Final Non-Precedential Decision Adopted: July 29, 2005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 July 19, 2005, at Sacramento, California.

Appellant was present and represented himself.

Teri Pryse, Labor Relations Officer, represented the California Energy Commission (CEC), respondent.

Karen A. Lynch, Staff Personnel Program Analyst and Franklin C. Marr, Labor Relations Officer, Department of Personnel Administration, 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 November 16, 2004 alleging he had been working out of class since 2001. He requested compensation as an Environmental Program Manager I for this period. On December 16, 2004, the CEC supported appellant’s grievance and recommended appellant seek final approval from DPA. Appellant filed his grievance with DPA on January 11, 2005. DPA preliminarily denied appellant’s grievance on March 25, 2005. It issued a corrected denial on March 28, 2005. Appellant appealed DPA’s preliminary denial on April 22, 2005.

Government Code sections 19815.4 (e) and 19818.16 and Title 2, California Code of Regulations (DPA Rule) sections 599.810 and 599.859 provide for DPA to review and consider a denial of an out-of-class claim 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 service of the preliminary determination. Appellant’s appeal regarding out-of-class compensation is considered timely and is therefore properly before DPA for review.

Appellant argued his position was misallocated. He argued the Planner series specification and the Planner III classification did not describe the duties and responsibilities assigned to his position. He argued the Planner series specification was designed to apply to technical positions rather than program manager positions. He further argued that while some of the duties he performed paralleled those found in the specification for Health Facilities Construction Compliance Officer, Office of Statewide Health Planning and Development (OSHPD), he worked out of class performing duties most closely paralleling those in the Environmental Scientist specification in the Environmental Program Manager I (EMP I) (Supervisory) classification. Appellant also contended that he was inadequately compensated when compared to other positions that performed similar work.

As a remedy appellant sought reallocation of his position to the EMP l (Supervisory) class and placement in that position and classification. He also sought back pay at that position and classification level since 2001.

Pursuant to Government Code section 19818.16, appellant is only entitled to reimbursement for out-of-class work for the 12-month period immediately preceding the filing of his grievance. Reallocation of appellant’s position and compensation for a period exceeding the statutory mandate are beyond the remedy permitted in an out-of-class appeal. Therefore, the period under consideration for compensation in this appeal is November 16, 2003 through November 16, 2004.

Appellant managed the Power Plant Compliance Unit (PPCU). The PPCU assumes regulatory responsibility for power plant projects when they move from the certification phase to the construction and operational phases. The Unit consists of appellant, eight project managers and an administrative assistant.

The PPCU and the Power Plant Siting Unit are part of the “Siting Office.” The Siting Office is within the Systems Assessment and Facilities Citing Division. The PPCU and Siting Units are both staffed by project and program managers who are supported by technical staff in an array of environmental, land use, and socioeconomic disciplines in the CEC’s Environmental Office. The Environmental Office uses the Planner classification, including the Planner III. However, the Planner III’s in the Environmental Office have supervisory but not program management responsibility. The Compliance and Siting Units are also supported by CEC’s Engineering Office which is staffed with a variety of technical experts in such areas as engineering, noise, and safety. The Engineering Office uses engineering classifications. CEC’s Legal Offices provides legal expertise for the Compliance and Siting Units.

PLANNER III–ENERGY FACILITY SITING

The specification for Planner – Energy Facility Siting encompasses four classes. The highest class in the series is the Planner III. The classes in the series are “to perform a wide variety of consultative, analytical and research oriented assignments in the Energy Facility Siting Division of the California Energy Commission.” The scope of the work performed by the classes in the series includes conducting surveys of existing facilities locations, capacities, and operations; developing techniques and conducting analyses of proposed or potential site areas; developing and recommending goals and objectives for a statewide facility program; developing, analyzing, and evaluating alternative facility siting plans; writing research reports and preparing progress reports on plans and forecasts; coordinating and reviewing energy facility siting standards, conditions and guidelines with Federal, State, regional, and local agencies, and related organizations involved with energy facility siting; participating in public hearings; implementing citizen participation procedures; making presentations to the Legislature; devising new methods to survey, analyze and plan for improved siting procedures; developing techniques to monitor construction and operation of facilities to ensure compliance to standards; reviewing and analyzing proposed legislation and advising the Commission on the impact of legislation; participating on or acting as a team, conference or task force leader on larger studies; directing activities of subordinate staff in energy facilities analysis; making recommendations regarding the applicability of various research programs existing outside of the Commission to the research efforts of the Commission in energy facility siting; and performing other facility siting activities as required.

