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ATTACHMENT J FEBRUARY 12, 2018 TRANSCRIPT OF HEARING FOR ORAL ARGUMENT
ATTACHMENT J
FEBRUARY 12, 2018 TRANSCRIPT OF HEARING FOR ORAL ARGUMENT
BOARD OF ADMINISTRATION
CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM
In the Matter of the Calculation )AGENCY CASE NO. 2016-0211
of Final Compensation of: )
)OAH NO. 2016070010.1
ROBERT WOLF, )
)
Respondent, )
)
and )
)
CALIFORNIA DEPARTMENT OF FORESTRY )
AND FIRE PROTECTION, )
)
Respondent. )
__________________________________)
In the Matter of the Calculation )AGENCY CASE NO. 2016-0212
of Final Compensation of: )
)OAH NO. 2016061301.1
KENNETH L. HALE, )
)
Respondent, )
)
and )
)
CALIFORNIA DEPARTMENT OF FORESTRY )
AND FIRE PROTECTION, )
)
Respondent. )
__________________________________)
Office of Administrative Hearings
2349 Gateway Oaks Drive, Suite 200
Sacramento, CA 95833-4231
February 12, 2018
9:00 a.m.
Reported by: VICKI L. BRITT, RPR, CSR No. 13170
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A P P E A R A N C E S
ADMINISTRATIVE LAW JUDGE:
TIMOTHY ASPINWALL
2349 Gateway Oaks Drive, Suite 200
Sacramento, CA 95833-4231
FOR THE RESPONDENTS:
MESSING ADAM & JASMINE LLP
980 9th Street, Suite 380
Sacramento, CA 95814
(916) 446-5297
BY: LINA BALCIUNAS COCKRELL
FOR THE COMPLAINANT:
CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM
Lincoln Plaza North, 400 Q Street
Sacramento, CA 95811
(916)795-3675
BY: JOHN SHIPLEY, SENIOR STAFF ATTORNEY
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I N D E X
Page
Closing Statement by Ms. Cockrell 5, 47, 71
Closing Statement by Mr. Shipley 17, 63
Adjournment 75
Reporter's Certificate 76
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PROCEEDINGS
---oOo---
ADMINISTRATIVE LAW JUDGE ASPINWALL: We are on the
record in the matter of the calculation of final
compensation of Kenneth L. Hale and Robert T. Wolf. This is
OAH Case Nos. 2016070010 with respect to Mr. Wolf, and
2016061301 with respect to Mr. Hale, and this is a hearing
for oral argument in the matter of the hearing on remand.
I should note that these are consolidated cases.
Agency Case Nos. are 2016-0211, and that is with respect to
Mr. Wolf, and Agency Case No. 2016-0212 with respect to
Mr. Hale.
And may I have appearances of Counsel, please?
MS. BALCIUNAS COCKRELL: Good morning, Your Honor.
Lina Balciunas Cockrell appearing on behalf of the
respondents, and I am by myself this morning.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Okay.
MR. SHIPLEY: John Shipley on behalf of CalPERS.
I'm here with Dominic Trillo, who is an analyst with
CalPERS. He testified way back in the first hearing.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Okay. My
thought about proceeding today is for respondent bearing the
burden of proof to argue first, then to hear from the
CalPERS, and then any rebuttal argument. And, Mr. Shipley,
if you then feel you need to have rebuttal argument, I will
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allow that, but I will also allow respondents to have the
final argument today. But I'm willing to go back and forth
as many times as necessary for everyone to feel they've made
their points. Okay? So, please.
MS. BALCIUNAS COCKRELL: Thank you, Your Honor. I
think that we have established that this is likely a unique
situation in state service with respect to the positions of
president and rank and file director of CAL FIRE Local 2881.
They're really almost akin to exempt employees, even though
they are technically paid hourly because they are paid
according to the MOU, which is why in our remand brief, we
put forward the alternative hypothesis that perhaps their
group or class of employment might just be as a member of
Bargaining Unit 8, in that all the members of the Bargaining
Unit 8 are -- their compensation and their promotional
structure is set forth in the MOU, as well as the pay
differentials that Mr. Hale, Mr. Lopez and Mr. Edwards
testified to at the remand hearing.
Let me start at the beginning here. In addressing
the interpretation of the statutes by CalPERS, CalPERS is
correct that the state law requires deference to the
administrative agency's decision, but that's by the courts.
The courts are to give deference to the interpretation by
CalPERS, and particularly, in Bernard v. City of Oakland,
which was cited in PERS' brief. The Court makes references
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that it is the CalPERS' Board that is vested with all the
powers reasonably necessary to carry out the authority and
responsibilities.
And the CalPERS' Board had the opportunity to
accept Your Honor's decision the first go-round and rejected
it, so I think deference to CalPERS' interpretation, it's
significantly diminished, and that this is on remand, we are
carrying forth the same arguments and the same evidence, but
I think it requires a totally new look at the situation in
light of the new evidence as well.
So we have Government Code 20636(e)(1), which
divides the group or class of employment, and very little
authority interpreting it. And so as we argued it, it needs
to be governed by the plain language of the statute and
common sense, and that also goes back to the MOU, which
includes the pay structure, the promotional structure, and
as well, these other elements of pay that go beyond rank or
employment classification.
And CalPERS argued, first of all, that with
respect to the group or class of employment factors in the
statute, job duties, that Ken Hale and Bob Wolf have
distinctly different job duties as president and state rank
and file director. Well, that's not prohibitive of a group
or class of employment, and when you look at the ranks, even
within the same rank or employment classification, they have
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very different duties. And we heard Mr. Hale testify about
the difference between field battalion chiefs and
administrative battalion chiefs, and that he would have gone
back perhaps as a fire prevention officer, which is
different than a battalion chief that runs the stations and
goes out to emergencies. That, also, he was a member of law
enforcement. He could have been an arson investigator or
something along those lines. So he certainly would not have
had as a battalion chief in the field unit the same
responsibilities as a battalion chief overseeing a group of
stations. So it can't be the fact that the duties have to
be identical because that's already been proven not to be
the case. And I think the distinction is that Mr. Wolf and
Mr. Hale had similar, although not identical, duties as
distinct from the rest of the battalion chiefs who were out
working as firefighters.
Also, Mr. Lopez testified to different, not only
in responsibilities and duties but in pay, between a fire
captain A and a fire captain B, and I can never keep them
straight, but I believe the B captains are the ones that
work in the fire camps, and they actually get a pay
differential because they do so, or it's the other way
around.
For the work location possibility of a group or
class of employment, CalPERS argued that it was not a
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requirement to work out of Sacramento. Well, this is
another thing that makes Mr. Wolf and Mr. Hale distinctly
different and unique from the other battalion chiefs in
working out in the regular firefighter units. Mr. Hale
testified that as a battalion chief, he would be assigned to
a unit, and his previous unit before being elected was
Nevada/Yuba/Placer, and he would remain in the confines of
his unit unless he was sent out on an all hands on deck
fire, and that's on page 61 of the transcript.
Well, Mr. Wolf and Mr. Hale were required to work
sort of, not only wherever the job needed them to be, they
worked out of the union's headquarters in Sacramento. They
worked out of their homes and everywhere in-between
depending on where they were called. And CalPERS states in
its brief, just as a clarification, that they were assigned
in their union officer positions to CAL FIRE's headquarters
office. It's actually the unit. It's the CAL FIRE's
Sacramento headquarters unit, which is one of the 21 units
in CAL FIRE. Just as Mr. Hale testified that he would have
gone back to Nevada/Yuba/Placer, Mr. Edwards is out of the
Riverside ranger unit, and I believe Mr. Lopez testified
that he was also out of the Nevada/Yuba/Placer unit as well.
And then CalPERS does go back to the collective
bargaining unit possibility, and essentially makes the same
argument that we made; the group or class of employment
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could theoretically be Bargaining Unit 8. And it's
interesting that CalPERS doesn't really address the pay
differential argument because it is clear that, based on the
MOU, there are pay differentials that are pensionable, that
apply across the ranks. And Mr. Hale and Mr. Lopez and Mr.
Edwards testified that they all three received longevity pay
and the educational incentive, even though Mr. Edwards is a
fire apparatus engineer by rank, and Mr. Lopez and
Mr. Hale were battalion chiefs.
It doesn't make sense to say that you can only be
a member of the battalion chief group when you can receive
the same pay differentials that a fire captain could; yet,
another battalion chief may not have the longevity to
receive the longevity pay and is not under the same pay
structure.
So there has to be some flexibility to the group
or class of employment, or we go back to the big pool of
Bargaining Unit 8 and say it that way. Now, CalPERS makes
the argument that the cash out can't be pensionable as a pay
differential, unlike longevity and education, because
there's only a finite number of people who can be union
officers, the two union officers. However, that really is
no different, except maybe the number, than the other pay
differentials that are available in the MOU and expressly
pensionable. And Mr. Hale testified, and it's page 48 of
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the transcript, that he kept receiving longevity and
education because those did not go away, was the way he
phrased it, when he was elected into his office, but that
for the other differentials, you need to hold a specific
position in order to get that pay.
So for paramedics, you have to be in a paramedic
position in order to get longevity pay, and there are a
finite number of paramedic positions. Not everybody can be
a paramedic. Hazmat, bilingual, an HFEO, passenger
endorsement, those require earning the specific position in
order to receive that pay differential. It's no different
than the union officers who were required to earn their
position as union officers to receive the holiday pay cash
out. And I believe they both testified -- both Mr. Wolf and
Mr. Hale testified in the first hearing that they did not
see it as a benefit they were required to cash out but more
as an obligation, unlike perhaps the other pay
differentials.
