Final Non-Precedential Decision Adopted: August 22, 2006
By: David A. Gilb, Director
DECISION
I - STATEMENT OF THE CASE
A hearing in this case was held on August 8, 2006 in Riverside, California. Appellant, was present and was represented by Nellie D. Lynn, Labor Relations Representative, Association of California State Supervisors (ACSS). Norma Fong-Mori, Business Program Administrator, represented the California Department of Corrections and Rehabilitation (CDCR), respondent. Julie Chambers, Staff Personnel Program Analyst, represented the Department of Personnel Administration (DPA).
Appellant filed a grievance for out-of-class pay and certification of out-of-class experience with the CDCR’s Southern Youth Correctional Reception Center and Clinic (SYCRCC) on November 2, 2005. CDCR denied appellant’s grievance for out-of-class pay and experience on December 21, 2005. It did, however, grant appellant’s request that the film liaison duties be reassigned.
Appellant filed an appeal of CDCR’s denial of out-of-class pay with DPA on March 9, 2006. DPA issued a preliminary determination denying the grievance on May 12, 2006.
- Appellant appealed DPA’s preliminary denial on May 23, 2006. DPA has jurisdiction to hear the appeal of the denial of appellant’s request for out-of-class pay (Government Code section 19818.16.) DPA does not have jurisdiction over appellant’s request for certification of out-of-class experience. (Cal. Code Regs. tit. 2, 212.)
II - ISSUES
Appellant argued he worked out-of-class from February 1 through December 6, 2005 when he performed film liaison duties. He contended CDCR’s operating policy required the film liaison duties be assigned to a Public Information Officer (PIO). He argued the PIO must be a Lieutenant or Parole Agent III. Therefore, he contended he should be paid as a Lieutenant or Parole Agent III for the period he acted as the film liaison.
CDCR denied appellant’s grievance for out-of-class pay because appellant’s assignment as a film liaison was a “secondary assignment” to his regular duties as a Food Manager. CDCR also could not verify the amount of time appellant alleged he spent performing out-of-class duties.
DPA denied appellant’s out-of-class claim because: (1) The specific duties cited by appellant were not the “full range of duties” of any civil service classification, and (2) CDCR policy is not the determining factor in granting out-of-class pay.
The only issue to be decided is: Did appellant perform the full range of duties of a Lieutenant, Parole Agent III or any other existing civil service classification for at least 51% of his work time from February 1 through December 6, 2005.
III - FINDINGS OF FACT
1. At the time appellant filed his out-of-class claim, he was employed in the classification of Food Manager (Correctional Facility) in CDCR’s Division of Juvenile Justice’s SYCRCC in Norwalk, California. He was not a peace officer.
2. Prior to working at SYCRCC, appellant worked at the Department of California Youth Authority’s (CYA) Fred C. Nelles Youth Correctional Facility (FCNYCF). The institution housed juveniles (wards).
3. The FCNYCF closed on June 30, 2004.
4. The California movie industry used the FCNYCF as a filming location both before and after it closed. After FCNYCF closed, filming activity increased.
5. Between February 1 and December 6, 2005, 25 film companies used FCNYCF as a film location.
6. The CYA and California Department of Corrections (CDC) consolidated on July 1, 2005. The two entities became CDCR.
7. Before consolidation, the CYA assigned the film liaison duty to employees in a variety of classifications including the classifications of office technician, business program administrator, stationary engineer, and volunteer program manager. The film liaison duty was always a secondary assignment in addition to an employee’s regular duties.
8. Before consolidation, the CDC had an operating policy that required each facility and parole region to appoint a PIO. The policy was set forth in CDC’s Department Operating Manual (DOM).
9. The CDC’s DOM Article 13, (“Public Information”) Section 13010.4 required a facility PIO to be a Warden’s Administrative Assistant, Lieutenant or equivalent. A parole region PIO had to be a Region Parole Administrator (RPA) or a Deputy Region Parole Administrator (DRPA). One of the tasks assigned to the PIO was the film liaison duties. The film liaison duties of CDC’s PIO were set forth in DOM Article 17, “Motion Pictures, Radio, and Television.”
10. When the CDC and CYA consolidated, the CDCR did not change CDC’s DOM Article 13 or Article 17.
11. The Superintendent of SYCRCC assigned appellant the FCNYCF film liaison duties on or about February 2, 2005. This is before CDC and CYA consolidated.
12. Appellant continued to perform his Food Manager duties from February 2, through December 6, 2005. The film liaison duties were a secondary assignment in addition to his Food Manager duties.
