403.127 Regrade

In deciding whether regrade of the incumbent is appropriate, factors to consider include whether the initial assignment of the new or expanded duties and responsibilities was consistent with the position’s classification at the time of such assignment; whether there had been a "wholesale change" in a position requiring a new set of abilities; and whether the change occurred all at once or gradually. Olson v. DILHR [DWD] & DER, 96-0015-PC, 10/22/96

Regrade of the incumbent was appropriate where the change occurred gradually and the initial assignment to perform the new duty was a logical outgrowth of appellant’s existing responsibilities. Therefore, there was no wholesale or fundamental change in appellant’s position requiring a new set of abilities. Olson v. DILHR [DWD] & DER, 96-0015-PC, 10/22/96

The proper effective date of appellant's regrade after reallocation was the 1991 date he became the incumbent in the position via a transfer where the previous incumbent appealed a 1990 reallocation decision that was not decided in his favor until 1993, after he vacated the position and appellant was serving in the position. The Commission rejected respondents contention that the higher class level of the position would invalidate the appellant's transfer in 1991 and would require him to compete for the higher classified position. The reallocation decision in 1993 did not have a retroactive effect with respect to the transfer, a different type of personnel transaction. Zentner v. DER, 93-0032-PC, 6/23/94

In an appeal from an allocation decision, i.e. the decision setting the classification level for a new position, §ER 3.015(3), Wis. Admin. Code, which sets forth conditions in which incumbents of filled positions which will be reallocated or reclassified may not be regraded, is inapplicable. Even if such circumstances were present, the employe's statutory right to appeal a reallocation or reclassification decision would not be barred. Holton v. DER & DILHR, 92-0717-PC, 11/29/93

An important factor in determining whether to require competition or regrade the incumbent after a change in duties which occurred prior to the subject classification decision is whether, based upon the specifications in existence at the time of the change in duties, the new duties would justify a higher classification level than the one previously assigned to the position. The regrade issue arose after the Commission concluded that assigning appellant's position to use a new technology justified a class level higher than the one to which the appellant's position had been reallocated. Sannes v. DER, 92-0085-PC, 8/23/93

Respondent improperly denied the reclassification of the appellant's position from JSS 2 to JSS 3 where appellant failed to pass a performance evaluation generally referred to as the Quality Performance Index, where the duties and responsibilities assigned to appellant's position were at the JSS 3 level and where the JSS class specifications did not identify it as a progression series. Because the appellant's level of performance was not at the JSS 3 level, he was not immediately eligible to be regraded and so was not entitled to a salary increase. However, the respondent is not required to make a determination as to regrade on the basis of one QPI evaluation rather than two such evaluations. McCabe v. DILHR & DER, 83-0204-PC, 7/6/84

403.13 Reorganization of a department

Respondent's decision in 1989 to reallocate another employe's position in the work unit from Unemployment Benefit Specialist 3 to 4 to "correct an error" where the reallocation was due in part to a reorganization and other changes occurring subsequent to 1986 did not provide a basis for overturning respondent's decision in 1986 to reallocate the appellant's position from Unemployment Specialist 4 to 3, where the 1986 decision was a result of a classification survey and where the appellant's position in 1986 was clearly identified by the position standard at the 3 level. Harris v. DER, 86-0115-PC, 12/14/89

403.15 Salary and pay range

Where an attorney's regrade date was July 1, 1979, the effective date of 1979-1980 pay plan, it was error to have used the pre-existing pay plan to compute the regrade before adding the 7% general economic adjustment, notwithstanding that the regrade in the new pay plan had an adjustment built in, inasmuch as the pre-existing pay plan no longer was in effect. Stellick v. State Pers. Comm., Dane County Circuit Court, 81-CV-4398, 1/28/82

The respondent erred in administering the pay plan with respect to the determination of the appellant's physician's responsibility add-on level, but the appellant failed to establish that he should be at a higher level and therefore the action of the administrator was affirmed. Zechnich v. DHSS & DP, 79-4-PC, 9/29/80; affirmed by Dane County Circuit Court, Zechnich v. State Pers. Comm., 80-CV-6092, 2/27/81

403.16 Transfer

Where an employe's transfer was approved by a section chief under the director (now administrator) rather than the director personally, this was permissible since only discretionary duties and powers are nondelegable and the approval of transfers by the director is ministerial rather than discretionary. Sheda v. State Pers. Board, Dane County Circuit Court, 158-117, 11/16/78

The proper effective date of appellant's regrade after reallocation was the 1991 date he became the incumbent in the position via a transfer where the previous incumbent appealed a 1990 reallocation decision that was not decided in his favor until 1993, after he vacated the position and appellant was serving in the position. The Commission rejected respondents contention that the higher class level of the position would invalidate the appellant's transfer in 1991 and would require him to compete for the higher classified position. The reallocation decision in 1993 did not have a retroactive effect with respect to the transfer, a different type of personnel transaction. Zentner v. DER, 93-0032-PC, 6/23/94

