Final Non-Precedential Decision Adopted: October 30, 2006
By: David A. Gilb,, DPA Director
DECISION
I - STATEMENT OF THE CASE
A hearing in this case was held on April 18 and 19, and July 18, 2006 in Sacramento, California.
Appellant, was present and represented himself.
Nalda L. Keller, Labor Relations Counsel, Department of Personnel Administration (DPA) represented the State Board of Equalization (BOE) and DPA, respondents.
Appellant filed a grievance with BOE for out-of-class pay on March 11, 2005. BOE denied appellant's grievance at the third level on August 23, 2005.
Appellant filed an appeal of BOE's denial with DPA on September 9, 2005. DPA issued a preliminary determination denying the grievance on December 21, 2005.
Appellant appealed DPA's preliminary denial on January 18, 2006.
- DPA has jurisdiction over out-of-class pay issues and allocation issues. (Gov. Code 19818.6, 19818.16 and 19818.20.) DPA provides a hearing through DPA's Statutory Appeals Unit (SAU) for the appeal of out-of-class pay issues. Appellant's appeal of the allocation issue was forwarded to DPA's Classification and Compensation Division. (See California Code of Regulations, Title 2 (DPA Rule) 599.859.)
DPA does not have jurisdiction over interim or permanent appointments. These are under the jurisdiction of the State Personnel Board (SPB). (See California Code of Regulations, Title 2 (SPB Rules) 302.3 and 303.3).
II - ISSUES
Appellant's Position
III
During all relevant periods, appellant was classified as a Business Taxes Compliance Supervisor III (BTSC III). In his March 11, 2005 grievance, appellant claimed he should receive out-of-class pay for "performing all duties of the Ventura District Administrator (Business Taxes Administrator III) [BTA] on an alternating three week basis as Acting District Administrator [Acting DA] beginning January 28, 2003 and continuing into September 2004, and from October 2004 to date for being directed to handle 70% of the former District Administrator [DA] duties." (Jt. Exh. 1, p. 76.)
Appellant alleged BOE acted illegally by assigning him Acting DA duties on a 15-day rotating basis for 14 months to avoid out-of-class pay. He asserted BOE failed to reclassify his position when additional duties were added to it and that the new duty statement he received in November 2005 was deceptive.
Finally, he also alleged the permanent addition of duties to his BTSC III position in November 2004 represented inequitable treatment and did not adequately consider the workload.
As a remedy, appellant sought:
1. Pay for working out-of-class as Acting DA, which is classified as a BTA III from July 2003 through September 2004;
2. A BOE analysis of the additional duties delegated to him and appropriate reclassification of his BTCS III position with corresponding compensation;
3. Equal treatment with other employees in the same classification in other Districts;
4. "Fair" distribution of delegated DA duties between him and the District Principle Auditor (PA) based on the responsibilities and workloads of the respective programs;
5. BOE's compliance with "Government Code Sections, DPA Rules, SPB Rules, and Personnel Policy contained in DPA Personnel Liaisons Memorandums and the State's Classification and Compensation Manual relative to out-of-class assignments, use of classifications, and acting assignments." (Jt. Exh. 1, p. 72.); and
6. Re-organization of BOE's "operation" to eliminate the DA position rather than shifting the work to him.
By the time of his closing brief, appellant amended his position. Appellant amended his argument to the following:
1. Appellant spent more than 50% of his time performing BTA III duties from July 2003 through October 31, 2004 because he was expected to exercise responsibility and oversight for the entire Ventura District through this period;
2. Government Code section
1 19818.16 permits reimbursement for one year of out-of-class work irrespective of how long before the claim was filed the work was performed;
3. Respondent BOE violated Section 19818.8 by requiring him to alternate as Acting DA for 15 consecutive work days for 15 months;
4. Appellant should not have to prove he spent more than 50% of his time performing the full range of duties allocated to the higher classification of BTA III because he was assigned to the DA position on a "Acting" basis; and
5. Respondent did not respond timely to his third level grievance appeal and some penalty should be assessed for that failure.
As a remedy, appellant sought out-of-class pay for six months at "the differential level of $678 per month, for a total of $4,068." (Respondent's closing brief at p. 13.)
It is unclear for what specific period appellant was claiming this pay.
BOE's Position
IV - BOE argued:
1. Section 19818.16 limits reimbursement for out-of-class work to one year preceding the filing of the claim and therefore only appellant's work from March 10, 2004 through October 31, 2004 should be examined for potential reimbursement;
2. Appellant did not perform the full range of BTA III duties because he did not plan, organize and direct the work of the tax audit program as well as the work of the compliance program;
3. The duties appellant performed during the relevant period either overlapped with that of his BTSC III position or could be or were delegated to lower classifications;
4. Appellant did not prove he performed the duties of the BTA III more than 50% of the time for the relevant period; and
5. Appellant's revised duty statement met established BTCS III specifications and changes or additional duties and responsibilities did not necessarily warrant any pay or classification changes.