So before I leave the group or class of employment
argument, it's either the big pool of Bargaining Unit 8
where you can find everything, or as we set forth in our
brief, there has to be some flexibility as you go down the
line; Bargaining Unit 8/rank/longevity/education/union
officer, or paramedic/bilingual/longevity/education, all of
those can cut across rank lines, and to just say that it is
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that the group or class of employment is limited to rank,
one, is contrary to the language of subsection (e)(1) that
mentions nothing about rank, and even refers to the general
other logical group-related working, and it also doesn't
take into account that there are different ranks that
receive the same pay differentials. So we believe there has
to be some flexibility for that requirement, the group or
class of employment requirement, of an item of special
compensation being pensionable.
But, of course, that's not the only requirement,
so then we get into section 571(a)(5), and when you look at
the language, the plain language says, employees who are
normally required to work on an approved holiday, because
they work in positions that require scheduled staffing
without regard to holidays, again, with the derth of
authority, I guess you do wind up scrutinizing every little
thing, and perhaps to the extreme, but when you look at the
language, it says, employees who are normally required to
work on an approved holiday. It doesn't say you have to
work every holiday. It doesn't have to say you are always
required. And we cited the case law, the City of Oakland,
Fremont v. Board of Administration and Rose v. City of
Hayward, that the unified factors seem to be that the
employees were required to work on holidays. And, again,
there was no mention that it had to be every holiday, but
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working on holidays was a requirement of the job.
And that came from, in the case law their position
as police officers, public safety personnel, and it was
notable in Rose v. City of Hayward that the court based its
reasoning on the administrative rule that all police
officers are regularly required to work on holidays, which
then brings us back to the Bargaining Unit 8 MOU, which
assumes that Bargaining Unit 8 members are going to be
required to work on holidays at one point or another because
it does not give them the regular state or federal holidays.
It gives them whatever it is, ten or twelve floating
holidays, to use at their discretion, and, in fact, they can
only be forced to use them if the location where they work
is closed on a holiday, and, then, even the language just
says, they may be forced to use the holiday. And given the
72 hour shifts, just from a numerical basis, it's unlikely
that every firefighter is going to have to work every
holiday.
So the position of the union officers is unique,
again, because their schedule wasn't written out, and
there's no -- I can't find any authority that says that it
has to be. And both we and CalPERS made the argument that
the necessity of a written schedule is to let the employee
know when they're working; to let the other employees know
when the first employee will be working; and to know who can
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fill in where, and I believe as CalPERS cited, what needs to
be done. Well, none of that needed to be written down for
the union officers because they knew they had to be working
all the time. Everyone knew they had to be working all the
time. Mr. Hale, Mr. Wolf, Mr. Lopez, and Mr. Edwards
testified that the members, CAL FIRE, and the different
state agencies expected the union officers to respond when
they called no matter what day it was. So it wasn't a
question of, oh, is President Wolf working today? We're
having a problem. It is, we're having a problem. We need
President Wolf. And it's different than -- it's not
overtime. There was testimony they weren't allowed to earn
overtime, and it's not standby pay because they didn't
receive standby pay, and they weren't necessarily on
standby. It was more akin to being on duty at the station,
and sometimes you get called, and sometimes you don't, but
you're still on duty and required to be ready to respond.
There's nothing in the statute, section 571, or
the case law, that says there has to be a written schedule.
All the questions are answered just by the intensity of the
position. As CalPERS said, without the information of a
written schedule, one would not be able to readily ascertain
who was supposed to work, when they were supposed to work,
and what they were supposed to do. Well, we can answer
those questions without the need for a written schedule.
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Who was supposed to work? Mr. Hale and Mr. Wolf. When were
they supposed to work? All the time; whether it was in
their office in Sacramento, in their offices at home, out at
accident responses, up and down the state for bargaining.
And what were they supposed to do? They were supposed to
fulfill the rolls and requirements of their respected
positions. And as Mr. Hale said, even though there might be
statutory or MOU requirements for the time to respond, any
time a member called them, it was for an emergency, an
emergency to that member.
CalPERS argued that the distinction was that if
either Mr. Hale or Mr. Wolf was not available to work,
simply waited until they were available, but Mr. Hale
actually testified that the few times that he was not
available to take a call, Mr. Wolf would cover him, and vice
versa. And there were certain things -- for example,
Mr. Hale testified that he would not respond to the
political issues that came down to Mr. Wolf, perhaps from
the Governor's office, but those were the exceptions not the
norms, and, again, it goes back to the fact that their
positions were not identical. So they can largely cover for
each other, or at least be the fallback, in the case of an
extreme emergency, but that they were the ones primarily
responsible for their positions, and that's why they had to
work all the time.
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So if you go back to the plain language of Section
571(a)(5), and the interpreting case law, the union officer
positions fulfill those requirements. They were normally
required to work on approved holidays because they worked in
positions that required scheduled staffing. They had to be
available, and they had to be ready to respond. And the
frequency and the regularity in which they did is what
separates the situation from an on-call position, certainly
such as the City of Pleasanton case, where the fire division
chief was paid solely for a 40 hour workweek. There was no
evidence that he worked beyond that time, unless he was
specifically getting paid overtime, and it was only
occasionally that he got called out on holidays for which
he was paid standby time, and so this is not that situation.
This is a regular course of duties in which our union
officers were required to work, and it was on-call holidays.
So that is our position. We think that this does
require stepping outside the norm a bit, but we're not
stepping outside the intent and the purpose of the PERS'
benefits. It's not giving arbitrary flexibility to one or a
limited sector of the public employees. The cash outs have
been in the MOU now for almost 20 years. They are part of a
written labor agreement. They are publicly available. They
go just to the two union officers who earned those
positions, which anyone in the bargaining unit is able to
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earn those positions, and it is all within the intent of the
pension law. It all fits within the intent of the pension
law, even if it is not the typical, shall we say, public
employment position.
ADMINISTRATIVE LAW JUDGE ASPINWALL: What do you
say the intent of the pension law is, that this is
consistent with the intent?
MS. BALCIUNAS COCKRELL: To prevent pension
spiking. In the Prentice case, they talk about -- the Court
talks about having the flexibility to single out preferred
employees over other similarly situated employees sort of
arbitrarily in a -- I don't know if it's a criminal matter.
I don't know pension law that well. But in order to prevent
one employee from being able to arbitrarily have
significantly greater pension benefits than another
similarly situated employee -- so it's not that CAL FIRE can
say, hey, we like Mr. Wolf and Mr. Hale. We're going to
give them this money, and they can derive pension benefits
from it; it's we decided, and we negotiated it into an MOU,
that this holiday pay would be cashed out yearly. And as
you can see, there's no requirement that the union officers
retire from their positions. Mr. Wolf and Mr. Hale did.
You can see how the work kind of sucks the energy out of
them by the end of their term. But the idea is that they
could theoretically go back to a unit and be firefighters
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again. And the cash out provision in the MOU seems to
recognize that they're going to be doing a lot of work.
They're not going to be able to be taking vacations and
holidays, and CAL FIRE doesn't want them to have these giant
leave balances when they return to their units. So, again,
it's all very regimented. There's no discretion, actually,
much to the union officers dismay. The cash outs are
mandatory. They have to be done yearly. They can't be
saved up and put at the end for pension spiking. They're
not singled out based on who they are. It's based on the
position, which is no different from any other pay
differential, and those are the core requirements of the
pension law, and the union officers fit in those
requirements.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Thank you.
MR. SHIPLEY: I think I'll start with the courts
have said that they afford great weight to CalPERS'
interpretation of the CalPERS' statutes of the PERL. And I
don't think that there's a requirement that it has to have
been a decision by the board, and the case law -- the City
of Pleasanton is one of the cases, the City of Sacramento
case as well. They both discuss the actions of CalPERS'
employees and their determinations, so I think that weight
should be is given to CalPERS' interpretation of its own
statutes and regulations. In this case, even though the
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board differential has not issued a final decision as of
yet.
Second, I think I would go back to what the board
remanded this case for, and, essentially, they asked two
questions. The first one was whether the members' actual
job duties constitute their own group or class of
employment. We don't have the opportunity to ask the board
what exactly they meant by that, but it seemed to be saying,
you have these two people that are in unique positions, that
have somewhat unique job duties, and does that require us to
find that they are their own group or class of employment
because of that, and CalPERS' answer to that is, no, you
have to look at all of the factors that are provided for in
Section 20636(e)(1), and then make a reasonable
determination based on all of the factors in evidence.
And then, additionally, this court, Your Honor
asked us to, I guess through briefing at the end, the
factors identified by CalPERS in making a group or
classification of employment decision and the weight given
to each factor, and I think we addressed that in our closing
brief on remand, and we've had other briefings and other
hearings. But what I want to say to that is I think it's
clear that CalPERS isn't, at least in my opinion, isn't
taking kind of some ridiculous argument that there's no
question about whether this is a unique situation, or this
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is a situation that requires kind of additional analysis.
It's clear that they do have unique job duties, and I think
it wouldn't be unreasonable for somebody to say those unique
job duties would require a finding that they are a separate
group or class. And I think the same thing with job
location, where this is not a typical state job for sure,
where you have people who are working primarily out of a
union office. So I think, of course, you have to look at
those two factors, and those two factors would be somewhat
on the side of, yes, they would be their own group or
classification of employment.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Which two
factors?
MR. SHIPLEY: The job duties and the work
location. But that's not the only factors that are cited in
the statute. They also discuss bargaining unit and then
other reasonable ways to group people. So when looking at
the totality of the evidence in this case, they're clearly
part of the same bargaining unit. They're Bargaining Unit
8, which covers the uniform employees for CAL FIRE.
And then what I think ended up being -- especially
given the uniqueness of this situation -- is another logical
work-related grouping, and with the way CAL FIRE is set up,
and the way the employees are ranked and a lot of their
benefits, can be based on their rank. Their pay rate is
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obviously based on their rank. That ended up being a unique
situation looking at it. The kind of weight went to that
makes more sense to have them kind of in their group or
class based on their rank with CAL FIRE, then in the
alternative, having the unique subsection group of two
individuals who are their own group or class of employment.
