OCTOBER 2008 The questions and answers below are provided by CAPS as a service to its members. This complex administrative appeal was first filed by CAPS in November 2006. After two sets of hearings, it was finally answered favorably by DPA Director David Gilb on April 28, 2008. CAPS filed a lawsuit in Sacramento Superior Court on June 27, 2008 after efforts to fund the decision in the legislature were unsuccessful. It was heard before Sacramento Superior Court Judge Lloyd Connelly on September 19. Now CAPS is in the process of doing additional discovery of evidence before proceeding back to court.
To read the documents filed in this case, go to www.capsscientists.org These questions and answers will be edited and refined over time as events evolve and circumstances change.
WHAT IS THE QUESTION BEING LITIGATED? Under Government Code Section 19826 and related case law, is the state obligated to pay wages to state scientists that are equivalent to those paid to state engineers where there is similar or identical work being performed by incumbents in both groups, and where there has been a consistent and long history of equivalent pay between the classifications? (For more details, see CAPS’ documents at www.capsscientists.org.)
WHAT IS THE CURRENT STATUS OF THE CASE? CAPS has formally demanded a deposition (interview) of Department of Finance Director Michael Genest and other persons from the DOF most knowledgeable of the case. These depositions will likely occur by mid November. The main question will be whether the current allocation for additional employee compensation in the 2008-2009 state budget, some $327 million, is entirely encumbered for specific purposes. CAPS will claim in a future court hearing, yet to be scheduled, that any funds not entirely encumbered for a specific expenditure are available to pay the higher salaries required by the April 28, 2008 decision by DPA Director Gilb. CAPS has good reason to believe that not all funds currently budgeted for employee compensation increases are designated for a specific use and thus ARE available to satisfy Director Gilb’s April 28 decision.
WHO IS DIRECTLY AFFECTED SHOULD CAPS WIN THIS CASE? All of the S10 scientific supervisors in the 14 state classifications named in the April 28, 2008 decision by Director Gilb. Should the award be made retroactively, any supervisors in these classes during any of the qualifying periods should be eligible to receive an award.
WHAT ABOUT THE S10 SUPERVISORY CLASSIFICATIONS NOT ONE OF THE 14 COVERED IN THE APPEAL. HOW WOULD A CAPS VICTORY AFFECT THEM? If the 14 directly affected classes receive an award, then it is possible that DPA will extend the same percentage increases to all S10 scientific supervisors. It is also possible they would not, but failure to do so would wreck long standing salary relationships between state scientist supervisors, and possibly create grounds for CAPS to file a new legal challenge.
WILL A VICTORY AFFECT RANK AND FILE SCIENTISTS? It could and should, and that is one of many reasons CAPS filed this case. If and when CAPS wins, the results should force the state to immediately and significantly increase the wages of some or all S10 state supervisors. Pressure will then mount to increase the wages of the related rank-and-file classifications. Even if that does not happen immediately, the economic incentive to promote to the supervisory ranks will increase for the first time in a very long time.
WHY CAN’T THE SAME CASE BE FILED ON BEHALF OF ALL STATE SCIENTISTS? CAPS continues to explore this possibility, but currently there is no legal precedent to support it. Rank-and-file employees have the option to collectively bargain. The Government Code Section in question, 19826, applies only to state supervisors and managers. CAPS believes that a victory in this case might open the door to a legal claim on behalf of rank-and-file scientists should collective bargaining not provide the same result. However, CAPS needs to win this case first.
WHEN WILL THIS CASE BE DECIDED? We can’t predict this with certainty. We hope to have a determination from the court by year’s end. We are open to negotiating an agreement with the Schwarzenegger Administration, but it must fully satisfy the April 28, 2008 decision, including retroactivity.
WHY IS THIS TAKING SO LONG? CAPS has followed the required processes to file and appeal this case from the outset. This case actually could be taking much longer, but CAPS has been quick to prepare and present its case, and it has insisted that the state proceed as quickly as possible.
Do you have a question that needs an answer? If so, send it to CAPS:firstname.lastname@example.org