Appellant failed to show that the administrator's decision to approve the transfer of the appellant to a position at a new location violated a civil service rule or statute where the appellant met the qualification requirements by occupying a position with the same classification as the position to which transfer was sought. Stasny v. DOT & DP, 79-192-PC,etc., 1/12/81

Where there was no explicit evidence of the administrator's approval, pursuant to §230.29, Stats., of the transfer, but the record contained a copy of a memo to the administrator requesting his approval, and containing a notation that the administrator verbally had approved the transfer, it will be inferred, in part in keeping with the presumption of administrative regularity, that the required approval had been given. Harley v. DOT & DP, 80-77-PC, 11/7/80

The provisions of §230.29, Stats., which state that the administrator is to approve a transfer, are mandatory rather than directory, and the failure to comply with a mandatory statute voids the transaction. Stasny v. DOT, 78-158-PC, 10/12/79 (Note: this case was affirmed by the Dane County Circuit Court in all respects except for restoration of sick leave. DOT v. Pers. Comm. (Stasny), 79-CV-6102, 6130, 2/27/81)

420 Relief awarded (see also 130)

The Commission lacks the authority to award retroactive compensation to persons who were denied reclassification. DER & DP v. PC (Doll), Dane County Circuit Court, 79-CV-3860, 9/2/80; appeal settled by Court of Appeals, 80-1689, 2/9/81 In the settlement agreement, the Division of Personnel agreed not to construe the circuit court decision as contrary to the proposition that compensation is appropriately paid from the effective date of the reclassification, regardless of whether reclassification is by DP action on its own motion or as required by lawful order.

In an appeal arising from the decision not to reclassify appellant based on an evaluation of her performance, and where appellant showed that the failure to consider one file as part of the review was contrary to the civil service code, the proper remedy was to review an additional ten files to determine whether appellant obtained an overall passing score, in accord with the respondent's normal procedure for analyzing performance. McNown [Williams] v. DILHR & DER, 94-0828-PC, 11/14/95

Where a non-resident was illegally permitted to compete for a vacant position and was ultimately hired to fill the vacancy, the respondent was required to cease and desist from a similar violation of the civil service code with respect to any future examinations and certifications in which the appellant participated. The appellant had ranked tenth on the examination and his name was not among the top five candidates whose names were certified and interviewed for the vacancy. Smith v. DMRS, 90-0032-PC, 8/3/95; explained further in ruling on request for reconsideration, 1/5/96; affirmed by Dane County Circuit Court; Smith v. Shaw et al., 90 CV 5059, 96 CV 283, 12/10/96

The plain language of §230.43(1)(a), Stats., indicates it is meant to cover intentional action against a particular individual or individuals, rather than a violation of the civil service code that has the effect of inuring to the detriment of some of the examinees. The statute is intended to deal with an active, purposeful intent to interfere unlawfully with individual rights under the civil service code, either by helping or hindering particular persons. It is not intended to criminalize any violation of the civil service code that results in adverse effects on a group of examinee's chances for success in a competitive selection process. Smith v. DMRS, 90-0032-PC, 8/3/95; explained further in ruling on request for reconsideration, 1/5/96; affirmed by Dane County Circuit Court; Smith v. Shaw et al., 90 CV 5059, 96 CV 283, 12/10/96

There was no violation of §230.43(1)(a), Stats., when respondent improperly permitted someone to participate in the selection process which caused the appellant, as well as all others, to have a lower rank on the exam register than he otherwise would have had. Even if respondent had properly disqualified the candidate who was ultimately hired, the appellant's rank would have improved from tenth to ninth, but appellant still would not have been certified. It would be speculative to rely on the mere possibility that the three other candidates ranked ahead of the appellant would have dropped out of consideration for one reason or another and that appellant ultimately might have been certified and selected. Appellants' request that he be appointed to the position in question and that the incumbent be removed as a remedy to respondent's illegal action of certifying an out-of-state candidate for a vacancy, was rejected. Smith v. DMRS, 90-0032-PC, 8/3/95; explained further in ruling on request for reconsideration, 1/5/96; affirmed by Dane County Circuit Court; Smith v. Shaw et al., 90 CV 5059, 96 CV 283, 12/10/96

A conclusion that an appointment was made outside the 60 day period referenced in §230.25(2)(b), Stats., would not result in an order voiding the certification or the appointment. Seitter v. DOT & DMRS, 94-0021-PC, 3/9/95

If the positions in question would be reclassified retroactively from Area Services Specialist 5 to Administrative Assistant 5 for the period from January 17, 1988 through October 8, 1989, the reclassification would have no effect on the actions of the appellants in demoting into the positions because the demotions were effective on January 15, 1988, i.e. prior to the effective date of the reclassification. In addition, the degree of hardship that would be suffered by the appellants who were not eligible to have demoted in lieu of layoff into an Administrative Assistant 5 classification would also preclude the reclassification having a retroactive effect on the demotions. Gardipee, et al. v. DER, 88-0004-PC, 1/24/92