So --
ADMINISTRATIVE LAW JUDGE ASPINWALL: I'm not sure
I follow your sequence of thought and your last paragraph or
so.
MR. SHIPLEY: So one of the other -- subsection
(e)(1) says that one of the other ways to look at a group or
class is other logical work-related grouping. And CAL FIRE
being the type of organization it is, it's different than a
lot of other state agencies in that they do have these ranks
of employees, firefighter I, firefighter II, firefighter
apparatus engineer, battalion chief. So when CalPERS is
looking at what group or class to base CAL FIRE employees,
or these Mr. Hale and Mr. Wolf in particular, they look at
what do those ranks do? Those ranks determine their pay
rate. They determine what benefits they receive, and that's
all spelled out in the bargaining unit as well, what their
benefits are, what their rights are as employees. It's all
based on their Bargaining Unit 1 and 2, their rank within
the bargaining unit. So given the fact, yes, it's unique
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that they are handling the job duties for the union instead
of actually fighting fires. They're in a different role in
that respect, but overall, looking at all of the evidence,
when they're part of a bargaining unit, when they're a
certain rank within that bargaining unit, what their rights
are as employees, what their benefits is as employees, when
they're paid as employees, is based on that rank. That's
where CalPERS determined that that's the most logical way to
group them as a group or a class of employment.
As we pointed out in our brief, and as was
discussed and testified to at the hearing, the rank is also
important within the CAL FIRE MOU because when it discusses
out of class pay, the pay differential for out of class,
when they talk about classification and that, the testimony
was, well, it's typically rank. Now, there might be, as
Counsel for the union officers indicated, there might be
a -- what was it -- fire captain A, fire captain B, but,
typically, the way that the MOU even discussed
classification was by rank. It's if you're going to work
instead of a firefighter II, you're working as an extended
period of time as a fire apparatus engineer, as a fire
captain, you get paid additional, and that's because you're
in a different classification, and the meaning of
classification according to the testimony was rank. So that
also would support that CAL FIRE itself and the MOU views
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these different positions based on, at least primarily,
based on rank when looking at an out of class type pay
differential.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Are you using
the word "classification" differently than class?
MR. SHIPLEY: I think -- well, the PERL looks at
classification of employee. I think the MOU talked about a
different class for the pay differential, so if you're
working out of class. And in that situation, it was
basically if you're working in a different rank. So it gets
a little bit confusing in this case because you do have a
lot of times people referring to rank and classification
kind of in synonymous terms. We would agree to the extent
that we say that the group or class of employment would be
equal to the rank. I don't know if that I answered your
question.
But, essentially, my argument would be that the
MOU itself would essentially stand for the class of
employment. The out of class employment was by working in a
different rank of employment, which would support that even
the MOU itself would be a class of employment as equal to
the individual's rank.
ADMINISTRATIVE LAW JUDGE ASPINWALL: So for
someone to be eligible for special compensation, that
compensation must be available to all similarly situated
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members of a group or a class; how do you categorize the
group or class of Mr. Wolf and Mr. Hale?
MR. SHIPLEY: I would think that they would be
part of what their rank was, and so --
ADMINISTRATIVE LAW JUDGE ASPINWALL: In Bargaining
Unit 8?
MR. SHIPLEY: In Bargaining Unit 8. The rank
obviously changed for them because they both promoted during
the time they were on full-time leave. And so -- and
longevity pay and education was an example that was given as
a type of pay differential. And every battalion chief would
be eligible to receive a longevity pay differential as long
as they meet the requirements.
Similarly, I think for the education pay
differential, all of the battalion chiefs would be eligible
to receive as long as they meet the requirements of that pay
differential. The same thing for a fire captain or a field
apparatus engineer; if you meet the requirements of
longevity pay, if you meet the requirements of the education
pay, then you receive that pay differential. So, in this
case, the testimony from Mr. Hale, I think from Mr. Edwards
and Mr. Lopez, was that they received those pay
differentials during the entirety of the time they were on
pay leave. They continued to receive them, even though they
got promoted. So they're not limited just because they're
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of a certain rank. It's the requirements of every fire
captain and field apparatus engineer to be eligible for
longevity pay; the same thing for a battalion chief. And I
think that's what separates those pay differentials being
available to everybody in a group or class, or, similarly
situated with the holiday buy downs or cash outs, where it's
a requirement and there's only two people.
And the argument can be made, and was made, that,
well, everybody would be could be a union officer, if, I
guess, if they wanted to be; however, it's limited to only
two people. Whereas, with education or longevity, as long
as you meet the requirements, everybody is eligible for it.
ADMINISTRATIVE LAW JUDGE ASPINWALL: What prevents
Mr. Wolf and Mr. Hale from being looked at as the only two
members of the group or class of their rank within
Bargaining Unit 8 who are, quote, similarly situated?
Follow my question?
MR. SHIPLEY: What prevents them from being the
only two that -- basically, I think what you're asking is
what prevents them from being a group or class of two?
ADMINISTRATIVE LAW JUDGE ASPINWALL: Well,
Government Code Section 20636(c) limits special compensation
to similarly situated members of a group of class, so I'm
not necessarily asking about whether they should be
considered a group or class of two, but, rather, whether
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there's anything preventing them from being considered as
two similarly situated employees within the larger group or
class? If there's something that -- and I haven't seen that
analysis directly addressed that I recall.
MR. SHIPLEY: I think, and this is one of the
other points, I think -- I'm not trying to not answer the
question, but I think it goes to, yes, you could say that
they are similarly situated, but --
ADMINISTRATIVE LAW JUDGE ASPINWALL: By virtue of
their union office?
MR. SHIPLEY: Right, by virtue of their union
office. But, then, I think you would -- what I was going to
get to is, I think in the Prentice decision, the argument
was, well, Prentice has kind of confused things, and I don't
think Prentice at all confused things. Prentice states that
we do not believe, that for purposes of applying the
limitations on compensation earnable set forth in the PERL,
P-E-R-L, an employee may be a member of more than one group
or classification, and, then, of course, compensation
earnable is both pay rate and special compensation. So I
think you could find that they are similarly situated, and
that they're eligible to receive the holiday cash outs, and
that everybody that is similarly situated receives those
because the two of them are unique in that they're the only
two employees that are on leave. But I think that requires
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then a finding that they are their own group or class
because if you don't make that finding that they are their
own group or class, then you're back to the situation of
they're the only two people in their group or class who
receive those items of special compensation.
ADMINISTRATIVE LAW JUDGE ASPINWALL: And that is
prohibited under what provision?
MR. SHIPLEY: 20636(e)(1), but then, also, I think
it's also provided under Regulation 571(b), which limits
special compensation to all similarly situated employees.
ADMINISTRATIVE LAW JUDGE ASPINWALL: To that which
is available to all similarly situated employees?
MR. SHIPLEY: Correct. I think 20636(g)(1) also
discusses compensation earnable means the average monthly
compensation as determined by the Board upon the basis of
the average time for the members in the same group or class
of employment.
So I think -- so I guess I would say, I agree that
if you find that they're similarly situated, and that that
is kind of determinative to them being in their own group or
class, then these would be items that would potentially
qualify, but then, as I argued, then you have to get to
meeting the requirements of the specific items.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Under 571?
MR. SHIPLEY: Under 571. And so --
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ADMINISTRATIVE LAW JUDGE ASPINWALL: But I'm
asking a sort of different question than has been analyzed
to this point, and that is, can these two employees be
looked at as similarly situated within a larger group or
class, such that they would qualify for the benefit in
question, when no other employees in the larger group or
class do qualify for that holiday buy back being considered
as compensation earnable? Do you follow the point I'm
asking about?
MR. SHIPLEY: Right, and I think for it to
qualify, I think it has to be available to all members of
the group or class, and perhaps opposing Counsel can help.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Well, to my
understanding -- I can just go get a copy of the PERL, and
maybe you have it with you -- I don't know if you have it.
But special compensation is limited to that which is
received by a member pursuant to an agreement with respect
to similarly situated members of a group or class. So the
question is what to make of that phrase "similarly situated"
within a group or class.
MR. SHIPLEY: And I, unfortunately, did not bring
my copy of the PERL, but I believe that it still requires
there to be a requirement that it's available to all members
of a group or class, and so unless -- I think it would be
difficult to find that you're providing this type of --
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you're saying this is allowed because they're similarly
situated without also finding them to be their own group or
class of employment.
ADMINISTRATIVE LAW JUDGE ASPINWALL: You're saying
that -- are you reading the statute right now?
MR. SHIPLEY: I am. Opposing counsel was nice
enough to provide me with it.
I think I understand what you're saying, and,
again, I'm here to try to be reasonable. I can see your
argument -- not argument. I can see your point.
ADMINISTRATIVE LAW JUDGE ASPINWALL: It's a
question I'm asking you to address.
MR. SHIPLEY: And I think the similarly
situated -- I guess I would argue, or I would provide, that
I still believe that the similarly situated members of a
group or class, and then the way the group or class is then
defined after that section means a number of employees
considered together, that you have to go back, and it really
has to still be their own group or class because I think
what you're looking at was subsection (c)(2); is that
correct? 20636(c)(2)?
ADMINISTRATIVE LAW JUDGE ASPINWALL: Yes.
MR. SHIPLEY: So that discusses the similarly
situated, and, then, later on, in subsection (e)(1) is when
they define a group or class of employment. It's my
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argument -- I guess my argument would be the similarly
situated means that group or class of employment. So
without a finding that they are their own group or class,
they would still be violating the requirement that it be
available to every member of the group or class, which is
also, as I indicated, one of the criteria for Regulation
571(b).
