Final Non-Precedential Decision Adopted: June 18, 2004

By: Michael T. Navarro, Director

This matter was heard before Wesley M. Travis, Jr., Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on April 15, 2004, at Sacramento, California.

Appellant was present and was represented by Gerri Conway, Administrative Hearing Specialist, Association of California State Supervisors (ACSS).

Michael P. Krug, Senior Staff Counsel, represented the California Department of Food and Agriculture (CDFA), Human Resources Branch, respondent.

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

Appellant filed an out-of-class grievance with the CDFA on September 15, 2003, which was denied. Appellant then filed an appeal with the Policy and Operations Division (POD) of the DPA on December 31, 2003. On January 23, 2004, DPA issued a preliminary determination denying the appeal. The ACSS filed a request (appeal) for a denial of out-of-class claim with the DPA on February 19, 2004.

Government Code sections 19815.4(e) and 19818.16 provide for the 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 services of the preliminary determination. Therefore, the appeal complies with the procedural requirements of Government Code sections 19815.4(e) and 19818.16.

Appellant claimed he has been performing the out-of-class duties of a Research Agricultural Chemist since 1993, while classified as an Agriculture Program Supervisor III (Chemistry Laboratory Services) (APS III) at the Center for Analytical Chemistry in the CDFA. Appellant requested he be reclassified as a Research Agricultural Chemist (RAC) and provided out-of-class compensation retroactive to September 15, 2002.

There are many similarities between appellant’s duties as an APS III and the duties of a RAC. However, the positions are distinguishable in that they provide different services and fulfill different purposes.

The California State Personnel Board (SPB) specifications for the APS III states incumbents work under general direction, and plan, organize and direct the work of staff administering complex agriculture programs as at least second level supervisors. Responsibilities include technical and staff services functions, and are characterized by either responsibility for a moderate, well-defined statewide program with diverse technical and professional staff, or responsibility for a statewide component of a scientific program, supervising a small professional staff and serving as a technical consultant. Incumbents in the specialty of Chemistry Laboratory Services are distinguished from other Agriculture Program Supervisors by being required to direct and coordinate statewide laboratory service activities for chemical analysis on agricultural food and feed products and for agricultural chemicals, residues, and contaminants.

The SPB specification for the RAC states the position works under general direction of the Branch Chief, Chemistry Laboratory Services, and directs the statewide research and development program of the Agricultural Chemistry Laboratory in the development and/or improvement of testing methodologies. The term “research” is further defined in the class specification to include the following:

1) Application of the scientific methods including definition of the nature and scope of problem, development of hypotheses for study, design and execution of experiments and investigations; analysis and interpretation of findings; and documentation and appropriate dissemination of results.

2) A requirement for the exercise of creativity and critical judgment in recognizing and selecting or revising appropriate methods for study and analysis, and in interpreting results to achieve maximum understanding of and applicability to the problem.

The primary difference between and APS III and a RAC is in the amount of time spent in Methods Development and Validation.

In determining whether or not appellant’s assigned work was performed at the higher classification of RAC, one must evaluate the kind and variety of duties performed and the relative amount of time spent performing those 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). As discussed below, appellant failed to prove by a preponderance of the evidence that he performed the full range of duties as a RAC on a regular and consistent basis at least 50% of the time.

On June 6, 2000, appellant signed a duty statement which describes his job

functions as follows: 35% Technical Program Manager which includes budget, funding, and purchasing, as well as reviewing data packages and representing CDFA in meetings to discuss program changes; 10% Administrative which includes assisting the branch chief in administrative duties, staffing and training, preparation of reports and correspondence; 5% Buildings which includes workspace needs and leasing; 10% Financial which includes budgets and billing; and, 40% Program Administration which includes planning, directing and coordinating laboratory services, coordinating services with other agencies, and serving as a technical consultant. The percentage of time spent in the area of Methods Development and Validation was not addressed.

