to appellants and CDC, DPA granted out-of-class pay to CDC CEA employees with a class code of 7500 for periods ranging from 3 to 24 months pursuant to “Pay Differential 71.” They further contended that failure to approve their claims resulted in an inequity that allows some managerial employees to be compensated for out-of-class work while others are automatically foreclosed from such compensation. The appellants in this case did not hold positions with a 7500 class code.

CDC concurred with appellants’ arguments. At hearing, it also contended it was unable to implement the alternate methods for avoiding out-of-class work which were suggested in DPA’s PML. The Chief Deputy Director of Field Operations testified it was unfeasible to rotate Wardens between prisons or to rotate duties because of the level of stability and consistency required in managing the prison environment. The Chief Deputy Director also testified that because CDC lacked authority to appoint the Warden and CEA employees, CDC could not formally appoint the appellants to the higher class position on any type of temporary basis because the positions were not vacant (see Government Code section 19050.8). CDC also argued that DPA’s change in policy reflected in the May 2, 2001 PML should not be applied retroactively. Both the Chief Deputy Director and Donovan’s Associate Warden, Business Services, testified that this case represented a unique situation and the longest period of time that any CDC individuals have been required to work out of class without appointment or additional compensation.

DPA denied appellants’ grievances and CDC’s request to compensate appellants for out-of-class work. DPA contended appellants did not work out of class because language in each of the individual specifications included, subsumed, and anticipated work in a higher classification. The class specification for the Chief Deputy Administrator, Correctional Program, CEA states the incumbent “. . . represents the Warden in policy and decision-making meetings within the institution, the department, and with other agencies and organizations; acts as the Warden in his/her absence.” The class specification for the Correctional Administrator, CDC, states, “During his/her tenure in this class, each incumbent will be expected to perform in any institutional position.” The class specification for Facility Captain, Correctional Institution, also states, “During his/her tenure in this class, each incumbent will be expected to perform in any institutional position.”

DPA also denied the out-of-class claims on the basis of its May 2, 2001 PML, stating that there were no statutory or regulatory provisions authorizing managerial out-of-class assignments.

 

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Section 19815.4 mandates that DPA administer and enforce the laws pertaining to personnel and gives DPA the authority to “Formulate, adopt, amend, or repeal rules, regulations, and general policies affecting the purposes, responsibilities, and jurisdiction of the department and which are consistent with the law and necessary for personnel administration.”

Section 19818.16 gives DPA “the authority to review employee claims for additional reimbursement for the performance of duties outside the scope of their present classification and to authorize additional reimbursement for those duties.”

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/she 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.

This case presents unique circumstances. During the period appellants claimed out-of-class reimbursement, CDC relieved them of the duties of their appointed positions and classifications and directed appellants to perform the duties of the position in the higher classification 100% of the time. To ensure appellants could perform out of class in the higher level positions 100% of the time, CDC directed other employees to temporarily “act” in the appellants’ stead in appellants’ appointed positions and classifications.

While the class specifications for appellants’ appointed positions clearly allow and anticipate performance of duties in various institutional positions, the language in the specifications does not anticipate that the incumbent will be replaced by another employee and assigned to perform the duties of a higher classification 100% of the time for the extended time periods involved in this case. The class specification for Chief Deputy Administrator anticipates the incumbent will act as the Warden in the Warden’s absence. This pre-supposes there is an appointed Warden who may be absent. The class specifications for Correctional Administrator and Facility Captain condition the incumbent’s performance of other institutional duties on “tenure in this class.” By entirely divesting appellants of the duties of their appointed class and position for an extended period of time, CDC constructively removed or at least suspended appellants from their appointed class. CDC did not provide and the ALJ could not find any statute, regulation, or case law that authorized CDC to take such independent unilateral action.

However, DPA’s preliminary finding that managerial employees are not statutorily authorized to receive compensation for out-of-class assignments is also statutorily infirm. It is at odds with the language in Section 19818.16 which does not exclude managerial employees. Although managerial employees are exempt from the parameters of DPA Rule 599.810, there is no statutory or regulatory provision which prohibits managerial employees from receiving out-of-class compensation consistent with the language of Section 19818.16.

Moreover, the language in DPA’s May 2, 2001 PML supports the finding that the extended out-of-class assignments in this case are outside the scope of the duties described and anticipated in the relevant specifications. The PML references “a limited period of time,” “assignments not normally part of his/her normal assignment and classification” and the adoption of alternative means for compensating managerial employees “[i]f the duties are expected to exist for an extended period of time.” Because of the extended time involved in this case, CDC’s lack of vacancies, and CDC’s use of “acting” personnel, appellants’ normal assignments became the duties of the higher class. Thus, appellants proved they worked out of class for periods ranging from 20 to 30 months.

 

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that the appeal from the denial of out-of-class claim effective April 16, 2003 is granted with modification. While appellant should not be penalized for respondent’s personnel practices or for his detrimental reliance on respondent’s advice to file an out-of-class claim with the Board of Control, the language of Section 19818.16 restricts payment of out-of-class compensation to “no greater than one year preceding the filing of a claim.” Therefore, appellant is granted the difference in the rate of pay between that of the Warden’s class and his appointed class for a period of one year preceding the date he filed his claim with the Board of Control.

The appeal from denial of out-of-class claim effective April 17, 2003 is granted with modification. Based on the same considerations set forth above, appellant is granted the difference in the rate of pay between that of Deputy Chief Administrator, Correctional Programs and her appointed classification for a period of one year preceding the date she filed her out-of-class claim with the Board of Control.

The appeal from denial of out-of-class claim effective April 17, 2003 is granted with modification. Based on the same considerations listed above, appellant is granted the difference in the rate of pay between that of Correctional Administrator and his appointed classification for a period of one year preceding the date he filed his out-of-class claim with the Board of Control.

 

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1. All references are to the Government Code unless otherwise indicated.

2. It was undisputed that the Warden is a higher position than that of the Chief Deputy Administrator; that the Chief Deputy Administrator is a higher classification than that of Correctional Administrator; and that the Correctional Administrator is a higher classification than that of a Facility Captain.