ADMINISTRATIVE LAW JUDGE ASPINWALL: So are you
saying that to be similarly situated for the purposes of
qualifying for the special compensation, as compensation
earnable, that the employees that the term similarly
situated means that they are in the same group or class, or
requires that they be in the same group or class, and, if
so, what's your statutory authority for that?
MR. SHIPLEY: My argument would be that -- again,
I think you have to look at all of the factors. And, so,
just because they're similarly situated doesn't necessitate
a finding that they are in the same group or classification,
but that you have to look at all of the factors provided in
20636(b)(1).
ADMINISTRATIVE LAW JUDGE ASPINWALL: That doesn't
respond to my question. Can you respond to my question?
MR. SHIPLEY: I guess I'm not quite following the
question. Can you restate it?
ADMINISTRATIVE LAW JUDGE ASPINWALL: So are you
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arguing that, quote, similarly situated, close quote,
employees must necessarily be of the same group or class of
employees, all of whom are eligible for the same special
compensation? That is, rather than -- well, I think my
question is unclear.
Are you saying that for two, quote, similarly
situated employees to be eligible for a certain special
compensation that all of the employees of that group or
class must also be eligible for the same special
compensation? Is that clear?
MR. SHIPLEY: I think, yes, that for an item to be
allowed, it has be to be available to all similarly situated
employees.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Okay. Well,
that -- my question is getting to the point -- getting to
the issue of whether there can be a subgroup of similarly
situated employees within a larger class? Not a distinct
class, but a subgroup within a class? And is there anything
in law that prevents that?
MR. SHIPLEY: I don't think there's anything --
the only law that we really have is the Prentice decision,
which basically says you can only be in one group or class.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Right, we
know that. That's a different question than whether a
couple of employees can be in a similarly situated situation
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within a group or class. Because the statute refers to
similarly situated employees within, indicating a subgroup,
a group or class, right? What do you make of that statutory
language when asserting that the employees must be of their
own group or class in order to qualify for the special
compensation that they alone seek?
MR. SHIPLEY: I think -- and I really am not
trying to not answer. I think the way I interpret this, to
similarly situated employees of a group or class, to me,
that is referring to people or employees who have similar
skills, knowledge, ability, work assignment, and, so, if --
and like I discussed, longevity, pay or education
differentials -- so within the group or class, if you have
people who do qualify for longevity or do qualify for
education, then they're entitled to receive the special
compensation because they do have special skills, knowledge,
abilities, work assignments. So I think you could, and as
opposing counsel indicated in their brief, you could have a
rank and then pay differential, so I guess if that's a
subsection of that group or class, you could have a
subsection, but they would have to -- of a group or class,
but they have to be in only one group or class. So I guess
you could maybe make the -- you can come to a conclusion,
and I'm not indicating that you're making the argument, but
I guess the argument could be made that if you look at the
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work that the union officers did as special skills,
knowledge, ability, work assignment, then, again, I guess
you can come to the conclusion they're similarly situated
for that particular work assignment, and so that they could
be, again, a subsection of -- I hesitate to say subsection
because then if they're a subsection, they're essentially
their own group or class.
ADMINISTRATIVE LAW JUDGE ASPINWALL: So to your
thinking, what does the phrase "similarly situated" mean?
MR. SHIPLEY: It would be employees who have
similar skills, knowledge, abilities, work assignments. So
it's basically saying that special compensation includes
payment for those items, and then it would be within, let's
just say battalion chief. Both Mr. Hale and Mr. Wolf were
similarly situated because they both had the same, not the
same years of credit, but they had enough years of service
to qualify for longevity as an item of special compensation.
So in that instance, they're similarly situated with respect
to how long they've provided service for CAL FIRE. The same
with education; they're similarly situated because they have
an educational level that would entitle them to a pay
differential based on their education. So I think the
similarly situated would be the employees that meet those
qualifications, or that have the -- I don't want to keep
repeating -- but have the skills, knowledge, abilities, work
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assignments. That would qualify as a type of special
compensation.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Would their
responsibility as union officers be another category of
their similarly situatedness?
MR. SHIPLEY: Yeah, of course. I think that's
where I would say their job duties are different. And I
think if there was an item of special compensation that
related to -- they're somewhat unique, but there's other --
at least my understanding is there's other state employees
who are union officers, who are on full-time leave, and so I
think if there was an item of special compensation that said
that you're entitled to a pay differential or special
compensation based on being a union officer, then, of
course, that would be an item that they would qualify for.
Again, it wouldn't be unreasonable or an absurd
position that based on the uniqueness of their situation
that they're on full-time leave, attending to union duties.
As I said, I always try to be reasonable and take reasonable
positions, and I think CalPERS does the same. That wouldn't
be an absurd conclusion that that requires a finding that
they are their own group or class.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Well, rather
than their own group or class, how about if they are looked
at as similarly situated within the group or class? And
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qualifying for benefits when no one else does within that
group or class?
MR. SHIPLEY: And I think that's, again, where you
have to look at the specific items of special compensation.
So when you look at the list in 571, the exclusive list, it
has specific items that are based on a skill. You're really
good at target shooting, or, you know, there's different
skills that you receive for or knowledge, bilingual pay,
education, work assignments. If you're on patrol for safety
officers, you get a special benefit.
So I think to reach the determination that based
on being on leave that they're two similarly situated
members, I think the special compensation would have to be
specific to their duties as union officers and not -- and
then that would be more reasonable to find that they're a
subsection. That they're similarly situated members of the
group or class that we would say, and that they're the only
ones that qualify for those items because they are the union
officers, who are attending the union duties. I think that
would be a reasonable kind of finding that they're similarly
situated within the group for that item of special
compensation. But, here, when you look at similarly
situated members, again, you can find that because their
duties they are, but then that has to, I think, link back to
the specific item of special compensation, and, here, it's
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not related to the union officers; it's related to holiday
cash outs, holiday buy-downs.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Was part of
your reasoning that the -- is part of your argument that
Mr. Wolf and Mr. Hale are similarly situated as far as the
employer goes, as far as CAL FIRE goes, only in so far as
they are on leave and not by virtue of their union work
while on leave?
MR. SHIPLEY: I think it's both. I mean, they're
similarly situated because they are on leave, but then the
job duties that they're performing while on leave, although
not identical, and as opposing counsel indicated, you know,
the specific duties that each of them perform were -- again,
they're similar in that they're supporting the union, but
they're different in that the job duties Mr. Wolf performed
were sightly different than Mr. Hale.
Again, you can, of course, say that, yes, they're
similarly situated in that they're the only two CAL FIRE
employees who are on leave, and that they're the only two
CAL FIRE employees who are on a full-time basis, essentially
performing duties that support the union, as opposed to
duties directly associated with fighting fires or responding
to emergency situations.
ADMINISTRATIVE LAW JUDGE ASPINWALL: And were you
saying earlier that you don't think it would be unreasonable
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to reach a conclusion that these two, by virtue of their
similarities, could be looked at as a group or class of two?
MR. SHIPLEY: Yes, that's what I said. I think it
wouldn't be unreasonable. It wouldn't be an absurd
conclusion. But I also think that, and that was our
position, this is the CalPERS' determination, that that
would be a reasonable conclusion probably, but I think it's
also --
ADMINISTRATIVE LAW JUDGE ASPINWALL: So far you've
been arguing against that.
MR. SHIPLEY: Because I think when you look at
the -- and this is where you look at are they of the same
bargaining union? Or is there other work related, and
that's -- work-related group? And, here, because their pay,
because their benefits, because their rights are more tied
to the fact that they are battalion chiefs with CAL FIRE,
that that supports a finding that it's more appropriate to
put them in a group or class of employment of battalion
chief with CAL FIRE, where you're covering all of the people
who are of the same rank, as opposed to group or class of
two, of just the two on leave union officers.
Essentially it's -- if you think about how much am
I getting paid, when am I getting paid, what are my pay
differentials going to be, what are my rights as an
employee, what are my other benefits, they changed based
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on -- not at all based on the work they were doing for the
union. They didn't change over time because of what they
were doing for the union. They changed over time based on
what was in the MOU for Bargaining Unit 8, and,
specifically, what did it say as to a battalion chief? I
think Mr. Hale testified that his pay, his scale, as a
battalion chief, when he was kind of promoted, he had to
promote to a certain level because he had to get that pay
differential, so that's all based on what his rank was. It
had nothing to do with the job that he was performing for
the union on leave.
So when you look at those factors, when you look
at that, CalPERS made the determination it makes more sense
to put them in a group or class with the other people that
are battalion chiefs, other people that are fire captains,
than to view it as their own group or class of employment.
ADMINISTRATIVE LAW JUDGE ASPINWALL: So you're
saying it would not be unreasonable to conclude that they
were their own group or class of two? But it's more
reasonable to find them, and Mr. Hale and Mr. Wolf, that
they were a group not of two but of the larger Bargaining
Unit 8? Battalion chiefs in particular?
MR. SHIPLEY: Yes, because that's what they both
retired as, battalion chiefs. Although they both came in as
different ranks.
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ADMINISTRATIVE LAW JUDGE ASPINWALL: But I'm still
not clear on your response to the statutory question of
whether Mr. Hale and Mr. Wolf can be considered as two
similarly situated employees by virtue within the group or
class of battalion chiefs in Bargaining Unit 8, who qualify
for certain special compensation by virtue of their
particular situation within that bargaining unit, within
that group or class?
MR. SHIPLEY: Again, I'm obviously not explaining
myself very well. I think they could be considered
similarly situated within -- we'll just say the CAL FIRE,
battalion chief group or class, they could be considered
similarly situated. And if the item of special compensation
was related to that -- similarly situatedness is maybe not a
word, maybe it is -- then --
ADMINISTRATIVE LAW JUDGE ASPINWALL: It's one I
made up.
MR. SHIPLEY: Well, then, I'm going to use it too.
If the item of special compensation was related to that
similarly situatedness, then that would be something -- I
think we would probably have reached a different
determination.