Where the respondent, in deciding that the appellant did not qualify for Handicapped Expanded Certification, relied improperly on criteria that were required to have been, but were not, promulgated as administrative rules, and where the Commission could not conclude that a correct result under the statute would have been to have certified the appellant as HEC eligible, the only appropriate remedy was to remand the matter to the respondent to exercise its statutory discretion without reliance on the invalid criteria. Schaub v. DMRS, 90-0095-PC, 10/17/91

Where the respondents' denial of reclassification, which was rejected by the Commission, was based on an analysis of the classification level of appellant's duties and responsibilities and did not address the question of whether the changes in the position had been logical and gradual, the Commission remanded the matter "for action in accordance," which, presumably would result in a determination as to whether there had been a logical and gradual change. Beaumier v. DNR & DER, 90-0203-PC, 1/24/91

Where the Commission rejected the respondent's requirement of certain training and experience criteria for the Civil Engineer 1 - Transportation exam, the Commission declined appellant's request to void the current register. The record did not establish that the persons on the register were unqualified and the only purpose of voiding the register would be to delay any possible appointments until appellant would have a chance to compete under revised training and experience standards, a purpose which did not meet the standards necessary for invalidating a register established in §230.44(4)(d), Stats. Heikkinen v. DOT, 90-0006-PC, 4/16/90

Where the failure to certify the appellant for the position in question was the result of an unintentional administrative oversight and there was no showing of willfulness, the Commission ordered the respondents to cease and desist from engaging in the activities which resulted in the subject error. Rose v. DHSS & DMRS, 89-0035-PC, 10/25/89

The only appropriate remedy in an appeal arising from an invalid exam is to order respondent to cease and desist from utilizing the subject exam or an employment register created using the results of the subject exam. It would be inappropriate to certify the appellant for or appoint the appellant to the subject position. It would also be inappropriate for the order to encompass any other exam, register, certification, or position. Doyle v. DNR & DMRS, 86-0192-PC, 87-0007-PC-ER, 11/3/88

While the Commission cannot explicitly award back pay in a reclassification/reallocation appeal, an appeal filed by a represented employe relating to the effective date for a reallocation decision is not barred by §111.93(3), Stats. Popp v. DER, 88-0002-PC, 5/12/88

The improper denial of a reclassification does not give rise to entitlement to back pay, citing Seep v. DHSS, 83-0032-PC, 83-0017-PC-ER, 10/10/84; affirmed, Seep v. Pers. Comm., 140 Wis. 2d 32 (Ct. of App., 1987). Ghilardi & Ludwig v. DER, 87-0026, 0027-PC 4/14/88

Where the appellants were successful in a reclassification appeal, the Commission could not effectuate a remedy requiring the extension of the appellants' reinstatement rights at the higher classification level because the sole respondent, DER, had no authority with respect to reinstatement. Ghilardi & Ludwig v. DER, 87-0026, 0027-PC 4/14/88

The Commission lacked the authority to award back pay for the period of time the appellant was assigned duties consistent with the higher classification level in a case where appellant had met his burden of showing the position he filled was entitled to reallocation to the higher level and that it should be filled via competition. The Commission declined to grant appellant's request that the Commission order respondent to complete the recruitment and selection process by a date certain. Shorey v. DILHR & DER, 87-0070-PC, 2/l/88

Appellants, who were successful in an appeal of a reallocation of their positions, were not entitled to an explicit back pay award given the limitation in §230.43(4), Stats., to employes who have been unlawfully "removed, demoted or reclassified," citing Seep v. Personnel Commission, 140 Wis 2d 32, 41-42 (Ct. App, 1987) Manthei et al. v. DER, 86-0116, etc.-PC, 1/13/88

The Commission declined to award the appellant any relief where she had been illegally certified for a vacant position, hired and then fired by the appointing authority less than two weeks into her probationary period, where the appellant had declined an opportunity to return to her former position and where she had been paid for her work in the position to which she had been illegally certified. The appellant was not entitled to back pay until the date of the Commission's hearing because to do so would place her in a far better position than she would have been in absent the error by DMRS. Carey v. DMRS & DOR, 85-0179-PC, 3/13/86

The question of whether the Commission has the authority to issue an order requiring back pay in a reclassification appeal was not determinative as to the issue of relief. The Commission assumed that the respondent would take action to establish the correct effective date in accordance with ch. 335 of the Wisconsin Personnel Manual which requires that "reclassification actions be made effective at the start of the second pay period following effective receipt...." citing McGrew v. UW & DP, 81-443-PC, 1/7/83. Tiffany et al. v. DHSS & DER, 83-0225-PC, 7/6/84

Although there were violations of §230.16, Stats., in an exam process with respect to its timing and nonverbal feedback from one of the oral exam panel members, there was no showing of obstruction or falsification as set forth in §230.43(l), Stats., and therefore the Commission could not require the removal of the incumbent, and the remedy would be to require the respondents to cease and desist from further violations of the kind found in this case. Zanck & Schuler v. DP, 80-380-PC, 81-12-PC, 12/3/81

While this digest has been prepared by Personnel Commission staff for the convenience of interested persons, it should be remembered that the decisions themselves are the ultimate source of Commission precedent.

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