DPA Case Number 05-P-0007 - Denial of Out-of-Class Claim

Final Non-Precedential Decision Adopted: September 20, 2005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 June 8, 2005 and September 1, 2005, at Sacramento, California.

Appellant was present and was represented by Laura Strand, Labor Relations Representative, Association of California State Supervisors (ACSS).

Stephen A. Jennings, Staff Counsel III, represented the California Department of Corrections (CDC)1, respondent.

DPA did not appear at hearing and is therefore considered to have presented all its findings and argument in the material it submitted to all parties prior to the hearing.

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

On September 22, 2004, appellant filed an out-of-class grievance with CDC claiming she worked out of her classification of Executive Assistant (EA) since September 1, 2000. CDC denied the grievance on November 10, 2004. Appellant appealed CDC’s denial to DPA on November 15, 2004. DPA issued its preliminary determination denying the grievance on December 10, 2004. The ACSS filed an appeal of the denial of out-of-class claim on appellant’s behalf on December 30, 2004.

Government Code sections 19815.4 (e) and 19818.16 provide for 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 service of the preliminary determination. Appellant’s appeal complies with the procedural requirements of Government Code section 19818.16 and is properly before DPA for review.

Appellant alleged she worked out-of-class from September 2000 through at least November 15, 2004. As relief for working out of class, appellant requested permanent reclassification to an Associate Governmental Program Analyst (AGPA) position and back pay.

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 her grievance. Appellant filed her grievance on September 22, 2004. Thus, the period for which she could be potentially compensated is September 22, 2003 through September 22, 2004.

The Communications Office was CDC’s point of contact with the media and the public. In addition to interfacing with the media and the public, it also received and screened incoming telephone calls from various agencies throughout the State, the Youth and Adult Correctional Agency, Legislators and the Governor’s Office. It received approximately 40 to 50 “news-related” calls per day. In 2000, the Communications Office had seven allocated positions and three to four student assistants. One of the duties of the student assistants was to answer the telephone and either provide information or refer the call to appellant or another Communications Office employee for further handling. In 2000, the Communications Office had a budget of approximately $720,000. By 2004, the budget had increased to approximately $900,000.

For a variety of reasons, there was a lack of support staff in the Communications Office in 2000. There were no systems in place to deal with budget, invoice, and contract monitoring. CDC was in the process of implementing a new budget tracking system.

The Assistant Director, Communications Office, hired appellant in 2000 as a secretary in the Communications Office. Appellant had no experience with the new budget tracking system or with other budget monitoring, invoice verification, or contract-related work. She attended training in at least some of these areas. As appellant learned more about the budget tracking system and CDC budget policies and practices, about CDC’s accounting system and the Communications Office existing contracts and future needs, her job evolved. With her newly acquired skills and her increasing knowledge of Communications Office needs and procedures, she began to improve the administrative oversight and staff support of the Communications Office. The Assistant Director promoted appellant to an EA in September 2000. He gave appellant the working title of “Office Manager.”

As appellant became more involved with the Communications Office budgets and contract work, as she considered other EA’s job duties, and as she worked with Budget and Contract analysts, she became convinced she was working out of class. She told the Assistant Director she was working out of class. The Assistant Director responded by telling appellant something to the effect it wasn’t necessary to reclassify her because she was doing a good job.

The Assistant Director left CDC’s Communications Office in October 2003. The new Assistant Director supervised appellant from October 2003 through March 2004. Another Assistant Director began supervising appellant In March 2004. He was appellant’s supervisor until July 2005. The Assistant Director had experience with budget, accounting, and contract management. He realigned appellant’s duties by assuming more responsibility for the Communications Office budget and contracts. Based on the Assistant Director’s knowledge of the duties EA’s performed at the California Youth Authority (CYA) in the Labor Relations Office, he believed appellant was working out of class. The Assistant Director had previously supervised secretarial staff but had never supervised an EA. He believed appellant was carrying an “unequal burden” that should have been distributed among the other Communications Office non-support staff and he believed she was performing budget duties not commensurate with an EA. At appellant’s request, he began to investigate how she could be compensated for past out-of-class work and how her position could be reclassified. As a result of this inquiry, appellant was advised she would have to follow the excluded employee grievance process for out-of-class pay. She was also advised she could laterally transfer into a Staff Services Analyst II (SSA II) position if such a position was approved for the Communications Office. An SSA II position would be at a lower salary level than that appellant was earning as an EA.