DPA's Position
V - DPA denied appellant's out-of-class claim because:
1. Section 19818.16 prohibits DPA from awarding out-of-class compensation for work performed more than one year prior to the filing of the out-of-class claim. Thus, the time period considered for compensation was March 11, 2004 through March 10, 2005;
2. Appellant failed to prove he continued rotational assignments in the BTA III class beyond February 2004;
3. Appellant failed to perform the full range of BTA duties because he did not manage the audit program after February 2004; and
4. The responsibility for new administrative duties assigned to appellant after February 2004 did not fall within the BTSC III classification.
Issue Statement
VI - The only issues to be decided through this hearing are:
1. Does Section 19818.16 limit the period of review for out-of-class compensation to one year immediately before the date the claim was filed?
2. Did appellant perform the full range of BTA III duties for more than 50% of the relevant period?
3. Should BOE be penalized for responding to appellant's grievance 6 days late?
VII - FINDINGS OF FACT
Appellant began working for the BOE in June, 1975. During his career, he held the positions of Business Taxes Representative, Senior Business Taxes Representative, and Business Taxes Compliance Supervisor I and II. He was promoted to BTCS III in November 1987. At all times relevant to this issue, appellant was classified as a BTSC III in the Ventura District Office in BOE's Field Operations Division.
BOE's Chief Field Officer (CFO) assigned appellant to the position of Acting DA (BTA III) for the Ventura District in July 2003. Appellant was assigned to this position on an alternating 15-day basis. The Ventura District Office Supervising Tax Auditor III (STA) was also assigned to the Acting DA position on an alternating 15-day basis. The STA and appellant rotated the duties and responsibilities of the Acting DA position on 15-day intervals.
The CFO assigned appellant to continue rotating in the Acting DA position through December 2003.
Although they were not formally assigned to do so, the appellant and the STA continued to fill the position of Acting DA on a 15-day rotational basis in January and February 2004.
When the appellant was either assigned to the Acting DA position or informally continued to rotate acting as the DA from July 2003 through February 2004, he performed the complete responsibilities of that position and he was responsible for both the audit and compliance functions.
The CFO met with the appellant and STA on February 25, 2004. The CFO informed the appellant and the STA that the DA position in the Ventura District was being eliminated. The CFO explained that the duties of the DA position were being divided between the appellant and the STA with the duties of the compliance function being assigned to the appellant and the duties of the audit function being assigned to the STA. The CFO instructed the appellant and the STA to report directly to her. At the February 25, 2004 meeting, the CFO gave the appellant and the STA copies of a proposed organization chart. The organization chart showed that the appellant and the STA reported directly to her.
At the February 25, 2004 meeting, the CFO did not assign the appellant to continue rotating as Acting DA. No instructions were provided to appellant or the STA regarding the procedures to be followed if one of them were out of the office.
Neither the appellant nor the STA received duty statements for their new assignments. Specific assignments for the administrative tasks previously performed by the DA were not made at the February 25, 2004 meeting.
New duty statements incorporating the administrative tasks of the former DA position were eventually developed for the appellant and the STA. The appellant and the STA had input into these duty statements. In the new duty statements, the majority of the administrative tasks previously assigned to the BTM III were eventually assigned to the appellant in the new duty statement that was formally implemented on or about November 1, 2004.
On or about June 13, 2005, the CFO sent an e-mail message to some BOE staff and to the appellant announcing the Ventura District did not have a DA or Acting DA and that the appellant and the STA reported directly to her.
Between March and October 31, 2004, BOE staff and the CFO continued to send some matters concerning both audit and compliance operations to the appellant for handling.
Between March and October 31, 2004, aDAinistrative management responsibilities previously performed by the BTM III remained undefined. Initially, the appellant and the STA continued to informally split the duties. Sometimes they performed these duties on a "rotation basis" and other times they simply performed the duties as required. Appellant and the STA made a decision to stop rotating the informal "Acting DA" assignment in July, August, and September, 2004.
At least as late as June 2004, the appellant and the STA sent the CFO e-mails keeping her apprised of who was "Acting" DA if one of them was out of the office. The CFO did not respond to these e-mails.
The CFO knew or should have known that the appellant continued to function as an Acting DA performing responsibilities for the audit and compliance sections during at least some intermittent periods between March and November 2004.
Appellant's time keeping sheets for this period do not accurately reflect the amount of time he spent performing duties relating to the audit function.
The STA was not called to testify.
VIII - STATE PERSONNEL BOARD SPECIFICATIONS
Business Taxes Compliance Supervisor
"[The] Business Taxes Compliance Supervisor classes [are] used for positions with professional, supervisorial, or managerial responsibilities in the State Board of Equalization business taxes compliance program.