The Planner III is the full supervisory level. The incumbent acts as a working team leader, planning and organizing the work of a staff responsible for a major phase of the facility siting program. The incumbent may act as a project manager on a small facility citing projects; may act as a consultant to the Commission to formulate and develop solutions to the most difficult and complex work; and, may coordinate the efforts of other researchers to accomplish Commission objectives.

Environmental Program Manager I (Supervisory)

This class is one in the series of Environmental Scientist classifications which includes three Environmental Scientist and three Environmental Program Manager classes. These classifications are used to perform a broad range of staff and management work concerning present and future environmental, environmental health, and natural resource management issues related to protecting the State’s natural resources and public health. Incumbents give presentations; prepare environmental permitting packages, regulatory permits, and other environmental documents; implement enforcement of various environmental and environmental health-related regulations; and conduct natural resource management, planning, and implementation activities. Incumbents apply scientific methods and principles in the identification, research, and solution of problems in the areas of biodiversity planning, environmental monitoring, water resources development, illegal discharge of waste to the lands and waters of the State, toxic and hazardous materials management, point and non-point source pollution, natural area management, habitat protections and restoration, wetland restoration, river greenways, riparian habitat, land and water use, agricultural return flows, timber harvesting, streambed alterations, and watershed evaluation. Incumbents analyze and evaluate available data on the effects of water pollutants, waste management, water diversions, and water use on human health, vegetation, fish, wildlife, water supplies, potential land uses, and other aspects of the environment; prepare and review environmental impact reports and other documents to determine the effects of proposed activities on environmental health and all areas of the environment; coordinate water development, water pollution, water management control, and other environmental and environmental health programs with other public and private agencies; develop regulatory measures and implement enforcement of environmental standards, develop recommendations regarding environmental programs as these may be affected by scientific findings; prepare and edit scientific papers for publication; consult with and advise other agencies and institutions engaged in related investigation and research; meet and confer with individuals and groups to obtain compliance with laws and regulations concerning Environmental requirements of the State; participate in hearings an field investigations as a staff expert for environmental matters; and prepare reports and correspondence. On occasion, incumbents may perform environmental analysis in a laboratory setting.

The EPM I (Supervisory) is the second supervisory level of the series. Incumbents direct and have charge of environmental programs or components which are of major sensitivity and complexity; carry authority and accountability for timely completion of program objectives and for submittal of satisfactory products; are responsible for operational planning and assigning of projects, budgeting for time and funds, reviewing and evaluating achievements, and preparing administrative reports. The incumbents also coordinate program activities and technical and administrative support sections and their activities; assist in formulating and administering policies; maintain liaison with other governmental agencies and the private sector; and does other related work. Incumbents may supervise a group of Staff Environmental Scientists and other professionals working on a major environmental management, regulation, compliance or research project. Incumbents have authority in the interest of management to hire, transfer, suspend, layoff, recall promote, discharge, assign, reward or discipline employees. Incumbents also have the responsibility to direct employees, adjust employee grievances, or effectively recommend such actions.

Health Facilities Construction Compliance Officer

This series specification describes classes used in the Seismic Safety Program of OSHPD. These classes perform, supervise, and manage the construction compliance phase of projects to modify or construct health facilities.

The scope of activities performed by the incumbents in these classes includes the monitoring of field activities, testing, and certifying private sector construction inspectors; attesting that completed projects are in accordance with approved plans and specifications; and administering and managing a decentralized statewide program. The supervisory and manager classes supervise and manage programs to ensure that all new construction and alterations of health facilities comply with the requirements of the California Code of Regulations, and other related codes and regulations, including the fire and life safety requirements.