ADMINISTRATIVE LAW JUDGE ASPINWALL: What would be
an example of a relationship between the item of
compensation and the specific situation? Some skill or
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ability?
MR. SHIPLEY: Right. And as I said --
ADMINISTRATIVE LAW JUDGE ASPINWALL: Do you have
authority for your argument that the item of special
compensation must be related to the situation?
MR. SHIPLEY: I think it would mainly just be the
statute. How it basically says a special compensation
includes payment received for that.
ADMINISTRATIVE LAW JUDGE ASPINWALL: For what?
MR. SHIPLEY: For special skills, knowledge,
abilities, work assignment, workdays or hours, or other work
conditions.
ADMINISTRATIVE LAW JUDGE ASPINWALL: What
subdivision are you reading from?
MR. SHIPLEY: That's 20636(c)(1). This says that
the special compensation is payment for -- I don't want to
keep repeating things -- but for that. So all of the items
of special compensation in 571(a) relate to either a skill,
a knowledge, an ability.
And so, in this situation, the item of special
compensation they're seeking, the holiday cash out, I don't
think it's related to their position -- it's not something
that -- it's not related to the union. It's related to
having to work on holidays. And so, I guess my example, my
argument would be that if there's an item of special
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compensation that rewarded high-ranking members of unions,
because you could easily say there's special skills or
there's special work for being a high ranking union member,
then that's where the similarly situated employees here,
Mr. Wolf and Mr. Hale, would be entitled to that special
compensation related to a high ranking union position.
But, here, I think -- and maybe this is the way I
look at it at least -- the CAL FIRE employees that are
entitled to the holiday pay are entitled to it because
they're similarly situated in that they are required to work
on holidays. That they're in positions that require
staffing.
And I think Mr. Hale provided the example of that
with his position prior to taking on the union officer role
in that if he's scheduled to work, somebody has to work that
day. Somebody has to be there. And so if he, for whatever
reason, was not able to work, they would ask for a volunteer
to work, and if there's no volunteer, the person who's
currently working doesn't get to leave. So I think that
that's -- the similarly situated would be those individuals
who are in positions where they're required to work;
whereas, Mr. Hale and Mr. Wolf, there was nothing that said
they're required to work on holidays. We're not arguing
that they have to be required to work on every holiday, but
you have to be in a position that requires staffing on
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holidays regardless of the holiday.
ADMINISTRATIVE LAW JUDGE ASPINWALL: I sort of
diverted you from the main course of your argument, so you
might want to pick up where you left off.
MR. SHIPLEY: I guess I'll just briefly -- well, I
think I started by talking about -- the question on remand
from the CalPERS' board was whether this classification
should determine whether the pay at issue meets the
definition of holiday pay of regulation 571(a)(5). And,
here, we would say just because they're classified in a
certain way, whether it's rank group or class, that's not
the determination on itself. You have to look at the actual
item of special compensation. You have to look, does the
member meet the requirements of that item? Just because
they're a battalion chief doesn't mean that they
automatically get holiday pay. You have to make sure
they're a battalion chief that fulfills the requirements of
holiday pay.
Again, they're in somewhat of a unique position
that, although they are battalion chiefs, they're on leave,
and so they're not in a position that requires scheduled
staffing regardless of whether it's a holiday or not.
ADMINISTRATIVE LAW JUDGE ASPINWALL: So now you're
analyzing the 571 issues or arguing the 571 issues?
MR. SHIPLEY: A little bit, if that's okay?
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ADMINISTRATIVE LAW JUDGE ASPINWALL: That's fine.
MR. SHIPLEY. Well, I think -- again, I think your
last question of would it be reasonable to say that they are
their own class or group of two? Yes. I think it's also
very reasonable to say they're not. And I think it's
probably agreed that if you find either they're their own
group or class, or somehow they're eligible because
everybody's eligible, you still have to analyze the specific
item of compensation by itself. And this is not -- again,
this is not a situation where we're just looking at
scheduling. Is there a schedule? We're looking at the
regulation definition for holiday pay, and there seems to
be --
ADMINISTRATIVE LAW JUDGE ASPINWALL: Well, that's
571(a)(5), which says holiday pay.
MR. SHIPLEY: Correct.
ADMINISTRATIVE LAW JUDGE ASPINWALL: And includes
in it a requirement for, quote, scheduled staffing, close
quote.
MR. SHIPLEY: Right.
ADMINISTRATIVE LAW JUDGE ASPINWALL: So what other
item of that holiday pay definition is in dispute, if any?
MR. SHIPLEY: I think it's somewhat disputed of
whether they were required to work.
ADMINISTRATIVE LAW JUDGE ASPINWALL: In what sense
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do you use the word "requirement"?
MR. SHIPLEY: I think it's in the sense that
there's essentially no option; they have to work. And,
here, you know, there was limited examples of -- I think,
again, it was Mr. Hale who was talking about having a
Thanksgiving party, where he had a bunch of people over, and
he had no intention of working that day, but something
happened, so he responded.
And I think one of the other examples for him was
he went to maybe a training in Hawaii, and he was going to
take some vacation, I don't know if those were on holidays
or not, but I don't think you can say that if they happen to
be on a holiday, if you're required to work, you're having a
party with a bunch of people for Thanksgiving, or you're on
vacation in Hawaii -- I've never been in a position that you
can say I'm required to work 24 hours a day, seven days a
weak, but, yet, I'm able to take a vacation.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Well, let's
take the example that was provided in testimony, and I
forget whether it was Mr. Hale or Mr. Wolf, but the
testimony was that he was having a Thanksgiving dinner, and
a call came in, and he needed to respond to that call. I
don't remember the reasons why he needed to respond to that
call, but the perception that he had was that he needed to
respond to that call. Is that a fair characterization of
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his testimony? That this call was something he needed to
respond to?
MR. SHIPLEY: I think that's a pretty fair
characterization of my recollection of his testimony. I
think the only difference, or the only distinction I would
say is that most of the testimony, or I think all of it,
when asked why they needed to respond, it was more because
the constituents kind of expected that, so I think there's a
difference in constituents kind of expecting you to be
timely in your response versus a requirement that you be on
duty to answer that phone. And I think that's where in
examination, when discussing, well, if you're on an airplane
what would happen if somebody's calling you? Well, they
wait until you can respond. And I think there was some
testimony about -- especially, I think, with maybe personnel
issues, that you have to respond within 72 hours.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Well, the
union president, as I recall, has responsibilities to
respond to management on some things; whereas, the rank and
file, as I recall, usually would respond to other members of
the rank and file. Are -- so when you say that the union
officer was required to reply to constituents, are you
making a distinction between the president and the head of
the rank and file?
MR. SHIPLEY: I think both of them essentially
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testified that they felt it was kind of their obligation to
be available because they wanted to serve their constituents
as best they could, and they saw that as part of the -- that
they needed to be available, but I think the -- so I think
both of them made that as kind of what they viewed. But I
think it's a difference in -- and, again, this would go back
to kind of Mr. Hale talking about what it was like when he
was not on leave, when he was at a station, and it's not
because the constituents expect me to be there to respond,
so I have to kind of do it. There's a requirement that that
position has to be staffed. Somebody has to be there.
And, so, if for whatever reason, the person who is
supposed to work on Tuesday doesn't show up, then the person
who's there on Monday has to stay and work Tuesday. So I
think that's where the required to work is -- I think
there's probably -- I believe there's a dispute as to
whether they were required to work versus they were either
on duty, or they chose to make themselves available because
that's what their constituents believed.
I think the main thing with respect to the -- in a
position that requires staffing is -- to accept their
characterization of the jobs and their argument, you have to
basically accept that these two individuals worked 24 days
a, 7 days a week, 365 days year, and I think as Mr. Hale
joked, 366 on a leap year. And I don't think there's
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evidence to support that they were required to work every
single hour, of every single day, throughout the year for
10 years.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Was there
evidence that they needed to be available at any time, which
would amount to 24/7/365?
MR. SHIPLEY: I think that would go back to what I
was just saying. I think there's evidence that they felt
they should be available, but there was nothing that --
there's nothing that says they had to be available. There's
nothing in an MOU. There was no evidence in the union
bylaws, or anything that was presented, that would say they
had to be available 24/7.
And I think when you take kind of a step back and
you think about it, what they're really describing is, if
nothing else, it's more they were on-call or on duty.
On-call, in that if there's nothing that comes up, they
would receive the call, and that's significantly different
than actually working 24 hours a day, 7 days a week, 365
days a year for 10 years.
So I think -- the case law cited regarding holiday
pay and these issues, there's no real -- those are clearly
positions, law enforcement and fire, where people have to
be -- they have to be there. There has to be someone there,
and so they don't get into what's a schedule because it's
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clear, just as Mr. Hale testified, there's a schedule. Your
name's there. You have to be there, and if you don't show
up, then somebody else has to cover, and I just don't think
that the evidence would support that these two positions
require scheduled staffing year-round.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Okay.
Anything else?
MR. SHIPLEY: I don't think I have anything else,
Your Honor.
ADMINISTRATIVE LAW JUDGE ASPINWALL:
Ms. Balciunas, I assume you'll have some rebuttal argument?
MS. BALCIUNAS COCKRELL: I do, but not very
lengthy.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Let's take a
ten minute break.
(A recess was taken 11:35-11:47 a.m.)
ADMINISTRATIVE LAW JUDGE ASPINWALL: Back on the
record after our morning recess, and, Mr. Shipley, have you
concluded your argument subject to rebuttal argument?
MR. SHIPLEY: Yes, Your Honor.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Do you have
rebuttal argument, Ms. Balciunas Cockrell?
MS. BALCIUNAS COCKRELL: I do, Your Honor. Thank
you. I have really been giving consideration to your
question of whether it could be possible to have the special
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compensation apply to two similarly situated employees
within the larger group or class, which does beg the
question of why the statute is written the way it is because
it is written the same in both places; both for pay rate and
for special compensation.
