Issue: Qualification; Compensation/Leave/In-band salary adjustment; Ruling Date: November 19, 2001, Ruling #2001-191; Agency: Department of State Police; Outcome: Not qualified.

In the matter of Department of State Police/ No. 2001-191

November 19, 2001

The grievant has requested a ruling on whether her August 29, 2001 grievance with the Department of Virginia State Police (VSP) qualifies for a hearing. The grievant asserts that management misapplied state and agency policy and acted in a capricious manner by denying her an in-band adjustment. As relief, she seeks the same 9% in-band adjustment granted to other VSP Secretary Seniors, retroactive to July 10, 2001. For the reasons discussed below, this grievance does not qualify for a hearing.

The grievant has been employed by the Commonwealth for fifteen years and has been a Secretary Senior with VSP’s Bureau of Criminal Investigation (BCI) since 1999. In May 2001, the Director of BCI initiated a written request for an in-band adjustment for twelve BCI Secretary Seniors. The Director expressly excluded the grievant from the in-band request due to perceived performance problems. VSP’s human resources office conducted a study of BCI’s Secretary Seniors to determine whether they should qualify for an in-band adjustment because of an increase in their responsibilities. The auditors interviewed a number of individuals in this position, including the grievant, to determine what, if any, new duties they had acquired. The study demonstrated that, since 1999, the Secretary Seniors had been performing a number of additional duties, such as handling evidence, scheduling Virginia Department of Transportation work-zone assignments, handling petty cash, and issuing summonses. On the basis of their additional duties alone, the study recommended that all Secretary Seniors receive a nine percent pay increase (in-band adjustment). The study did not, however, include an assessment of the remaining pay factors such as individual performance.

The twelve BCI Secretary Seniors for whom the BCI Director had initiated his request for in-band adjustments subsequently received a memorandum from the Superintendent stating that they would receive the 9% increase, effective July 10, 2001, to compensate them for the additional responsibilities that they had assumed. The grievant was not sent a copy, but later learned of the adjustment from other secretaries. The agency did not grant an in-band adjustment to the grievant, claiming that, for performance reasons, they could not justify a pay increase.¹ During this Department’s investigation, management reported that the grievant was not doing what she was asked to do and that she was having difficulty in responding to her supervisors. The grievant contends that the salary adjustment was not a merit increase, and as an incumbent in the Secretary Senior role, she is entitled to the in-band increase.

For a misapplication of policy claim to qualify for a hearing, there must be facts that raise a sufficient question as to whether management violated a mandatory policy provision, or whether the challenged action, in its totality, was so unfair as to amount to a disregard of the intent of the applicable policy. The applicable statutes and policies in this case are found in the Code of Virginia and in the Department of Human Resource Management (DHRM) Policy and Procedure. The Virginia Personnel Act requires that "[e]ach position in the service of the Commonwealth shall be allocated to the appropriate class title" and "for each class of positions there shall be set forth a minimum and a maximum rate of compensation." ² DHRM Policy 3.05 provides further that state agency compensation responsibilities include the development and utilization of an Agency Salary Administration Plan to outline "implementation of the Compensation Management System" and for "ensuring consistent application of pay decisions." ³

Similarly, VSP’s Salary Administration Plan states that its philosophy is to "[r]ecognize employees performing at levels significantly above what would normally be expected and compensate those employees accordingly," and to "[t]reat all employees fairly, considering their individual differences." Moreover, the Plan provides that all compensation decisions will be based on the thirteen pay factors required under DHRM Policy 3.05, one of which is "previous and current work performance." ⁴ Under VSP’s Plan, in-band adjustments must be initiated by "supervision through channels to the Superintendent," and may be authorized by the Superintendent for the following reasons: (1) change in duties, (2) professional/skill development, (3) retention, and (4) internal alignment. ⁵ The Plan further states that the adjustment amounts (0% to 10%) in each case will be determined based on the thirteen pay factors.⁶

Thus, under state and agency policy, VSP is obligated to review in-band adjustment requests, analyze the appropriate factors, and determine what, if any, compensation adjustment would be appropriate and consistent with its other pay decisions. Importantly, the grievance procedure accords much deference to management’s exercise of judgement with respect to compensation decisions and this Department has long held that a hearing officer may not substitute his or her judgement for that of management regarding such decisions. ⁷ Thus, a grievance that challenges an agency’s decision to grant or not grant an employee an in-band adjustment does not qualify for a hearing unless there is sufficient evidence that the decision was made without a reasonable analysis of the appropriate factors established by the Salary Administration Plan, or that the resulting pay practice decision was plainly inconsistent with other pay practice decisions within the agency.

In this case, BCI management had decided not to initiate a request that the grievant receive an in-band adjustment, based on her past and current performance, one of the thirteen pay factors required to be considered by policy prior to granting an in-band salary increase. Even so, the agency considered the grievant for an in-band adjustment and again determined that it could not justify granting her a pay increase. Specifically, management demonstrated concern that the grievant was not performing to the agency’s expectations.

Importantly, VSP’s Salary Administration Plan allows for an assessment of each employee’s performance and duties and provides the agency with the flexibility to adjust salaries when justified. In this case, management considered each Secretary Senior individually, in view of the same pay factors. The pay action worksheets of the twelve individuals who received the 9% salary increase indicate that they were all performing at a satisfactory level.⁸ Upon review of the supporting data and in consideration of the thirteen pay determination factors, the Director of BCI recommended that no salary increase be granted with respect to the grievant’s position. That finding and recommendation were forwarded to the Superintendent, who denied the request to grant this employee an in-band adjustment along with the other Secretary Seniors. Thus, the compensation determination process involved management review of the grievant’s qualifications and current duties and responsibilities as required by state and agency policies.

The grievant has presented no evidence that she was arbitrarily excluded from consideration for an in-band adjustment, that management’s decision was made without a reasonable analysis of the appropriate factors established by policy, or that the decision in her case was inconsistent with the treatment of the other Secretary Seniors. It was wholly within VSP’s discretion to consider performance across the board when making its decision whether to grant an in-band adjustment, and the agency has demonstrated that all employees were subject to the same analysis under its Salary Administration Plan.

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, she should 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 she does not wish to proceed.

Neil A. G. McPhie, Esq.
Director

Leigh A. Brabrand
Employment Relations Consultant