Under direction of a high level administrator, an EA provides staff assistance on sensitive departmental or program issues; provides administrative assistance and secretarial support; provides office management, supervisory, and other staff and office services; and, does other related work. In addition to performing secretarial duties, employees in this class are expected to spend a significant portion of their time relieving an administrator of assigned administrative detail, carrying out assignments on their own initiative and obtaining facts on which decisions are made. Typical tasks include researching confidential and sensitive departmental or program issues; using microcomputers and/or video display terminals, accessing, inputting, revising and extending information contained in data banks; screening, redirecting and/or responding to telephone calls and written inquiries from the Governor’s Office and the Legislature and other high level contacts on behalf of the Administrator; maintaining the administrator’s working schedule and calendar; developing and implementing computer-based management information systems for the administrator; implementing computer-based office management systems; following up on projects and requests assigned to programs; reviewing specifically delegated programs for format, content and grammar; developing or assisting in the development of office workload and planning standards, staffing requirements and budgets; preparing and signing correspondence in the absence of the administrator; directing the activities of the office support staff; supervising subordinate staff; establishing office procedures and operating systems; and providing and/or directing the typing and secretarial support services for the administrator. The top salary step for the EA is $3,734 per pay period. This is the salary appellant was receiving at the time of her appeal.

The SSA is the journey level position. The incumbent performs analytical work in one or more areas of a broad range of governmental and managerial problems. Under supervision, incumbents perform work of average difficulty in a wide variety of consultative and analytical staff services assignments such as program evaluation and planning; systems development; budgeting, planning, training, management; and personnel analysis as well as other related work. Specific tasks may include studying the principles and techniques of an assigned work area and under supervision applying such principles and techniques. Tasks may also include participating in analytical studies of organization, procedures, budgetary requirements and personal management; gathering, tabulating, and analyzing data; drawing organization, workload and other charts; interviewing and consulting with departmental officials, employees and others to give and secure information; preparing reports and making recommendations on procedures, policies, and program alternatives; reviewing and analyzing proposed legislation and advising management on the potential impact; making decisions on financial, personnel, and other transactions of average complexity; working as a field representative in intergovernmental negotiations; and preparing correspondence.

The salary range for the SSA classification was not provided.

The AGPA as well as other employees in the series are to perform a wide variety of consultative and analytical staff services assignments such as program evaluation and planning; policy analysis and formulation; systems development; budgeting, planning, management; and personnel analysis. Incumbents work on a broad range of governmental and managerial problems that may be interdisciplinary in nature. They conduct and/or review analytical studies and surveys; formulate procedures, policies and program alternatives; make recommendations on a broad spectrum of administrative and program-related problems; review and analyze proposed legislation and advise management on the impact or potential impact; participate on or act as team, conference, or task force leaders on larger studies; coordinate the efforts of representatives of various governmental agencies; and represent the State or a given department as assigned.

The AGPA is the full journey level class in the Governmental Program Analyst specification series. The AGPA is expected to perform the more responsible, varied, and complex technical analytical staff services work and continually provide consultative services to management or others. The salary level for the AGPA ranges from $4,111 to $4,997 per pay period.

CDC denied appellant’s request for out-of-class compensation. CDC determined that appellant was performing duties in line with the EA class which combined secretarial and analytical skills and duties. It based its finding on the allocation guide for EA which anticipates that an incumbent will perform approximately 40%-50% analytical duties typical of those found at the Management Services Technician or SSA level with the remaining secretarial, supervisory and administrative systems development duties comprising the additional 50%-60% of an incumbent’s work time.

DPA also denied appellant’s request for out-of-class compensation. DPA analyzed appellant’s claim of out-of-class duties at both the SSA and AGPA levels. It found that the budget and contract work she performed was appropriate for an incumbent at the SSA level. Based on information submitted by the Assistant Director, DPA found that these duties comprised only 30%-35% of appellant’s work time with the secretarial, supervisory and administrative support duties being performed the other 65%-70% of the work time. Thus, DPA concluded appellant did not perform out-of-class duties at the level required for out-of-class compensation.

Appellant challenged that she spent only 30%-35% of her time performing budget-related work. She testified she spent 85% of her total time performing administrative functions. Of that 85%, she testified she spent 65%-75% of her time on budget-related activities; 10%-15% of her time performing accounting functions; and, 45% of her time doing contract-related work.

She further argued that other EA’s did not perform the budget and contract functions that she performed and that others whom she worked with had told her she was working out-of- class. She also argued that the Assistant Director had failed to properly pursue getting her position reallocated.

“Out-of-class work” is defined as, more that 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 RuIe 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 AGPA classification was a higher classification than the EA position.