. . . .
The Business Taxes Compliance Supervisors II and III are used in a supervisory capacity to direct one or more compliance programs. The Principal Business Taxes Compliance Supervisor manages the compliance staff support activities in Headquarters and develops and administers the State Board of Equalization's compliance policies, procedures, and programs.
. . . .
Under general direction, [the Business Taxes Compliance Supervisor III], either (1) plans, organizes, and directs the compliance programs and activities of a large organizational entity or (2) or in the headquarters, . . .[is] responsible for a statewide program, procedure development, or planning of compliance activities or (3) performs equivalent level supervisory or staff specialist work in headquarters.
. . . . (Jt. Exh. 1, p. 125-126.)
Business Taxes Administrator
"These classes are used for supervisory and managerial positions with responsibility for directing the operations of a Department of Business Taxes field facility or a major headquarters tax program involved in the administration of the Sales and Use Tax law, the Motor Vehicle and Use Fuel laws, and the various State excise tax laws.
. . . .
Employees in . . .[the Business Taxes Administrator III] class either: (1) under administrative direction from the Chief of Field Operations, manage, through multiple subordinate[s] the total (audit and compliance) tax program in a District Office comprised of 70 or more total staff including 40 or more professional staff; or (2) in a headquarters setting, function as one of the following: Assistant Deputy Chief, Business Taxes, Excise Tax Administrator, Assistant Chief of Field Operations, and Headquarters Operations Administrator." ( Jt. Exh. 1, p. 131-132.)
IX - 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. Section 19818.6 gives DPA the responsibility to "administer the Personnel Classification Plan of the State of California including the allocation of every position to the appropriate class in the classification plan."
3. Section 19818.8 prohibits a person from being assigned "to perform the duties of any class other than that to which his or her position is allocated" except as permitted by section 19050.8 that addresses temporary assignment or loan within or between state agencies.
4. Section 19818.16 sets forth the guidelines for review and payment of out-of-class claims:
"Notwithstanding Sections 905.2, 19818.8, and 19823, 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. The department shall award employee claims under this section for a period no greater than one year preceding the filing of a claim."
5. Section 19818.20 gives any employee affected by the allocation of his position "a reasonable opportunity to appeal" to DPA.
6. Subject to review by the SPB, an appointing power may make an emergency appointment for up to 30 working days. (California Code of Regulations, Title 2, section 302.2.)
7. The SPB may authorize an appointing power to make an emergency appointment on an acting basis to established positions for 20 to 60 working days based on a specifically identified and reasonable operating need that could not have been feasible met through use of other civil service or administrative alternatives. (California Code of Regulations, Title 2, section 302.3.)
8. DPA Rule 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."
9. 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."
10. DPA Rule 599.810 (4) (c) prohibits compensation for out-of-class assignments that last for 15 consecutive working days or less.
11. DPA Rule 599.810 (4) (e) permits an excluded employee to be assigned out-of-class work for more than 120 calendar days during any 12-month period "only if the appointing power or his or her designee files a written statement with the Department of Personnel Administration certifying that the additional out-of-class work is required to meet a need that cannot be met through other administrative or civil service alternatives." The out-of-class assignment is subject to termination by DPA upon finding reasonable alternatives to the out-of-class assignment.
12. DPA Rule 599.859 sets forth the grievance and appeal procedure for excluded employees. A grievance for out-of-class pay is subject to this grievance procedure.
13. DPA Rule 599.859 (d) establishes the parties' responsibility for responding to grievances:
"Standard Grievance Procedures. Each party involved in a grievance shall attempt to resolve the grievance promptly. Every effort should be made to complete required actions within the time limits contained in the grievance procedure. However, with the mutual consent of the parties, the time limit for any step may be extended.
(1) Formal Grievance-Level 1. A formal grievance may be filed no later than ten (10 [sic] work days after the event or circumstances occasioning the grievance. The first level of review shall respond to the grievance in writing within ten (10) work days after the receipt of the formal grievance.
(2) . . . .
(3) . . . .
(4) . . . .
(5) Formal Grievance-Level 3. The grievant may appeal the decision of the second level within ten (10) work days after receipt of the response to the appointing power or his/her designee. Within fifteen (15) work days after receipt of the appeal, the appointing power or his/her designee shall respond in writing to the grievance.
(6) . . . ."
14. The objective of statutory interpretation is to ascertain and effectuate legislative intent. (Kimmel v. Goland (1990) 51 Cal.3d 202, 208.)
15. To determine legislative intent, courts look to the language in the statute and give the words their usual and ordinary meaning. (Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 918.)