Typical tasks include preconstruction conferences; visiting construction sites to view construction progress and the quality of inspection; submitting periodic construction reports which acknowledge progress and problems of noncompliance to building standards; issuing stop work orders when the public health and safety is endangered; providing advise on building standards and interpreting plans and specifications for private section construction inspectors and others involved in the construction process; coordinating site inspections by other governmental agencies; attending formal inspections of completed work; sponsoring and participating in the training of private sector construction inspectors; supervising field staff; preparing budgets, personnel and other administrative documents; providing staff support to the Building Safety Board, participating in the development of office policy; testifying before legislative committees and administrative bodies; and performing other administrative and technical tasks as required.

Under general direction, the Regional Health Facilities Construction Compliance Officer is responsible for supervising the work of Health Facilities Construction Compliance Officers, and Fire and Life Safety Officers in an assigned geographic region in the development of building standards and policies related to enforcement.

The Health Facilities Construction Chief Compliance Officer is responsible for managing the OSHPD Compliance and Fire and Life Safety Sections; planning, organizing, and coordinating multiple units of staff within the Health Facilities Construction Compliance Program including budgeting, training, staffing, testing, and certification. The incumbent also acts as a representative in court hearings, legislative committees and appeals, and serves as a program resource to the Southern California office management of OSHPD.

CEC supported appellant’s grievance claiming that the Planner specification does not adequately reflect the difference in duties and responsibilities of Planner III’s who supervise and manage programs, and those who do not have program management responsibility. Although CEC did not perform or submit a job analysis of appellant’s position, it supported appellant’s description of his duties and the time he estimated he spent performing such duties. CEC further expressed its opinion that DPA has consistently failed to act on numerous classification and compensation problems such as the one demonstrated in the instant case because DPA decided the issues did not warrant attention or action.

DPA denied appellant’s grievance. It found that more than 50% of the duties performed and described by the appellant were appropriate for the Planner III. It also advised appellant that his request for a compensation adjustment could be appropriately addressed through a Special Salary Adjustment request as described in Section 290 of the DPA Guide to Classification and Pay Policies and Procedures.

Appellant argued that DPA’s analysis was flawed because it based it’s denial of his grievance on a finding that more than 50% of his duties were appropriate for the Planner III, rather than on the standard articulated in DPA Rule 599.810 which allows compensation if more than 50% of an employee’s time is spent performing duties outside of the assigned class. He argued that aside from supervision, none of his duties and responsibilities are reflected in the Planner series specification. He contended the specification was only designed for staff and supervisors representing various technical and environmental resource-related disciplines, instead of employees who performed general program management duties.

DPA argued the Planner series specification was the existing classification that best described appellant’s duties. It further argued that the EMP I (Supervisory) class and the Environmental Scientist series specification did not appropriately describe appellant’s duties because this classification was applicable to scientists and environmentalists concerned with natural resources rather than industrial complexes. It also contended the Planner III classification description generally described appellant’s duties.

All parties agreed the Planner series specification needed to be updated.

“‘Out-of-class work’ is defined 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.” (DPA Rule 599.810 (a) (2).) Excluded employees may be compensated for performing duties of a higher classification provided that, among other things, the duties performed by the excluded employee are not described by the specification for the class to which the excluded employee is appointed and, further, taken as a whole, are fully consistent with the types of jobs described in the specification for the higher classification. (DPA Rule 599.810 (b) (3).) It was undisputed that the EPM I (Supervisory) position is a higher classification than the Planner III position.

