Final Non-Precedential Decision Adopted: January 10, 2005

By: Michael T. Navarro, Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on December 9, 2004, at Sacramento, California.

Appellant was present and represented herself.

George VeVea, Correctional Lieutenant, represented the California Department of Corrections (CDC), respondent.

Margie Imai, Staff Personnel Program Analyst, Policy and Operation Division, represented DPA.

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

The appellant filed a grievance on March 24, 2004 alleging that she worked out of class since August 2002. On July 21, 2004, respondent CDC sent DPA a recommendation to approve out-of-class pay from November 1, 2003 through March 31, 2004. On September 7, 2004, DPA issued a preliminary determination approving out-of-class pay for the period January 29, 2004 through March 31, 2004. Appellant filed an appeal of DPA’s preliminary determination on September 22, 2004. The appeal complies with the procedural requirements of Government Code section 19818.16.

Appellant alleged she worked out of class from August 5, 2002 through April 2004. She performed the same duties throughout this period. In her March 24, 2004 grievance, she alleged she worked out of her classification of SSM II as a SSM III for the period August 5, 2002 through August 31, 2003 while she performed the duties of the Chief of the Selection and Standards Branch which was classified as a Correctional Administrator (CA). Appellant was already granted out-of-class pay as an SSM III for August 30, 2002 to August 30, 2003. She sought additional compensation for the period of August 5, 2002 though August 30, 2002 at the SSM III level.

Appellant also alleged she worked out of her classification of SSM III as a CEA II when she performed the duties of the Chief/Assistant Deputy Director of the Selection and Standards Branch from June 1, 2003 though March 31, 2004. DPA reclassified the Chief position from a CA to an Assistant Deputy Director (ADD) CEA II, effective October 31, 2003.

At hearing, appellant amended her original request for remedy. Appellant is now seeking out-of-class pay at the CEA II level since August 5, 2002 when she first began performing duties of the Chief, Selection and Standards Branch as a SSM II. She contended that because she worked out-of-class performing the same duties for a total of 19 months, she should be compensated at the CEA II level for a total of 14 months. In requesting the 14 months of compensation, appellant applied DPA’s policy that managerial employees may serve out of class without compensation for 90 days and the fact that in its initial response, DPA preliminarily agreed to compensate her for two months.

Appellant further contends that she should be compensated for working out of class longer than the one-year period provided by statute because DPA’s position regarding managerial out-of-class pay was undefined; she was unaware of the statutory one-year limitation on collecting out-of-class pay; and CDC failed to inform her of the statutory limitation.

Neither CDC nor DPA contested appellant’s claim that she performed the duties of either a CA or a CEA II for the period August 5, 2002 through March 31, 2004.

Appellant testified that CDC continuously worked with her and DPA in an effort to pay her for the duties she performed. She testified CDC initially removed any “functions” from the original CA position that required peace officer status in August 2002 so that she could assume the duties of the position even though she was not a peace officer. CDC initiated reclassification of the position from a SSM II to a SSM III. CDC previously initiated approval of out-of-class pay for appellant for the statutorily authorized one-year period from August 5, 2002 through August 30, 2003. CDC also worked with DPA to get the CA position reallocated from a peace officer position to the ADD, CEA II position. CDC supports payment of appellant’s out of class request for the period of November 1, 2003 through March 31, 2004.

DPA preliminarily approved payment of appellant’s out-of-class claim for the period of January 29, 2004 through March 31, 2004. DPA’s position is based on its policy in its Personnel Management Liaison Memorandum (PML) 2004-02 which was issued June 23, 2004. That policy provides, among other things, that compensation for out-of-class assignments for managerial employees commences on the 91st day because managerial employees are expected to fulfill a wide range of assignments not normally part of the management position without additional compensation for a limited period of time. Appellant formally accepted the CEA II out-of-class assignment on October 31, 2003. Thus, applying its policy that managerial employees are eligible for out-of-class pay on the 91st day, DPA preliminarily determined appellant was entitled to reimbursement beginning January 29, 2004 and continuing through March 31, 2004, the last day she worked as a SSM III before her promotion to a CEA II.