13. Appellant performed film liaison duties that were described in CDC’s DOM Article 17. These duties included:
* Receiving contact from the California Film Commission (CFC) indicating a film company was interested in filming at FCNYCF;
* Contacting the film company to arrange a FCNYCF tour which was usually conducted on a Wednesday or Thursday;
* Verifying the film company had a valid permit, insurance coverage and no history of past complaints;
* Determining the production company’s filming, location needs, hours of facility use, number of people, security coverage, structural modifications, and the type and quantity of production equipment on premises;
* Providing the film crew with a basic orientation class, communication ground rules, costs, and historical and operational information as required;
* Notifying the appropriate CDCR employees of required security personnel and equipment;
* Completing a Location Agreement and forwarding it to the CDCR Communications Office;
* Preparing a “Film Crew Expense Report” that served as a basis for billing the film company; and
* Serving as a liaison between the film crew and the State on day-to-day operations.
14. Appellant’s supervisor, a Business Program Administrator, performed the FCNYCF film liaison duties immediately before the duties were assigned to the appellant. She gave appellant an orientation to the film liaison duties. During the relevant period, appellant’s supervisor continued to oversee appellant in the performance of the film liaison duties and she continued to be directly notified of various filming projects, scheduling and some ad hoc problems.
15. Appellant admitted he did not provide security for the FCNYCF filming activities.
16. Appellant spent approximately 25 hours per week performing film liaison duties.
17. Although appellant’s supervisor asked him to provide verification of the time he spent performing film liaison duties, he did not provide the requested information.
18. DPA analyzed the Lieutenant, Parole Agent III, Administrative Assistant, Information Officer, and Security Guard classifications to determine if appellant could be granted out-of-class pay.
IV - STATE PERSONNEL BOARD (SPB) SPECIFICATIONS/COMPENSATION
1. Food Manager (Correctional Facility)
“Under general direction, in a State correctional facility in the Department of Corrections or Department of the Youth Authority, is responsible for the overall management and supervision of an organized food program on a 24-hour basis, plans, directs and coordinates all food service activities; maintains order and supervises the conduct of inmates, wards, residents, or patients; protects and maintains the safety of persons and property; and does other related work.”
The salary range for the classification was $4,353 to $5,292.
2. Lieutenant ,Youth Authority
“Under direction, in the Department of the Youth Authority: (1) in a facility, reception center/clinic, or camp, assists in planning, organizing and directing the security and safety-related activities of the facility; provides direct supervision to first-line supervisors and security personnel; provides function supervision to program personnel in security-related matters; serves as a duty officer; or serves as the scheduling officer with responsibility for scheduling living units and security staff; or serves as the Disciplinary Decision-Making (DDMS) investigator; . . . “
The incumbent is a peace officer and typical tasks include responsibility for custody and control duties in a youth authority facility occupied by wards.
It was undisputed the Lieutenant classification was a higher classification than Food Manager. (DPA Rule 599.810 (a) (3).)
3. Parole Agent III, Youth Authority
“Under direction, either (1) to have charge of a field parole unit in the Division of Parole and Community Services, Youth Authority; or a classification and casework section of a large Youth Authority institution; or (2) to supervise a major specialized phase of the Youth Authority parole program; or (3) to relieve a high level administrator of details related to the operation of parole and community services programs within an assigned area; and to do other related work.”
The incumbent is a peace officer and typical tasks include involvement with parole program goals and responsibilities and involvement in major areas of Parole and Community Services programs.
It was undisputed the Parole Agent III classification was a higher classification than Food Manager.
4. Administrative Assistant II
“Under general direction, to assist an administrator by performing varied administrative duties of a high degree of responsibility; and to do other related work.”
There was no evidence whether or not the Administrative Assistant classification was or was not higher than the Food Manger classification.
5. Information Officer
“Under direction, to perform the more difficult professional and technical tasks associated with the conduct of a comprehensive program to inform the public of the activities and objectives of a State agency; and to do other related work.”
There was no evidence whether or not the Information Officer was or was not a higher classification than the Food Manager.
6. Motion Picture Production Analyst
“Under general direction, to assist in the development and implementation of programs and policies of the Motion Picture Council; to promote the production of motion pictures and television films in the State of California; to provide film locations services to the motion picture and television film industries, and to do other related work.”
It was undisputed that the Motion Picture Production Analyst classification was lower than that of Food Manager.
“Under direction, during an assigned shift, to guard and protect State property; and to do other related work.”
It was undisputed the security guard classification is a lower classification than that of Food Manager.
VI - PRINCIPLES OF LAW
1. The appellant bears the burden of proof and the standard of proof is the preponderance of the evidence. (Aguila v. Atlantic Richfield (2001) 25 Cal. 4th 826.)