Starting with Government Code Section 20636(b)(1),
"Pay rate means the normal monthly rate of pay or base pay
to a member paid in cash to similarly situated members of
the same group or class of employment." And then
20636(c)(2), "Special compensation shall be limited to that
which is received by a member pursuant to a labor policy or
agreement to similarly situated members of a group or class
of employment."
So I think that begs the question of if the group
or class of employment is determinative, why doesn't it just
say so? Why doesn't it just say, special compensation shall
be limited to that which is received by a group or class of
employment or is available to all members; to all members of
a group or class of employment, not to similarly situated
members?
And with the canons of statutory construction
applying those, that the legislature said what it meant and
meant what it said, that does seem to compel the conclusion
that the group or class of employment is broader than we are
giving it credit to be, and we being both the respondents
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and CalPERS, and allows for pensionable -- both elements of
pay rate and of special compensation within two similarly
situated members within that larger group or class of
employment, but they don't have to be all the same in the
group or class of employment, which is about the only way
you can account for the applicability of pay differentials.
And, again, because the statutory language is the
same, I will go back to Government Code Section 20636(b)(1),
and talk about pay rate because as Mr. Hale did testify at
the remand hearing -- and this is page 65 in the
transcript -- he was asked, "After being promoted to
battalion chief, are there different pay levels within the
rank of battalion chief?" "There are steps," he said. And
then the reference is back to the MOU. "I think in the MOU,
there are performance salary adjustments; is that correct?"
"Correct. Those are the steps we're talking about."
And as it goes down page 65 and page 66, Mr. Hale
references that he was placed in a mid-range step as a
battalion chief so that he would be eligible for salary
increases pursuant to the MOU in that step. In other words,
battalion chiefs don't all get paid the same way. So if we
are limiting our definition to group or class of employment,
we can't account for the differences within that group and
class of employment.
So the same, I would think, has to be said for
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special compensation. Not everyone in your group or class
of employment is going to receive longevity pay. They all
haven't been working that long. But similarly situated
members of that group or class of employment are eligible to
receive longevity pay; that is members who have been working
for whatever it is, at least 10 or 15 years. Similarly
situated members of the group or class of employment of --
and, again, I believe it's the bargaining -- I'm getting
more convinced that it's the bargaining unit is the
appropriate group or class of employment here -- are
eligible to receive the paramedic pay differential because,
one, they earned the certification to be a paramedic; and,
two, they work in jobs that require a paramedic license.
That could be a fire apparatus engineer. That could be a
fire captain.
ADMINISTRATIVE LAW JUDGE ASPINWALL: So just to
pick up on a parenthetical remark you made. How do you
define the group or class? What do you think the group or
class is? Mr. Shipley says the relevant group or class
would be battalion chiefs within Bargaining Unit 8. What do
you say it would be and why?
MS. BALCIUNAS COCKRELL: And originally during his
argument, I agreed with him, but I'm backing it out because,
again, you can have pay differentials that cross ranks. I
think it goes all the way back to the MOU because even as
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Mr. Shipley said, the --
ADMINISTRATIVE LAW JUDGE ASPINWALL: You think the
group or class is Bargaining Unit 8 as a whole?
MS. BALCIUNAS COCKRELL: The bargaining unit
because even as he said, the pay and the compensation
changed over time based on what was in the MOU for
Bargaining Unit 8, so that's where everything seems to
return is to the MOU for guidance on what the similarly
situated members are, what the pay rate is, what the
elements of special compensation that are available to the
members are. And it's the only thing that accounts for the
same elements of special compensation being available across
the ranks, such as longevity, paramedic, education
incentive, because you either wind up with a bunch, I mean a
lot of very detailed groups or class of employment. That
Joe Smith is a fire captain, paramedic, with longevity and
education, and fire captain A, but Bob Jones is a fire
captain B with a hazmat, and so everyone has to be
distinguished that way, or you say, no. The common
denominator is that they're all part of the same bargaining
unit. They're all governed by the same publicly negotiated
memorandum of understanding between their union and the
state, and then within that, you have the similarly situated
members, and I don't think that's contrary to Prentice
because the issue in Prentice was that the respondent
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there -- or it turned out to be the petitioner when he got
to court -- had received a 10.49 percent step increase that
nobody else got, and to the extent where the city told PERS
that it had not decided whether Prentice's successor would
receive the increase. So there was no one similarly
situated to Mr. Prentice. And that was how the court was
able to determine that there had to be one group or
classification because, one, they weren't dealing with all
these pay differentials, and, so, I'm not sure that we can
fully compare Prentice to our situation. But, again, the
court reasons that, more importantly, the alternative
classification scheme Prentice asserts would be inconsistent
with what we received as the central role of the limitations
on compensation earnable, to wit, preventing local agencies
from artificially increasing a preferred employees
retirement benefits by providing the employee with
compensation increases, which are not available to other
similarly situated employees. So that logic clearly applies
here.
We have a provision in the MOU that was bargained
for and agreed to between the union and the state for these
cash outs. It is available to the two similarly situated
employees, and if you want to go by the logic of the
statutory scheme, Government Code Section 20636(e)(1)
specifically states that one employee may not be considered
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a group or class. Now, we've been using that to say that
Mr. Hale and Mr. Wolf or the union officers would be a group
or class of two. I think you can also use that rationale to
say that if you're going for similarly situated, you should
have at least two people. You can't be similarly situated
by yourself.
And I think that's the only analysis that counts
for all the different elements of special compensation that
are expressly pensionable but are not based on rank, and it
also accounts for the statutory language that does not
determine special compensation for pay rate on group or
class of employment, but rather similarly situated members
of a group or class of employment.
ADMINISTRATIVE LAW JUDGE ASPINWALL: So the cash
outs are provided for in the MOU, but the MOU does not
determine whether those cash outs are pensionable, correct?
MS. BALCIUNAS COCKRELL: No, and that's
unfortunate because there are certain MOU provisions, and
especially in other bargaining units, that expressly
designate pensionability, and I think that is something that
could have been clarified and saved all this. But then,
again, I think it also either shows the assumption that as
holiday pay, it would be pensionable, or it just wasn't on
the minds of the negotiators at the time.
Counsel made mention to the cash outs not being
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related to the union but being related to having to work on
holidays, but the mandatory relinquishment of the leave
credits is expressly related to their positions as union
officers because no one else is required to cash out their
leave credits. They can accrue them to a greater extent.
There is only so many that can be rolled over. I think it
is six. But no one else is required to cash them out on a
yearly basis, and that is part and parcel of their position
as union officers.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Do you see
the question of whether Mr. Hale and Wolf are similarly
situated on one hand versus whether Mr. Hale and Wolf are
members of a class of two to be different questions that
would be analyzed differently?
MS. BALCIUNAS COCKRELL: Yes, I think they are
different questions to be analyzed differently because the
problem with Mr. Hale and Mr. Wolf is that they were both
the same rank in their union.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Is the
threshold different? Are there different threshold
determinations to find someone similarly situated versus of
their own class of two? Are there different criteria to
meet?
MS. BALCIUNAS COCKRELL: Well, I think the natural
inclination is to start broadly and narrow in, so we start
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with the bargaining unit, and then we go into rank or
classification, and then we go the other elements of their
compensation. And I guess the only reason it matters is if
we are trying to make a determination of whether something
is pensionable. It's not like they have to register, you
know, CAL FIRE has to register the group or class of
employment. It just seems like if we're getting into these
little nitty gritty details that Mr. Wolf a Bargaining Unit
8 battalion chief with longevity pay, educational pay, but
fire captain Jim is a Bargaining Unit 8, fire captain A
paramedic, bilingual, it seems like a lot of work to try and
isolate each person by virtue of their specific situation
and then group them all together. Group all the fire
captain, paramedic, educational, bilinguals, and say, okay,
well, we have more than one, so they can be their own group
or class of employment. I guess there's no reason why we
can't say that. And it is consistent -- I mean, then it
does lend towards the interpretation that the special
compensation has to be available to -- or has to be
received, not even available, received by all members of the
group or class of employment. But I'm not sure that the
plain language of the statute compels that.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Go ahead.
MS. BALCIUNAS COCKRELL: And I think it goes to
the question of when Prentice says that -- when the court in
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Prentice says, "We do not believe for the purposes of
applying the limitation on compensation earnable an employee
may be a member of more than one group or classification,"
what does that mean? It was very easy in Prentice because
they were dealing with a pay rate increase that was not
given to anybody else.
It's a tougher question here to try to establish
when you're talking about a much more narrow definition of
what the group or class of employment may be or a much more
detailed definition. And I guess that's why I just keep
going back to the bargaining unit. It's easy. It's across
the board. It's governed by all the factors, which when you
look at the factors, even in Section 571(b), you know,
contained in a written labor policy, duly approved and
adopted by the employer's governing body in accordance with
the requirements of applicable public meeting laws, and then
getting into the more -- it's all laid out on the table.
There's nothing sneaky or arbitrary or singularly pointing
out one employee. It's a group or class of employees that
will live on past the departure of Mr. Hale and Mr. Wolf, as
we heard from the testimony of Mr. Lopez and Mr. Edwards.
That does bring us to the issue of scheduling, and
my problem with CalPERS' position on scheduling is it
basically requires or limits the holiday pay as being
pensionable to those working in lower rank and file
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positions, that have supervisors and written schedules and
rotations; whereas, Mr. Hale and Mr. Wolf testified that not
only do they not have a supervisor of the union, they don't
have a supervisor at CAL FIRE. They don't have a supervisor
within the state. So their positions are largely akin to
exempt employees; whereas, they have to get the job done,
and they are required to work when they are required to
work. And they know that based on, as Mr. Hale and
Mr. Lopez and Mr. Edwards testified, learning from their
predecessors of when they were required to work, and
learning from experience as to how they get the job done.