In determining whether or not appellant’s assigned work was performed at the higher classification of an EPM I (Supervisory), the kind and variety of duties performed and the relative amount of time spent performing the duties must be evaluated. Appellant testified he spent 70% of his time performing program management duties which he alleged are not included in the Planner III specification. Of this 70% of his time, he alleged 45% was associated with environmental/natural resources management and 25% was associated with building code enforcement and safety compliance issues. The specific tasks he performed involved ensuring environmental, building, and safety compliance for 25 power plant projects under construction or in the pre-construction phase, and 61 operational power plan projects representing over 25,000 megawatts of electricity; processing formal and informal power plant modifications by overseeing the modification approval process, including the environmental review and development of new and revised mitigation measures for CEC consideration; conducting short and long term program planning; developing and monitoring program goals and objectives; establishing, implementing, and tracking program schedules and procedures; tracking and reporting on program achievements; interfacing with the energy industry, coordinating with other CEC Programs and other public agencies, and managing technical consultants; establishing and overseeing procedures to verify compliance with all applicable California Building Code and Title 8 Safety Code requirements; overseeing contractors who audit the performance of CEC delegated building officials/inspectors for quality control purposes; developing and implementing procedures used to certify and assign CEC delegated building officials/inspectors; facilitating resolution of site construction issues by providing direction and guidance to building officials/inspectors; facilitating development of guidelines and policies that govern CEC delegated building officials’/inspectors’ activities; facilitate and oversee safety audits performed by staff and consultants; and, ensuring corrections are made to power plant facilities as determined by building official audits and safety audits, and ensuring adequate processes and procedures are in place to support this effort.

Appellant further testified that he performed supervisory duties anywhere from 20% to 30% of the time depending on what supervisory activities are included as either program management activity or related to direct supervision of state employees. Appellant supervised eight Project Managers who have direct responsibility for overseeing power plants. The Project Managers led a team of technical staff from various disciplines at each power plant. Appellant also supervised an administrative assistant. Appellant quality controlled the work of his staff, monitored assigned projects, performed budgeting activities, handled disciplinary or corrective actions, and signed timesheets as well as performed all other routine supervisory duties. Appellant admitted that these supervisory duties were appropriate to his Planner III classification as well as the EPM I (Supervisory) and OSHPD Compliance Officer classifications.

Appellant alternatively argued that none of the duties he performed fell within the Planner III series and that 20% to 30% of his duties fell within his current class as supervision duties. Appellant argued the first sentence in the Planner III series specification, “The classes in this series are used to perform a wide variety of consultative, analytical and research oriented assignments in the Energy Facility Siting Division of the California Energy Commission,” governs the interpretation of the entire specification and therefore that the specification only applies to technical employees who consult, analyze, or research in a specific area. He argued that the specific tasks described in the specification must be narrowly interpreted within the parameter of the first sentence. Appellant supported his argument by pointing out that the specification does not specifically use the term “project management.” He also pointed out that the Planner III specification refers to “projects” rather than a “program” and that it allows the incumbent to coordinate the efforts “of other researchers.” He therefore concluded that the Planner III is impliedly a “researcher” as opposed to a program manager.

Appellant’s emphasis on and application of the first sentence of the specification is overbroad. This sentence acts merely as a generalized description and overview of the specific duties that follow. The language of the specification must be viewed in its entirety. There is no specific language that limits and requires the enumerated tasks be applied only to a specific project or a specific technical or scientific discipline by an employee who works specifically as a “consultant,” “analyst” or “researcher.” It is the duties performed rather than a broad, general categorization such as “consultative, analytical, or research oriented” that are ultimately used to determine how much time an employee spends allegedly performing out-of-class work.

It was undisputed that the appellant’s duties required him to ensure environmental, building and safety compliance for 25 power plants that are under construction or in the pre-construction phase, and 61 operational power plant projects that can generate over 25,000 megawatts of electricity. The dispute involves how much of this program management work falls within his current classification of Planner III and therefore, how much time appellant spent doing program management work that is not included in his classification, but that is included in the EPM I (Supervisory) class.

Appellant admitted he spent 20% to 30% of his time supervising eight Project Managers who each led a team of specialists from varying technical and scientific disciplines at each of the power plants. Therefore through the Project Managers, appellant coordinated the work of specialists and potentially the “researchers” to which he argues the specification applies. This is clearly within the supervisory responsibility of the Planner III.