More recently, on September 15, 2003, appellant explained his job functions in the grievance documents that he submitted to the DPA as follows: 50% Program Management; 10% Administrative; 15% Methods Development and Validation;15% Financial; and 10% Miscellaneous. (Emphases added).

In comparison, an RAC, Center for Analytical Chemistry, CDFA, credibly testified that 50% of his time is spent in Methods Development and Validation. (Emphases added). The RAC further testified that appellant’s position in this regard is dissimilar in that appellant’s position is program-directed as opposed to his, which is program-development. More specifically, appellant’s purpose in working with other scientists is to keep established programs running whereas the RAC develops new programs for implementation. In other words, the RAC explores and develops new activities in the field of research.

Some other distinctions pointed out by the RAC during his testimony are as follows:

1) The RAC’s laboratory has wider cross-discipline activities and emphasis in that he works not only as a chemist, but also utilizes microbiology and other disciplines, whereas appellant’s focus is mainly in the area of detecting pesticides on products sold to the public.

2) The RAC supervises research scientists, appellant does not.

3) The RAC is required to publish research findings in scientific literature. Appellant, as an APS III, is not. For example, the RAC researched, wrote, and developed proposals that were ultimately implemented as the Pesticide Data Program (PDP) and the Microbiological Data Program (MDP). The PDP was adopted as a nationwide program for data regarding safety of pesticides residues. The MDP has also been adopted as a nationwide program which tracts natural occurring food-borne pathogens in and on produce for use in the evaluation of dietary risk assessments to ensure the safety of food for the most at-risk populations.

Appellant testified that he is not required to publish his work. He further testified

that, although he hasn’t published, his staff has and that he has produced one publication as a chemist that will be published next month. However, appellant presented no evidence at hearing to corroborate these claims.

The Branch Chief for the Center for Analytical Chemistry, appellant’s and the RAC’s supervisor, testified that the major distinction between the two positions is the amount of research assigned and expected. The Branch Chief testified further that although there are some similarities between the positions in that both manage chemistry laboratories and both engage in or direct some degree of research, the primary purpose of the RAC position is conducting and developing new research whereas such research and development is only incidental to appellant’s position.

The RAC and the Branch Chief’s testimony regarding job duties are consistent with the SPB APS and RAC specifications. Moreover, the Branch Chief testified that appellant does not have the minimal educational requirements for the RAC position. The SPB Specifications for the position requires a Doctoral Degree in Chemistry or Agricultural Chemistry or, in substitution for a doctoral degree, a minimum of three years experience in the pesticide chemistry discipline in a class equivalent in responsibility to an Associate Pesticide Review Scientist (APRS). Although appellant has a Master’s degree in chemistry and twenty-six years of experience in the field, the Branch Chief pointed out that appellant still lacks the minimal educational requirements because appellant’s many years of experience does not include the minimum three years experience in the area of the pesticide chemistry discipline defined in the SPB specifications which may be substituted for the required Doctoral Degree.

 

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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, for duties performed pursuant to Government Code section 19818.16. 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 failed to prove by a preponderance of the evidence that he has performed out-of-class duties as a RAC on a regular and consistent basis at least 50% of the time. Although there are many similarities between appellant’s duties as an APS III and the duties of a RAC, the positions are sufficiently distinctive in that they provide different services, fulfill different purposes and have different minimum educational requirements. The primary difference between and APS III and a RAC is in the amount of time spent in Methods Development and Validation research whereas only 15% of appellant’s time as an APS III is spent in this area.

Appellant also lacks the minimum educational requirements in that he neither possesses a Doctoral Degree in Chemistry or Agricultural Chemistry nor does he possess the necessary experience that may be substituted for a Doctoral Degree.

 

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that the appeal from Denial of Out-of-Class Claim from the position of Agriculture Program Supervisor III (Chemistry Laboratory Services) effective February 19, 2004, is denied.