And Counsel made several references to the
expectations of the members, but the testimony went beyond
that. That it was the expectation of CAL FIRE. That it was
the expectation of multiple government agencies. That when
the phone rings, Mr. Hale or Mr. Wolf answer it, and that
they couldn't just say, I'm sorry. We're having 20 people
over for Thanksgiving. I'm not working right now.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Let's assume
that the need to respond is for all practical purposes a
requirement to respond, and focus on the distinction between
something that is akin to being on-call versus actually on
duty. So I appreciate your thoughts on where the situation
of Mr. Wolf and Mr. Hale falls with respect to the
distinction between being on-call to respond, as required,
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versus being on duty, and if that distinction is meaningful?
MS. BALCIUNAS COCKRELL: Well, the distinction is
meaningful within the PERL because on-call pay is -- I
believe my understanding of on-call pay is not pensionable.
ADMINISTRATIVE LAW JUDGE ASPINWALL: But I'm
looking at the definition in 571.
MS. BALCIUNAS COCKRELL: Right. Again, it's
easier with the lower rank and file positions, and I think
that's what CalPERS is holding onto. If you're on duty,
you're at the station. If you're on duty, you're at the
office for these positions. If you're on-call, you're at
home, where you will perhaps be needed, perhaps you will not
be needed. You can go to your son's baseball game and
safely assume that there could be times where you get to sit
through the whole game, but also be prepared that you might
be called out the first five minutes you're there. The
problem with the union officer's position is two-fold: One,
they worked out of their homes.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Well, were
they on-call, or were they on duty every holiday?
MS. BALCIUNAS COCKRELL: They were on duty every
holiday because they were working in a regular work
location. They all testified that they regularly worked
from their homes, as well as the union headquarters, as well
as up and down the state, and they all testified that the
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demands of the job were such that they regularly got calls
on holidays. They were expecting to receive calls on
holidays, and they were expected to respond to calls on
holidays, on a regular basis, not a sporadic, maybe/maybe
not basis. It's almost the reverse of being on call. When
you're on-call, you're home, and you're thinking you might
get called out. For the union officers, they are thinking,
well, maybe we'll survive a day without getting called, but
more likely than not, we're going to get called. We're
going to have something we have to respond to, and if my
wife chooses to have 20 people over for Thanksgiving, it's
at her own peril because I just may not be there. As
Mr. Hale testified, about the year they did have a
significant party, and he was on the phone for eight hours.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Do you think
the distinctions between being on-call and on duty matters
with respect to the definition under 571?
MS. BALCIUNAS COCKRELL: Yes, because I hold onto
the City of Pleasanton decision, where the fire division
chief was required and expected to work 40 hours during his
workweek, and that was set forth to him as part of the
position, and they said he would occasionally get called
out, and I believe it was occasionally -- and I'm trying to
find the language -- and occasionally, that time that he got
called out was on holidays. The City of Pleasanton also
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noted that he did not receive special holiday compensation
because he was instead paid standby pay, so they clearly
expressed that it was standby pay versus holiday pay;
whereas, the cash outs are expressly for holiday leave
credits. And maybe it's a bureaucratic distinction, but
that's what we've got for authority, at least at the moment.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Well, let me
ask the question more pointedly. If Mr. Wolf and Mr. Hale
are most reasonably considered to be on-call during
holidays, would they qualify under the definition of Section
571?
MS. BALCIUNAS COCKRELL: You know what, Your
Honor, I don't know that off the top of my head I know the
answer to that. I am -- give me 30 seconds. I have one
place I know where to look. I have one place that I can
maybe come up with a quick answer; otherwise, I'll concede
that I don't know.
Well, it says in City of Pleasanton --
ADMINISTRATIVE LAW JUDGE ASPINWALL: You don't
necessarily need to read it to me.
MS. BALCIUNAS COCKRELL: Okay. Under CalPERS'
regulations, standby pay is not included as one of the extra
pays on which final compensation is to be based for
retirement benefit purposes. Unfortunately, I have not
looked comprehensively into the issue, but I don't want to
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talk myself out of it.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Standby pay
is different than the holiday pay?
MS. BALCIUNAS COCKRELL: Yes, and Mr. Shipley may
be able to have a better knowledge of this.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Go ahead.
MS. BALCIUNAS COCKRELL: I thought I can come up
with more law, but I don't think I can. Maybe it's just a
connotation, but --
ADMINISTRATIVE LAW JUDGE ASPINWALL: Under what
case is standby pay not pensionable?
MS. BALCIUNAS COCKRELL: I'm reading from the City
of Pleasanton v. Board of Administration, 211 Cal.App.4th
522, on page 540, and that was in 2012, but, again, that
could be very narrow.
ADMINISTRATIVE LAW JUDGE ASPINWALL: But in any
event, you argue that Mr. Wolf and Mr. Hale were not
on-call; they were on duty?
MS. BALCIUNAS COCKRELL: Yes, on-call and standby
connotates occasionally; whereas, on duty is consistent, and
you're expecting it. It's going to happen. It's not a
maybe. It will happen, and every once in a while, you may
get lucky and it doesn't. But --
ADMINISTRATIVE LAW JUDGE ASPINWALL: Do you have
any real authority to support your argument on this point?
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MS. BALCIUNAS COCKRELL: None whatsoever, Your
Honor, and like we said in our brief, a lot of this is just
dictated by, well, it makes sense, especially given the
demands of the job and the expectation that they do be
available to respond, and it is not just to the members, to
the state, to the other governmental agencies.
As Mr. Hale testified, part of his duties as the
state rank and file director was to supply an accident
investigation team immediately, and, so, that -- that is not
a when we get there; that's we're here and ready for the
call because we're on duty, and we're expecting the call.
It's an easier distinction to make when you have
lower level employees with supervisors and written schedules
and rotating staffing, but there's nothing in the law that
says that this is not available to the upper level
employees, who essentially work as exempt employees. I
mean, obviously, Mr. Hale and Mr. Wolf are not exempt
employees, but it's the same idea of making your own
schedule, getting the job done, working when the job
requires that you do so, even if someone is not watching you
clock in and clock out. And, unfortunately, the best
example I can give is when I go on vacation next week, I am
going to be required to do some work, even though I don't
have anything in writing that says that I am.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Okay.
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MS. BALCIUNAS COCKRELL: And I think that's the
extent of our position. At least that's the extent of my
notes.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Mr. Shipley,
any reply?
MR. SHIPLEY: I just want to touch on a couple of
things real quick. One of them is 20636(c)(3). We
previously, I think, discussed subsections (c)(1) and
(c)(2), but (c)(3), essentially -- it basically says -- does
say, special compensation shall be for services rendered
during normal working hours, and then when reported to the
board, the employer shall identify the pay period in which
the special compensation was earned.
Here, and this again goes to if you're going to
say that it's allowed, you essentially have to come to the
conclusion that the normal working hours for Mr. Hale and
Mr. Wolf was 24 hours a day, seven days a week, 365 days
year, and I think that's not a reasonable interpretation of
what their actual work was based on the evidence.
The other section that I wanted to just point
out -- it was kind of discussed as far as whether standby
pay and 20636(g)(4)(I), says that compensation for
additional services outside regular duty, such as standby
pay, is not included as special compensation.
ADMINISTRATIVE LAW JUDGE ASPINWALL: (g)(4)(I),
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let me just get it.
What happens if part of the regular duty is to be
standing by during holidays to respond to emergencies? As
you have argued, they were standing by rather than on duty,
but they obviously did this on a regular basis.
MR. SHIPLEY: I think if it's standing by, then I
think it's not included as -- it's not allowed as pay rate
or special compensation.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Well, read
the sentence, "Compensation for additional services outside
regular duties, such as," in other words, for example,
"standby pay, call back pay, court duty," and so forth. So
these are examples of things which are outside regular
duties, but are they -- are those types of duties, such as
standing by, invariably outside the regular duties even if
the employee's position requires as a major component that
they be standing by?
MR. SHIPLEY: I think standby pay would be outside
of your normal workload, so if you're normally working 40
hours a week, then standby would be something that you're
receiving outside of that, so it's not part of your normal
work hours.
ADMINISTRATIVE LAW JUDGE ASPINWALL: But let's
look at the situation of Mr. Wolf and Hale. Are they
normally working 40 hours a week?
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MR. SHIPLEY: I think they were compensated as if
they were working 72 hours a week. I don't know if we have
evidence that would show exactly how much their typical
workweek was.
ADMINISTRATIVE LAW JUDGE ASPINWALL: We don't.
MR. SHIPLEY: I would say we don't. So, again,
that goes back to -- if you're to conclude that -- you would
have to essentially conclude that they were working 24 hours
a day, seven days a week, because special compensation is
only for your normal working hours.
So I think -- and then holiday pay, I think also,
you're regularly scheduled staffing. So for the fire
fighter who's scheduled to work on that holiday that is
their normal workday. They work three straight 24 hours,
and so that would be their normal work day. I think standby
pay, and the case law that discusses -- to the extent there
is any discussion -- it's somebody who normally works 40
hours, but, then, would also be on standby in the event that
they did not need to work more.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Right. I
understand, but their situation is not typical.
MR. SHIPLEY: I totally agree, and that's why I
would come back to, I think, for them to fit what the
special compensation for holiday pay is, you would
essentially have to conclude that their situation is one
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where they're on duty all hours, every day of the year, and
I think that the evidence from Mr. Hale was that may be half
the time he worked on holidays, or he worked on weekends. I
think he said that was a pretty fair representation of how
much he worked. He would get calls half the time. So are
you considered normally working regular hours when you're
basically working half of those days, not the full day, but
just half of those days?
ADMINISTRATIVE LAW JUDGE ASPINWALL: Okay.