Further analysis of appellant’s additional duties reveal that the majority of his duties fall within the scope of that described in the Planner III classification. In addition to supervising, appellant planned and organized the work of his staff who are responsible for major phases of the facility citing program, and he acted as a working team leader. Consistent with duties specifically identified in the Planner III specification, appellant developed and recommended goals and objectives for a statewide facility siting program. He developed, analyzed and evaluated alternative facility siting plans by processing formal and informal power plant modifications which include oversight of the modification review process, and environmental review and development of new and revised mitigation measures. He prepared progress reports on plans and forecasts by establishing, implementing and tracking program schedules, procedures, and achievements. He coordinated and reviewed energy facility siting standards, conditions, and guidelines with other energy industry organizations, and other public agencies. Appellant developed techniques to monitor construction and operation of facilities to ensure compliance to standards by establishing and overseeing procedures to verify compliance with all applicable California Building Code and Title 8 Safety Code requirements and by facilitating development and implementation of procedures to ensure corrections were made to power plants as identified by official audits and he certified and assigned Energy Commission delegated building officials/inspectors and policies to govern delegated work.

While the majority of appellant’s duties (more than 50%) fall within the broad range of those in the Planner specification and the Planner III’s classification, appellant performed broad program management implementation and continuing oversight responsibilities that are not designated within the specification.

While the Planner III develops, plans, monitors, tracks, reviews, and evaluates and may act as a project manager and supervise others who act as project managers, there is no specific delegation of overall program duties as opposed to project responsibility.

However, appellant’s overall job duties and responsibilities are not adequately encompassed within the Environmental Scientist series specification and the EPM I (Supervisory) class or within the OSHPD Regional Compliance or Chief Compliance Officer classes. In order to be compensated for out-of-class work, the employee must perform the full range of duties and responsibilities of the higher class and must perform duties fully consistent with the type of jobs described in the specification for the higher class. Although the Environmental Science series specification which includes the EPM I (Supervisory) classification more clearly designates program management responsibility than does the Planner series specification, the nature of the program management responsibility in the Environmental Science specification is detailed as one primarily involving environmental resource management and protection and public health. In contrast, the primary responsibility of the Planner series is the construction and maintenance of industrial power plants to provide electricity. Unlike the EPM I (Supervisory), the Planner III’s concern with the environment and public health is secondary to the operation and construction of the industrial complex. The EPM I (Supervisory) classification requires performance and management of a broader range of environmental duties independent of the existence of an industrial power plant. Furthermore, appellant testified that 45% of his project management duties fell within this classification. Appellant did not perform the full range of duties fully consistent with the types of jobs described in the Environmental Scientist series specification and the EPM I (Supervisory) classification.

Likewise, appellant did not perform the full range of duties required of a OSHPD Regional Compliance Officer or Chief Compliance Officer. Appellant did not work for OSHPD and did not supervise the scope of work performed by the OSHPD Compliance Officers and Fire and Life Safety Officers in the construction, monitoring, and testing of health facilities. Appellant’s duties in this area were incidental to the provision of electricity through the construction and monitoring of the power plant rather than through activities associated with health care facilities. Appellant recognized that any duties he performed that paralleled these OSHPD classifications consumed 25% of his time.

 

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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 he has performed duties outside the scope of his present classification but in an existing classification more than 50% of the time. 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.

Appellant performed duties within the scope of the Planner III classification at least 51% of the time.

Appellant failed to prove he performed non-overlapping duties fully consistent with the types of jobs in the Environmental Scientist specification and the full range of duties of the EPM I (Supervisory) classification. Appellant also failed to prove he performed non-overlapping duties fully consistent with the types of jobs in the OSHPD Compliance Officer Specification. Although appellant’s current class specification does not clearly designate and include all the duties and responsibilities he performs, no existing classification was identified that does include the totality of these duties and responsibilities.

 

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that the appeal from Denial of Out-of-Class Claim effective March 28, 2005, is denied.