Appellant’s appeal consists of a claim that she worked outside of two different classifications, SSM II and SSM III, performing first the duties of a CA and then, the duties of a CEA II.

Although appellant filed her grievance on March 24, 2004, she asks DPA to consider her work out of class since August 5, 2002 and she requests compensation at the CEA II level since that time. She claims good cause for not filing a grievance prior to March 24, 2004 because she wanted to amicably resolve the issue with CDC without filing a grievance. She also contends that CDC had given her reason to believe that the CA position would be reclassified to the CEA level effective May 2003. She argues that DPA’s policy of paying out of class was in flux during this period thus CDC was not able to definitively advise her of her pay status. She also argues CDC failed to inform her that she could potentially receive retroactive payment for only one year.

Appellant’s claim for compensation at the CEA level since August 5, 2002 is denied. Government Code section 19818.16 limits the award of out-of-class compensation to one year preceding the filing of the claim. Appellant’s grievance was filed on March 24, 2004. Thus, the period for which she could be potentially compensated is retroactive to March 24, 2003. The clear language of the statute does not provide for any exceptions to the one-year award.

In addition appellant was informed by CDC that DPA’s policy regarding payment of out-of-class compensation to managerial employees was uncertain during this period. There was no evidence that she in any way objected to performing the duties of the higher classification at any time. Appellant made a conscious decision to continue to work out of class and to work with CDC rather than file a grievance at an earlier time. Appellant knowingly assumed the risk that she would not be paid for the entire period she worked out of class.

Furthermore, appellant failed to prove CDC had any legal obligation to inform her that she was statutorily restricted from receiving retroactive out-of-class compensation for more than one year. She also failed to prove that even if she would have been informed, she would not have willingly performed the higher level duties in anticipation that she would be promoted to the newly created CEA II position.

Therefore, appellant’s claim that she be compensated at the CEA II level prior to March 24, 2003 is denied.

In regard to the statutorily relevant period of March 24, 2003 through March 24, 2004, it was undisputed that appellant consistently performed the same duties. She performed the duties of the CA class while she was classified as a SSM II from March 24, 2003 until September 1, 2003. On September 1, 2003 she was promoted to a SSM III, a management position. From September 1, 2003 until October 31, 2003, she continued to perform the duties of the CA class while classified as an SSM III. From October 31, 2003 through March 24, 2004, she performed the duties of the ADD while classified as an SSM III.

Appellant has previously been compensated for working out of class from August 30, 2002 through August 30, 2003. She accepted out-of-class pay at the SSM III level for this period. By accepting this compensation, appellant settled her claim for the period and is precluded from now claiming additional compensation by retroactively applying a reallocation which was not effective until October 31, 2003.

Government Code section 19815.4(d) gives DPA the authority to “Formulate, adopt, amend, or repeal rules, regulations, and general policies affecting the purpose, responsibilities, and jurisdiction of the department [DPA] and which are consistent with the law and necessary for personnel administration.” Government Code section 19818.16 states in relevant part: “...the department [DPA] shall have 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.” Consistent with this statutory authority, DPA adopted the policy in PML 2004-02 which provides in relevant part that compensation for managerial employees commences when the assignment exceeds 90 calendar days, commencing on the 91st day. The policy also provides that an employee is not considered working out of class if DPA approves a change in allocation standards and an employee alleges that he/she was working in a higher classification prior to the effective date of the change in standards. Therefore, consistent with DPA’s policy, appellant is not awarded out-of-class pay as a CEA II for any period prior to October 31, 2003, the effective date of the reallocation of the CA position to the higher CEA II classification.

However, appellant’s 90-day uncompensated out-of-class period must begin on September 1, 2003, when she was promoted to the SSM III management position. As an SSM III she performed CA duties until October 30, 2003. When the CA position was reclassified to the CEA II effective October 31, 2003, she continued to perform the same higher level duties. ` Therefore, pursuant to DPA’s policy, appellant could be expected to perform higher level work from September 1, 2003 through November 29, 2003 without additional compensation. Although appellant’s out-of-class assignment to the ADD position was not formalized until December 16, 2003, this does not negate her out-of-class work at the management level prior to that time.