​DPA Case Number 05-K-0064 - Demotion in Lieu of Layoff

Final Non-Precedential Decision Adopted: August 8, 2005

By: Michael T. Navarro, Director

DECISION

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on August 2, 2005, at Sacramento, California.

Appellant was present and represented himself.

Sharon Planchon, Chief, Office Of Personnel Services and Debra Santiago, Chief, Office of Personnel Services, represented the California Department of Corrections and Rehabilitation (DCR), respondent.

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

I - JURISDICTION

Appellant received formal notice dated April 12, 2005 that he was being demoted effective May 12, 2005. Appellant filed a request (appeal) from a demotion in lieu of layoff with both the DPA and the State Personnel Board (SPB) on May 9, 2005. The SPB forwarded the appeal to DPA stating it lacked jurisdiction over the matter on July 6, 2005. Government Code section 19997.14 allows an appellant to file an appeal from a demotion in lieu of layoff if the appeal is timely filed within 30 days after receipt of the notice. Appellant's appeal was filed within the required 30-day period. Therefore, DPA has jurisdiction over the matter.

II - CAUSE FOR APPEAL

Government Code section 19997.14 allows an employee to appeal his layoff or demotion in lieu of layoff on the ground that the required procedure was not complied with or that the layoff has not been made in good faith or was otherwise improper. Appellant argued his demotion in lieu of layoff was improper because DCR did not transfer him to a vacant position at a salary level commensurate with his Community Resources Manager (CRM) classification instead of demoting him to a position as an Information Officer II (IO II). Appellant argued there were vacant Parole Agent III and Staff Services Manager III positions available into which he could have transferred. He argued he qualified to transfer into these positions by virtue of his permanent appointment to the Folsom CRM position and that such transfer was permitted and required as a result of status he acquired through his mandatory reinstatement under SPB Rule 548.153. He further contended that CDC had previously permitted transfers during layoffs in 1992-1993 when Parole Agents were allowed to transfer into Correctional Officer positions instead of being laid off. Finally, appellant argued DCR treated his appointment into the Folsom CRM position as a transfer rather than a reinstatement and this deprived him of obtaining "list eligibility" which would permit him to transfer into positions at a higher pay level. He argued transfer eligibility should be the same regardless of whether an employee is appointed to a position from a certified list or reinstated to a position pursuant to SPB Rule 548.153.

III - DCR's POSITION

The DCR argued it appropriately placed appellant in the IO II position because this demotion was done in lieu of layoff and was consistent with layoff statutes. It argued that SPB Rule 548.153 was inapplicable because it applied to termination of Career Executive Assignment's (CEA); appellant's CEA had been terminated in 1999; and, the termination of appellant's CEA was not part of an approved layoff plan initiated and implemented under the authority and requirements of Government Code sections 19997-19997.15. The DCR further argued that appellant's transfer rights were permissive and were unaffected by his demotion in lieu of layoff. Consistent with information it obtained from the SPB and SPB Rule 433 (a), respondent contended appellant could have permissively transferred from his CRM classification to other classes that had a maximum salary range the same as or lower than the CRM classification or he could also have sought permissive reinstatement to another CEA position. The DCR also contended that the 1992-1993 placement of surplus Parole Agents in Correctional Officer positions occurred under different circumstances when CDC had numerous openings for Correctional Officers. It argued that in the instant circumstance, all CRM correctional institution positions were being eliminated and only two remained in CDC's headquarters office. Appellant did not have enough seniority to hold either of these remaining CRM positions. Respondent also argued the CRM classification has no demotional pattern, but because appellant's personal demotional pattern included appointment in the IO classification, it appropriately demoted him to that classification. Respondent argued it had no duty to offer and/or to transfer appellant to a vacant position at the same or comparable salary level of the CRM.

PURSUANT TO THE FOREGOING THE ALJ MAKES THE FOLLOWING DETERMINATION OF ISSUES:

There was no dispute regarding the facts in this case. The disputed issues involve legal interpretation of the rights and responsibilities of the parties involving demotion in lieu of layoff and the effect of a previous mandatory reinstatement of a CEA pursuant to SPB Rule 548.153.

Appellant was involuntarily demoted from CRM to IO II in lieu of being laid off. He was demoted to this position based on his prior permanent appointment from a certified employment list in the IO class. In his April 12, 2005 notice of involuntary demotion in lieu of layoff, appellant was informed he could choose to transfer or demote to other classifications in which he located a vacancy or he could choose to retire, resign, or be laid off. There was no evidence appellant voluntarily applied for or was denied placement in vacant positions for which he applied.

Government Code Title 2, Division 5, Part 2.6, Chapter 7, Article 2, sections 19997-19997.15, sets forth the statutory requirements and procedures governing layoffs and demotions in lieu of layoff. Government Code section 19997.8 (a) (1) states in relevant part:

"In lieu of being laid off an employee may elect demotion to: (A) any class with substantially the same or a lower maximum salary in which he or she had served under permanent or probationary status, or (B) a class in the same line of work as the class of layoff, but of lesser responsibility, if such a class is designated by the department. . . ."

Government Code section 19997.8 (b) states in relevant part:

"Demotions in lieu of layoff, and layoffs resulting therefrom, shall be governed by this article."

The only option provided for an employee in the article that governs layoffs and demotion in lieu of layoff, is demotion. There is no statute that requires an appointing power to transfer an employee facing layoff.1

Appellant did not have any permanent or probationary status in any class except the CRM class and the IO class. He did not have enough seniority to obtain one of the two remaining CRM Headquarters positions. The only position he could have voluntarily demoted to was the IO class, the same class into which he was involuntarily demoted. Appellant's only other option was to separate from State service.

Government Code section 19997.8 (a)(1) gives the appointing power discretion to designate other appropriate classes in the same line of work with lesser responsibility for potential demotion. Respondent exercised this discretion in 1992-1993 when Parole Agents were allowed to demote into Correctional Officer positions. Respondent had no duty to designate such positions in this case.

Appellant's argument that his previous exercise of CEA mandatory reinstatement rights and SPB Rule 548.153 supersede the statutes specifically addressing the rights of employees being laid off and require the DCR to transfer him to a vacant position with the same or comparable salary as a CRM is without statutory or regulatory support.

SPB Rule 548.153 applies only to the termination of a CEA and requires the employee being terminated to exercise his rights under that rule within ten days of receiving notice of the CEA termination. Appellant's CEA was terminated in 1999. He has no mandatory rights under this rule in this instance because his potential layoff and demotion in lieu of layoff was not from a CEA.

All other arguments appellant made concerning his transfer rights and future list eligibility under SPB Rule 548.153 are outside the scope of DPA's jurisdiction to determine the legality of his demotion in lieu of layoff.

WHEREFORE IT IS DETERMINED

that the appeal from Demotion in Lieu of Layoff effective May 12, 2005, is denied.

FOOTNOTES

1. Government Code section 19994.1 gives an appointing power discretion to transfer any employee under its jurisdiction "(1) to another position in the same class; or (2) from one location to another whether in the same position, as specified in (1) or in Section 19050.5." Section 19050.5 gives an appointing power discretion to transfer an employee to another position in a different class designated as appropriate by the SPB.