2. Government Code section 19818.16 provides DPA with "the authority to review employee claims for additional reimbursement for the performance of duties outside the scope of their present classification” and with authority to authorize additional reimburse for those duties “for a period no greater than one year preceding the filing of a claim.”
3. California Code of Regulations, title 2, (DPA Rule) section 599.810 (a)(2) defines “out-of-class” work as “more than 50 percent of the time, performing the full range of duties and responsibilities allocated to an existing class and not allocated to the class in which the person has a current, legal appointment.”
4. DPA Rule 599.810 (a) (3) defines a higher classification as “one with a salary range maximum that is any amount higher than the salary range maximum of the classification to which the employee is appointed.”
- 5. The SPB creates and adjusts classes of positions in the State’s Personnel Classification Plan. The classification plan includes a definition outlining the scope of the duties and responsibilities for each class of positions (Gov. Code 18800).
- 6. No state agency shall issue, utilize, enforce, or attempt to enforce any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, which is a regulation as defined in Section 11342.600, unless the guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule has been adopted as a regulation and filed with the Secretary of State pursuant to this chapter. (Gov. Code 11340.5.)
7. “[T]o the extent any of the contents of the statement of policy or procedure depart from, or embellish upon, express statutory authorization and language, the agency will need to promulgate regulations.” (Morning Star Co. v. State Bd. Of Equalization (2006) 38 Cal. 4th 324, 336.)
- 8. It is a well recognized ruled that a regulation which has not been adopted in substantial compliance with the APA is void. (Johnston v. Department of Personnel Administration (1987), 191 Cal.App.3d 1218, 1225 citing Gov. Code 11350.5.)
- 9. The SPB has jurisdiction to decide “merit” issues including verification of out-of-class experience (Cal. Const. art. VII 1, 3; Cal. Code Regs., tit. 2, 212).
VII - ANALYSIS
Appellant spent over 50% of his time performing film liaison duties at the closed FCNYCF from February 2 to December 6, 2005. These duties were outside those of his Food Manager classification. However, this alone does not make him eligible to receive out-of-class pay.
In order to receive out-of-class pay, an employee must perform the full range of duties of an existing classification. (DPA Rule 599.810 (a)(2).)
Appellant did not perform the full range of duties of the Parole Agent III. Appellant was assigned to a youth correctional institution and acted as a film liaison at a closed youth correctional institution. Appellant was not affiliated in any way with a parole region or a parole community program. He did not “relieve a high level administrator of details related to the operation of parole and community services programs.” Therefore, he was not eligible for out-of-class pay as a Parole Agent III.
Appellant did not perform the full range of duties of a Lieutenant (Youth Authority). By his own admission he was not responsible for security at FCNYCF. Correctional Officers were assigned through SYCRCC’s Watch Commander. Appellant’s sole responsibility was providing the film crew’s work schedule and facility use to custodial personnel so they could direct the correctional officers. He did not plan, organize or direct the safety and safety-related activities of an active youth facility and he did not provide direct supervision to program personnel in security-related matters. Therefore, appellant was not eligible for out-of-class pay as a Lieutenant.
The film liaison duties performed by appellant do not represent the full range of duties in any existing State classification.
- Appellant’s reliance on CDCR’s DOM to support his appeal for out-of-class pay is misplaced. First, out-of-class pay for excluded employees is governed by DPA Rule 599.810, Government Code section 19818.16, and SPB classifications (Gov. Code 18800) – not by a State department’s operating policy. Second, CDCR’s DOM has no legal force or effect because it is not a legally promulgated regulation. (Gov. Code 11350.5; Morning Star Co. v. State Personnel Board; (supra), 38 Cal. 4th 324, 336; Johnston v. Department of Personnel Administration (supra), 191 Cal. App. 3d 1218, 1225.) Third, CDCR’s DOM outlined the complete duties of a PIO and the film liaison duties represented only one part of a much larger group of duties assigned to the PIO. Appellant performed only the film liaison portion of the PIO’s numerous and varied responsibilities outlined in the DOM. Furthermore, appellant’s assignment to the film liaison duties occurred prior to CYA and CDC’s consolidation and therefore, the assignment was not initially governed by CDC’s operating policies.
Although appellant performed the film liaison duties well and he received accolades for his performance, he did not perform the full range of duties of an existing State classification as required by DPA Rule 599.810.
VIII - Conclusion
Appellant performed duties outside of his Food Manager classification over 50% of the time between February 2 and December 6, 2005. However, these duties do not represent the full range of duties of any existing State classification. Appellant cannot be awarded out-of-class pay.
Order
Appellant’s appeal of denial of his out-of-class claim effective May 12, 2006 is denied.
