[nfbmi-talk] one person in ag's office

Tue Jun 22 22:07:21 UTC 2010

        This was one of the people giving staff and commissioners training on the Open Meetings Act and the Michigan Freedom of Information Act last Thursday. This was technically an open meeting though they didn't give the appropriate notice. Anyway both Larry and I attended. I taped it, but it was also recorded for Mike Geno and that recording is available under FOIA as all recognized after some education on that issue.

Anyway we're not dealing with legal equivalents of rocket scientists here. But Barbara Schmidt is much worse and just makes it up as she goes along...The law that is...

Joe
http://web1mdcs.state.mi.us/NXT/gateway.dll/DSTARS/technical%20complaint%20decisions/classification%20qualifications%20appointment/2007/tad%202007-117.htm?fn=document-frame.htm$f=templates$3.0

TAD 2007-117 Daphne M. Johnson 9/27/2007

JENNIFER M. GRANHOLM

GOVERNOR

State of Michigan

CIVIL SERVICE COMMISSION

JAMES D. FARRELL

STATE PERSONNEL DIRECTOR

commissionERS

F. THOMAS LEWAND,

CHAIRPERSON

SHERRY L. McMILLAN

BRYAN J. WALDMAN

Office of Technical Complaints

TECHNICAL Review DECISION

Table with 2 columns and 8 rows

In Re: Technical Qualification Complaint

Date mailed

September 27, 2007

            of

TAD 2007-117

Daphne M. Johnson

Ref. No.

2007-03241

Key Word(s)

Qualifications/Eligibility

Selection

Working Out of Class

table end

Basis of Complaint and Relief Requested

The complainant is questioning the credential review decision that determined she does not possess the experience required to qualify for the Senior Management

Executive (SME) 19 classification. As the desired outcome of her Technical Complaint, the complainant seeks:

One of the outcomes I seek is to obtain Civil Service determination that I qualify for the Senior Management Executive 19 classification so I can interview

for the position recently posted in the Department of Attorney General.

I would also like to have a determination made of the supervisory experience that I currently possess and the information be placed in my Civil Service

history/HRMN so that (1.) I, the Department and Civil Service will know and be able to operate from the same information and (2.) I will know for which

Civil Service positions I qualify for and can apply for in the future. It would be very helpful to resolve this issue so that we don’t have to go through

this process again.

^2Background

On September 7, 2007, the Civil Service Commission (CSC) Office of Human Resource Services (OHRS) received from the Department of the Attorney General a

request

for a credential review to determine if the complainant possesses the education and experience required to qualify for the SME 19 classification. In a letter

dated September 14, 2007, the OHRS notified the complainant that it had been determined she does not possess the experience required to qualify for that

classification. It is this technical decision the complainant is now questioning. On September 20, 2007, the CSC Office of Technical Complaints received

the complainant’s Technical Qualification Complaint.

Discussion

Chapter 9 of the CSC Rules defines the term Technical Complaint as follows:

Technical Complaint means a written complaint that a technical decision (1) violated article 11, section 5 of the Michigan Constitution; (2) violated a

Civil Service rule or regulation; or (3) was arbitrary and capricious.

In addition, Civil Service Regulation 8.02, Technical Classification and Qualification Complaints, Standard A.2.c, states that a Technical Complaint must

include:

A complete statement of why the technical decision (1) violated article 11, section 5 of the Michigan Constitution; (2) violated a Civil Service rule or

regulation; or (3) was arbitrary and capricious.

To prevail in the Technical Complaint Process, the complainant must show that the OHRS technical decision fits one or more of these three bases for granting

the relief she seeks. In this case, the complainant alleges that the OHRS technical decision was arbitrary and capricious.

Regulation 8.02, Standard A.2.e., also states, in part, that the desired outcome of the Technical Complaint must be within the authority of the CSC to grant.