In determining whether or not appellant’s assigned work was performed at the higher classification of AGPA, one must evaluate the kind and variety of duties performed and the relative amount of time spent performing the duties. It was undisputed that appellant was the principal contact person for questions regarding the Communications Office budget and that she worked closely with the assigned Budget Analyst in CDC’s Budget Office. She attended various budget-related meetings both with and without her supervisor, and she projected the Communications Office monthly expenses on the computerized budget spreadsheet. She monitored the Communications Office expenses and she investigated invoices and budget charges. She assumed a primary role in the day-to-day tracking and approving of invoices and expenses. When the Communications Office was required to submit potential budget cuts in 2004, she made recommendations on where such cuts could be made. By all accounts, appellant excelled in her performance of her budget duties.

It was also undisputed appellant excelled in her execution of her contract-related duties. She was the primary point of contact with CDC’s Contract Unit. She worked closely with Contract Unit Analysts to define the needs of the Communications Office and to complete the documents and provide any information needed to formalize, procure, and maintain vendors to provide an ongoing variety of services, supplies, and equipment including media services and student assistants; telephone equipment and services; video and office equipment maintenance services; and printing and graphic services. She interacted with the vendors during the bid and contract implementation process and she monitored the contract and contract invoices to ensure the vendors were providing the required services at the predetermined price.

Although appellant testified she did not process letters for the Assistant Director on a consistent basis, she did testify she edited correspondence generated by other office staff on a limited basis. She did not dispute that she performed other office management functions such as responding to telephone inquiries that the student assistants were unable to handle; reviewing all incoming correspondence and reports; assigning and routing director assignments; mailing correspondence, tracking staff assignments and follow-up; purchasing office equipment; listing staff General Services Access cards, cellular and telephone numbers, pagers, etc.; maintaining personnel records; acting as the timekeeper; preparing all hiring documents for the Communications Office; preparing documents for disposal, transfer, records retention of office equipment and records; maintaining up-to-date manuals and files; and making travel arrangements.

Appellant also testified she interviewed, hired, and supervised four student assistants. Supervision in this area included overseeing daily office function and assignments and conducting periodic meetings and training as well as initiating and processing all vacations, time off requests and timesheets.

Appellant also did not dispute she researched confidential and sensitive departmental issues used as briefing information for the Assistant Director; gathered factual data for reports, polices, and correspondence to provide to CDC’s Director, the Legislature, the Youth and Adult Correctional Agency, the Governor’s Office and other departmental administrators; and reviewed and compiled information to be used in Legislative Hearings.

When appellant was promoted to EA, the Assistant Director and appellant worked together to draft her duty statement which allocated 30% of appellant’s time to the above-described office management functions which included the budget and contract duties. The duty statement also allocated 35% of appellant’s time to the more secretarial aspect of appellant’s duties including the screening of the telephone calls and acting as a liaison between the Assistant Director and other staff. Twenty-five percent (25%) of appellant’s time was allocated to her duties involving the student assistants and maintenance of office computers. Another 10% was allocated to the researching and gathering of data.

At hearing the Assistant Director testified he believed the time percentages on the duty statement were accurate. The Assistant Director estimated appellant was performing out-of-class duties from 50% to 52% of the 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 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. This is the only remedy statutorily available for an appeal from a denial of a reimbursement claim for out-of-class work.

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 the employee spent performing the duties must be evaluated.

In this case appellant failed to prove she spent more than 50% of her time performing the full range of non-overlapping duties of the higher classification of AGPA. Both the EA and AGPA specification provide for an incumbent’s involvement with program issues such as the budget and contracts. While the AGPA specification discusses such duties in terms of consultative and analytical work involving the formulation of procedures, policies and program alternatives, the EA specification addresses staff assistance on sensitive program issues and specifically provides for developing or assisting in the development of the budget and for general researching, data gathering, development of office procedures and operating systems, and planning standards. The EA specification permits the implementation, revision and extension of information contained in computer based office management systems such as CDC’s budget tracking system. The budget and contract duties appellant performed overlap those described in the AGPA specification. Therefore, pursuant to DPA Rule 599.810 (b)(3), such duties cannot support appellant’s claim for out-of-class compensation.

Furthermore, appellant estimated she spent 85% of her time performing “administrative duties” and from 65% to 75% of that 85% performing budget and accounting work. Her total estimate of her work time exceeded 100%. There was no indication appellant worked overtime to perform any of her duties.

Based on appellant’s testimony, the total scope of her “Office Manager,” secretarial, and analytical and research duties, and the testimony of her supervisors indicating she spent anywhere from 35% to 52% of her time performing budget and contract-related duties, it is impossible to conclude appellant spent more than 50% of her time performing the full range of non-overlapping duties in the AGPA classification.

 

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that the appeal from Denial of Out-of-Class Claim effective December 10, 2004, is denied.

 

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1. Since the relevant periods in this case, CDC has become the California Department of Corrections and Rehabilitation. However, for purposes of this matter, it will be referred to as CDC.