16. Where the words of the statute are clear, courts may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history. (Burden v. Snowden (1992) 2 Cal.4th 556, 562.)
17. The Legislature defined "shall" as mandatory and "may" as permissive (Gov. Code section 14.)
X - ANALYSIS
1. Does Section 19818.16 limit the period of review for out-of-class compensation to one year immediately before the date the claim was filed?
A statute must be interpreted to ascertain the intent of the legislature and that intent unfolds through interpretation of the words used in a statute. (Kimmel v. Goland (supra) 51 Cal.3d 202, 208.) All of the words of the statute must be considered and an interpreting court may not omit or insert words. (Burden v. Snowden (supra) 2 Cal.4th 556, 562.) Unless otherwise defined, the common use and definition of words is applied. (Merrill v. Department of Motor Vehicles (supra) 71 Cal.2d 907, 918.)
In Section 19818.16, the Legislature gave DPA's authority to (1) "review employee claims for additional reimbursement for the performance of duties outside the scope of their present classification" and to (2) grant out-of-class pay "for those duties." Through the use of the word "shall," the Legislature then limited DPA's ability to grant out-of-class pay for those duties "to a period no greater than one year preceding the filing of a claim." (Gov. Code section 14
DPA has traditionally viewed section 19818.16 in its entirety. It has reviewed only the one year period preceding the filing of the claim and granted or denied out-of-class pay based on that one-year period. This interpretation gives consistency and relevance to the statutory grant of the authority to review out-of-class claims, the statute's use of the words "for those duties," and the Legislature's limitation on DPA's ability to award reimbursement to "one year preceding the filing of the claim."
Interpreting the statute as permitting review of out-of-class claims for periods longer than one year before the filing of the claim strips the phrase "one year preceding the filing of the claim" of its relevance and would permit review of periods for which an employee cannot be compensated.
Furthermore, if the Legislature intended an employee be compensated for out-of-class work for any one year period or combination of periods that total one year before ("preceding") the filing of the claim, the phrase "preceding the filing of the claim" would be unnecessary. The statute would simply state, "The department shall award employee claims under this section for a period no greater than one year."
When reviewed and harmonized, the words of Section 19818.16 indicate a legislative intent to limit the review and reimbursement of out-of-class claims to one year immediately before the filing of a claim.
Appellant failed to prove by a preponderance of the evidence that the Legislature intended anything different.
Therefore, the relevant period for review of appellant's out-of-class claim begins on March 11, 2004, one year immediately preceding the filing of his claim. And, pursuant to appellant's amended appeal, the period of review ends on October 31, 2004.
Based on this period of review, it is unnecessary to address appellant's allegations that BOE improperly assigned him to an Acting DA position on a 15-day rotation from July 2003 through February 2004.
2. Did appellant perform the full range of BTA III duties for more than 50% of the time from March 11, 2004 through October 31, 2004?
Appellant was not assigned to the position of Acting DA from March, 2004 through October 31, 2004. However, on his own initiative and in order to fill a void left by BOE's failure to immediately assign administrative duties previously performed by the BTA III, the appellant and the STA independently continued to rotate responsibility for the administrative functions of the Acting DA position in March, April, May and June. After this, they accepted the responsibility for the administrative duties as required.
While the evidence is clear that the appellant assumed administrative responsibilities of the BTA III position for some intermittent periods from March 11 through October 31, 2004, and he was sent some inquiries regarding functions performed by the audit function, it was impossible to determine from the evidence presented that the appellant exercised the full range of responsibility of the BTM III position more than 50% of the relevant time period between March 11 and October 31, 2004. It was undisputed that the STA continued to generally direct the audit function and there was no reliable evidence that the appellant directed the STA on how to perform the audit function during this period.
Although the appellant presented various formulas creatively computing and interpreting the requirement that an appellant spent more than 50% of his time performing those duties of a higher class, he presented no legal basis supporting his interpretations.
The appellant failed to prove by a preponderance of the evidence that he performed the full range of the BTM III management responsibility from March 11 through October 31, 2004.
3. Should BOE be penalized for responding to appellant's grievance third level grievance 6 days late?
DPA Rule 599.859 does not provide a remedy for a late grievance response. Furthermore, the delay was short-6 days-and the appellant failed to prove any prejudice as a result of the late response.
XI - CONCLUSION
1. Section 19818.16 limits the period of review and payment for out-of-class claims to one year immediately before the date the claim was filed.
2. The appellant failed to prove he performed the full range of BTA III duties for more than 50% of the time between March 11 and October 31, 2004.
3. BOE will not be penalized for responding to appellant's third level grievance 6 days late.
ORDER
Appellant's appeal of DPA's preliminary denial of his March 11, 2005 out-of-class claim is denied.
* * * * *
FOOTNOTES
1. All references are to the Government Code unless otherwise indicated.