The complainant seeks a determination that she qualifies for the SME 19 so that she may interview for a position posted by the Department of the Attorney

General. It must be noted that if the complainant prevails in her Technical Complaint, the Technical Review Officer (TRO) cannot guarantee that the determination

will be rendered within a time frame that allows the complainant to be interviewed for that particular position. The TRO also cannot guarantee or require

that the Attorney General interview the complainant if it is determined that she qualifies. That is a determination to be made by the employing agency,

not the CSC. The only outcome arising out of the complainant’s Technical Qualification Complaint is the determination of whether or not she qualifies for

the SME 19 classification.

^3In addition, the CSC does not maintain the type of qualification database cited by the complainant. The classification plan is not a static entity; it

is constantly evolving and changing based upon the needs of state agencies. This is especially true of the qualification requirements. An applicant who

qualifies for a given classification today may not qualify for that same classification in the future if the qualification requirement is revised. Likewise,

an applicant who does not qualify now may qualify in the future if the qualification requirements change. Therefore, maintaining such an overall qualification

database would be impractical at best. The complainant’s request, therefore, cannot be granted as a result of this Technical Complaint.

The Senior Executive Service (SES) Job Specification defines and describes the classifications that are included in the SES, one of which is the SME 19

classification. The SES Job Specification requires the following education and experience for the SME 19 classification:

Education

Possession of a bachelor’s degree in any major.

Experience

Two years of professional, managerial experience.

The complainant’s State of Michigan employment history indicates that she has occupied positions classified as a College Trainee (Bachelors) IV, Parole/Probation

Officer V, Parole/Probation Officer VIB, Parole/Probation Officer P11, Student Assistant 7, State Transitional Professional 9, Staff Attorney-E (P15),

and Attorney-Senior-A (16). All of this experience is professional experience. None of this experience is professional managerial experience that can be

used to qualify for the SME 19 classification.

The complainant’s employment history indicates that she was assigned to work out-of- class, apparently as a Parole/Probation Manager, from November 2, 1997

to June 13, 1998, a total of seven months and eleven days. This experience can be credited for qualification purposes, but falls far short of the 24 months

of professional managerial experience that is required for the SME 19 classification.

On her resume submitted for the credential review, the complainant included no information regarding her non-state experience, with the exception of indicating

that from November 2000 to December 20, 2002 she practiced law in a private practice. In her Technical Complaint, the complainant now states:

It appears Civil Service used the wrong criteria and apparently was not privy to the information/documents I submitted to the Department of Attorney General,

clarifying my experience. I question the determination that I lack two years of experience as a professional manager. I believe that the Civil Service

determination was arbitrary and capricious.

^4* * *

As my cover letter to the Department of Attorney General indicates, I also have managerial experience while working at Sbarro and Gateway Lanes/Peppermint

Lounge. . . Gateway Lanes and the Peppermint Lounge was a family owned business. While working as a manager, I supervised one or more staff.

* * *

. . . I worked for Sbarro from October 1987 to March 1988. My primary work station was in Kalamazoo and I supervised one or more staff.

* * *

The Civil Service determination was arbitrary and capricious. . . While Civil Service was conducting its review, at no time was I contacted by Civil Service

to clarify any of my employment history. If Civil Service had questions, I could have been easily contacted and I would have been more than happy to provide

proof or additional information.

First, it must be noted that when evaluating non-state experience, the same standards must be applied as are applied when evaluating state classified experience.

The analyst must attempt to determine how the experience would be classified if it were performed within the classified service.

The Equitable Classification Plan (ECP) Glossary of Classification and Selection Terminology defines the term professional classification, in part, as follows:

Classifications in which the predominant and essential function of the work requires the application of theories, concepts, principles, and methodologies

typically acquired through completion of a bachelor’s or post-bachelor’s degree program.

The Glossary further defines professional experience as follows:

Work experience gained in a professional occupation or classification subsequent to receiving a bachelor’s degree (or the Civil Service determined equivalent).

The Glossary also defines the term nonprofessional classification as follows:

Classifications in which the predominant and essential function of the work does not require post-secondary education.

Therefore, the applicant must not only possess a bachelor’s degree, he/she must also possess experience in a position that requires the possession of a

bachelor’s degree.