MR. SHIPLEY: And then the only other thing -- it
kind of goes hand in hand within 20636(g)(4)(H). It
essentially says, you're not entitled to pay rate. Special
compensation did not include payment for overtime. So,
again, if the holiday cash out is viewed as because they're
working outside of their normal hours, essentially overtime
on those days that they have to work, the holidays, then if
that's viewed as overtime, then that's another item of pay
rate or special compensation that's not allowed.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Anything
else?
MR. SHIPLEY: One last citation, because I
referenced it but didn't provide the specific, was the
regulation 571(b)(2), and that's the -- 571(b) contains the
criteria that all of the listed items of special
compensation include, and (b)(2) is the one that indicates
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that it's available to all members in the group or class.
And I don't want to get us back to where we were a couple
hours ago, but I would argue that --
ADMINISTRATIVE LAW JUDGE ASPINWALL: All similarly
situated members?
MR. SHIPLEY: It just says, all members in the
group or class, so I think that's where I see the
distinction. And when I referenced -- I think Your Honor
had asked for authority, or whether it's a similarly
situated group or class, so that's where I was indicating
that 571(b), I believe, supports the finding that it's not
just all similarly situated members of a subgroup or
subclass, but it's actually available to all members in the
group or class.
ADMINISTRATIVE LAW JUDGE ASPINWALL: And you would
define the group or class as battalion chiefs in Bargaining
Unit 8?
MR. SHIPLEY: When they promoted to that position.
I think the evidence is that -- I think all of the union
officers who testified have all promoted during their on
leave status, but, yes.
ADMINISTRATIVE LAW JUDGE ASPINWALL: How about
prior to their promotion?
MR. SHIPLEY: Then I think they would have been a
group or class of the lower rank that they were, and I
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always get these confused, so I can't remember if fire
captain is the one before you promote to -- I think it's
fire captain. It could be field apparatus.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Going back to
20636(c)(1). You were making the point in your earlier
argument that this listed a series of duties which weren't
necessarily related to the specific situation of Mr. Wolf or
Mr. Hale as union leaders, and referenced certain, you know,
criteria, such as work assignment, and skills and so forth,
and talked about certain distinguishing features, such as
whether someone that qualifies as a paramedic, or longevity,
but don't some of these items listed in (c)(1) reasonably
apply to their situation, such as work days or hours?
MR. SHIPLEY: Yes, and work assignment.
ADMINISTRATIVE LAW JUDGE ASPINWALL: So your
argument, as I understood it, was that if they had -- and
we're talking about their being similarly situated with each
other, as distinct from others in the class or group, that
the basis for finding them similarly situated did not relate
to items in (c)(1)? That's at least how I understood your
argument, and maybe I misunderstood your argument.
MR. SHIPLEY: I think the argument I was trying to
make is that, of course, their work assignment -- they're
similarly situated as to work assignment; possibly even work
day or hours. However, the type of special compensation
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that they're seeking to have included is not related to
being -- they're seeking to have special compensation for
working on holidays, but I think the basis for them being
compensated for working on holidays is because of being on
leave. I'm not explaining this well.
Most of the items of special compensation, when
they talk about similarly situated, the items of special
compensation is related to how the people are similarly
situated. So, for example, paramedic pay, a paramedic
differential, and so the members of Bargaining Unit 8, who
are entitled to that pay differential, are similarly
situated in that they all have the necessary education, or I
think even the license to be considered a paramedic.
And, here, if there was an item of special
compensation related to being a union officer, I would say
the fact that they're similarly situated because they're on
leave as union officers would entitle them to receive that
special compensation. But the item of special compensation
has nothing to do with being union officers, or the work
assignment as union officers, in that they're performing
work associated with the union.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Well,
doesn't -- they're similarly situated as union officers.
As union officers they're required to -- at least the
argument goes -- they take calls on holidays, and they are
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seeking compensation. They're seeking to have their
compensation for holiday pay be pensionable. So, in effect,
they are seeking compensation for one of the things that
makes them similarly situated. Do you disagree with that?
MR. SHIPLEY: I don't disagree with that.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Then am I
missing your point again?
MR. SHIPLEY: I think the holiday pay is for --
and maybe this goes back to do they meet the requirements of
holiday pay? And I think for that, you have to be in a
position that requires scheduled staffing. So what I'm
saying is, they're not in a position that requires scheduled
staffing, and --
ADMINISTRATIVE LAW JUDGE ASPINWALL: But that's
different than the point you were arguing before?
MR. SHIPLEY: Right.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Or it's a
different point than you were arguing before?
MR. SHIPLEY: Yeah, maybe a different point. But
I think that when you're looking at similarly situated,
they're similarly situated in that they're on leave. And
maybe I've argued against myself here, and I should have
never brought up any of the other statutes, but I think when
you look at how special compensation is defined, again, the
item -- I guess you can make the connection, and you did,
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that the holiday cash outs are based on being a union
officer on leave, so in a way, they are based on that work
assignment.
And then you get into, I guess, if they're the
only two people who are receiving that, is everybody in the
group or class eligible? I guess there's not enough
guidance in the case law to help guide us clearly to the
answer to all these questions, but I think my overall kind
of point, and especially bringing up those statutes, is that
you really have to -- for it to be special compensation,
it's supposed to be normal working hours. And, so, for you
to reach the conclusion that this special compensation is
part of their normal working hours, you essentially have to
conclude that their normal working hours was 24 hours a
days, seven days a week.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Anything
else?
MR. SHIPLEY: No.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Any final
words?
MS. BALCIUNAS COCKRELL: I'm not sure that you
have to make that conclusion that it was 24/7/365, although
I know Mr. Hale and Wolf wanted to make sure that you knew
that they worked that much because they did work very hard
during their terms.
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The statutory language makes reference to regular
duties and required duties, so if we look at 20636(g)(4)(I),
it says, compensation -- in precluding standby pay, it says
compensation for additional services outside regular duties,
such as standby pay. So that would infer that if you're
doing your regular duties, that would not be standby pay,
regardless of where and when you're doing them.
And the when part being essential to the
uniqueness of the position. That they didn't have -- they
largely determined their own schedules based on their
required duties. And, again, required duties comes up in
the statutes, and I believe it's 20636(e)(3)(B),
notwithstanding subdivision (c), special compensation for
state members shall mean all of the following: Compensation
for performing normally required duties, such as holiday
pay.
The overtime and the outside of the regular work
hours, essentially -- the example would be the -- I don't
know what you would say. The administrator who works a nine
to five, 40 hour a week, and then does paperwork at home on
the weekend, it's clear what the shift is and that this is
extraneous to this. The union officers, because of the
demands of their job, because of their normally required
duties, because of the demands of public safety, which is
largely why the holiday pay is in there in the first place
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with the case law regarding the police officers, that
emergencies happen on hours and off hours as well, that
there are no off times for emergencies. So is it
unreasonable to assume that if Mr. Hale was up all night
putting together an accident investigation team, you know,
he slept in and didn't -- if he was still in bed, but when
the first call came at 10:00, is he shirking his duties? Is
he not on duty? I think that's part of the flexibility, or
not the flexibility, the fact that the positions were
unique. They had their schedule, and their schedule
involved getting their required duties done, not watching a
clock and punching in and punching out as CalPERS appears to
be requiring.
And my only other point is I do see the language
of 571(b)(2), and I think it is in conflict with
20636(c)(2).
ADMINISTRATIVE LAW JUDGE ASPINWALL: What do you
make of that?
MS. BALCIUNAS COCKRELL: Well, the statute would
supersede the regulation, especially because it is a statute
and because it is more detailed. So the fact that the
20636(c)(2) specifies similarly situated members of a group
or class of employment should supersede the more general
regulation, that seems to maybe, possibly require that the
special compensation be available to all members in the
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group or class, or in the alternative, then we go back to
the union officers being their own group or class, which
they can be because they are two or not one.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Anything
further?
MS. BALCIUNAS COCKRELL: No, Your Honor. Thank
you.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Mr. Shipley?
MR. SHIPLEY: Unless you have any questions?
ADMINISTRATIVE LAW JUDGE ASPINWALL: I have no
more questions, other than whether -- and I think your
answer will be no -- but I'll offer you the opportunity for
further briefing on items that were not previously briefed,
but were the subject of extensive discussion today.
MS. BALCIUNAS COCKRELL: No, thank you, Your
Honor. My only thing I was going to look into was the
standby pay, but Mr. Shipley cleared that up quickly.
MR. SHIPLEY: I don't think so, Your Honor.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Then argument
being complete, no requests for further briefing, the record
is closed, unless either of you have items that you want
admitted into the record at this point?
MS. BALCIUNAS COCKRELL: No, thank you, Your
Honor.
MR. SHIPLEY: Nothing, Your Honor.
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ADMINISTRATIVE LAW JUDGE ASPINWALL: So the record
is closed, and the matter is submitted?
MR. SHIPLEY: Yes, Your Honor.
MS. BALCIUNAS COCKRELL: Yes, Your Honor.
ADMINISTRATIVE LAW JUDGE ASPINWALL: Then we're
off the record.
(The matter concluded at 12:45 p.m.)
---oOo---
DIAMOND COURT REPORTERS (916) 498-9288
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CERTIFICATE OF SHORTHAND REPORTER
I, Vicki L. Britt, Certified Shorthand Reporter
and Registered Professional Reporter of the State of
California, do hereby certify that I am a disinterested
person herein; that I reported the foregoing hearing in
shorthand writing; that I thereafter caused my shorthand
writing to be transcribed into typewriting.
I further certify that I am not of counsel of
attorney for any of the parties to said hearing, or in any
way interested in the outcome of said hearing.
IN WITNESS WHEREOF, I have hereunto set my hand
this 13th day of March, 2018.
/s/ Vicki L. Britt
__________________________________
VICKI L. BRITT, RPR, CSR No. 13170
DIAMOND COURT REPORTERS (916) 498-9288
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