Issue: Qualification, Compensation/Leave: Salary Disputes, Ruling date July 12, 2001; Ruling #2001-025; Agency: Department of Correctional Education; Outcome: Not qualified: Notification from grievant of intent to appeal with Circuit Court.

QUALIFICATION RULING OF DIRECTOR

In the matter of Dept. of Correctional Education/ No. 2001-025
July 12, 2001

The grievant has requested a ruling on whether his grievance initiated on November 6, 2000 with the Department of Correctional Education (DCE) qualifies for a hearing. The grievant claims that management misapplied or unfairly applied compensation policy. For the reasons discussed below, this grievance does not qualify for a hearing.

The grievant is employed as an Instructional Assistant for DCE. The grievant claims that he acted in a teacher’s position for the agency from August 1979 to April 1981, April 1985 to October 1988, and September 1992 to April 1997. In response to the grievant’s complaint, the agency conducted a search and found that there are no extant personnel records that would allow verification of whether he served as a teacher or long-term substitute teacher, and if so, the specific time periods. Nevertheless, the agency does not dispute that the grievant acted in some teaching capacity in the past without being compensated for this higher-level duty. The agency has stated in writing that, in order to remedy the matter, it will pay the grievant compensation of two steps above the salary he was making during each time period for which he qualifies for acting pay, beginning from October 1, 1994, through April 1997.

The grievant asserts that he should be paid compensation for the entire period claimed, beginning in August 1979 not merely from October 1, 1994. Also, he requests payment within thirty days, that the compensation be paid independently of consideration of payment to employees in other DCE schools, and that compensation above two steps be awarded, with interest on that compensation.

For a claim of policy misapplication or unfair application of policy to qualify for a hearing, there must be evidence raising a sufficient question as to whether management violated a mandatory policy provision, or evidence that management’s actions, in their totality, are so unfair as to amount to a disregard of the intent of the applicable policy.

Prior to September 25, 2000, state compensation policy allowed employees to receive supplemental "acting pay" for "performing the duties of a vacant position in a higher salary grade when there are no reasonable alternatives to filling the vacant position."¹ Under that policy, acting pay "normally shall be two pay steps," and is required after the employee has acted in a higher level vacant position for 90 days.² As stated, the agency does not dispute that the grievant may have performed teaching duties of a higher grade level. Accordingly, it appears that state compensation policy may have been misapplied or unfairly applied in the grievant’s case.

A determination by this Department that a grievant has presented evidence raising a sufficient question as to whether a misapplication of policy has occurred generally results in qualification of the issue for hearing. There are some cases, however, where qualification is inappropriate even if a policy has been misapplied. For example, during the resolution steps, an issue may have become moot, either because the agency granted the specific relief requested by the grievant or an interim event prevents a hearing officer from being able to grant any meaningful relief.

In this case, any relief available to the grievant under the grievance procedure would appear to be confined to the 30-calendar day period preceding his November 6, 2000 grievance.³ As explained above, the agency has already stated that it will pay the grievant compensation of two steps above the salary he was making during each time period for which he qualifies for acting pay, beginning from October 1, 1994 through April 1997. Therefore, if this claim proceeded to hearing, there would be no effectual relief that a hearing officer could grant because the agency has already provided a remedy well beyond the 30 calendar days of relief, if any, that would be available under the grievance procedure. Accordingly, this issue does not qualify for a hearing.

For information regarding the actions the grievant may take as a result of this ruling, please refer to the enclosed sheet. If the grievant wishes to appeal this determination to the circuit court, he must notify the human resources office, in writing, within five workdays of receipt of this ruling. If the court should qualify this grievance, within five workdays of

receipt of the court’s decision, the agency will request the appointment of a hearing officer unless the grievant notifies the agency that he does not wish to proceed.

Neil A.G. McPhie, Esquire
Director

Jeffrey L. Payne
Employment Relations Consultant