The information provided by the complainant indicates that she received her bachelor’s degree in 1985. The information provided by the complainant also

states that her experience at the Peppermint Lounge and Gateway Lanes occurred from 1978 to 1981. ^5No specific dates or hours worked were provided. Obviously,

these positions did not require the possession of a bachelor’s degree and, therefore, would not meet the definition of professional experience as defined

by the ECP used by the State of Michigan. These positions would be considered to be a non-professional supervisor of non-professional positions and would

not provide experience that can be used to qualify for the SME 19 classification.

The complainant’s information regarding her experience at Sbarro contains a significant discrepancy. The cover letter sent to the Department of Attorney

General states that her managerial experience consisted of “approximately two years at Sbarro, 1987-1989. However, in her Technical Complaint the complainant

states that, “. . . since submitting the application to the Department on September 7, 2007, I verified through State Bar records that I worked for Sbarro

from October 1987 to March 1988.” This would mean the duration of this experience was approximately five months, not the “approximately two years” alleged

by the complainant in her cover letter. The difference between five months and two years is significant. In any event, once again, this type of position

is not one that would require the possession of a bachelor’s degree and in the ECP would be considered to be a non-professional supervisor of non-professional

positions. This is not experience that can be considered to be professional managerial experience.

Finally, the complainant alleges that the OHRS technical decision was arbitrary and capricious because the CSC did not have all of the information she submitted

to the Department of Attorney General and that the CSC did not contact her to clarify her experience. The CSC can only make determinations based on information

in their possession. The only information provided to the CSC was the complainant’s resume which made no mention whatsoever of her non-state experience

at Sbarro and Gateway/Peppermint Lounge, which would have provided the CSC with no reason to contact the complainant to clarify her experience. Based on

the information provided, the OHRS technical decision was appropriate and technically sound. The decision cannot be arbitrary and capricious due to a lack

of information provided to the CSC by the complainant or by the employing department. For a decision to be arbitrary and capricious it must be a willful

and unreasonable action taken without consideration of or in disregard of facts or law or without determining principle. In this case the determining principles

are CSC rules, regulations, and other provisions of the official classification plan. Based on all of the information in the record, I must conclude that

the OHRS technical decision was consistent with all relevant CSC rules, regulations, and provisions of the classification plan and, therefore, was neither

arbitrary nor capricious.

Decision

The complainant does not possess the experience required to qualify for the Senior Management Executive 19 classification. Moreover, the complainant has

not shown that the OHRS technical decision violated article 11, section 5 of the Michigan Constitution; ^6violated a Civil Service rule or regulation;

or was arbitrary and capricious. The requested relief, therefore, is denied.

/S/

Kenneth Melaragni, Technical Review Officer

Office of Technical Complaints

cc:

Deborah Wieber, Civil Service Commission

This decision may be appealed to the Civil Service Commission through the Employment Relations Board within twenty-eight (28) calendar days after the mailing

date of this decision, as authorized by Civil Service Commission Rule 8-3.4.  You may appeal upon application and leave granted, in the discretion of the

Board, upon showing of grounds for appeal under Civil Service Commission Rule 8-7.5.  If the Board grants your request for appeal, you will have to show

grounds for modification or reversal of this decision, see §4(P)(1) of Civil Service Regulation 8.05, Employment Relations Board Appeal Procedures.  You

must serve copies of the application upon the Technical Review Officer and the persons copied on the decision and submit proof of service thereof to the

Board with the application.  Civil Service Regulation 8.05, and Civil Service Regulation 8.06, Computing Time and Filing Documents, should be referenced

for directions on filing an application for leave to appeal.  The applicable Michigan Civil Service Commission Rules; Civil Service regulations; and forms

for filing an application for leave to appeal, and proof of service are available through the Civil Service Web site at

www.michigan.gov/mdcs,

or by contacting the Board office.  Applications for leave to appeal and inquiries should be addressed to the Employment Relations Board, Capitol Commons

Center,

400 South Pine Street, P.O. Box 30002, Lansing, Michigan 48909; by telephone, at (517) 335-5588; by fax, at (517) 335-2884; or by e-mail to

MDCS-ERB at michigan.gov.

This is a publication of the Michigan Civil Service Commission. The written document, as published at the time it was issued, is the most authoritative

source of the actual content and format of the decision.