Opinion
C.A. No. 99A-10-001 HDR.
Submitted: April 7, 2000.
Decided: May 31, 2000.
Upon Appeal from a Decision of the Merit Employee Relations Board, AFFIRMED.
Roy S. Shiels, Esq., of Brown, Shiels, Beauregard Chasanov, Dover, Delaware, for Appellant.
C. Drue Chichi, Esq., Deputy Attorney General, of the Department of Justice, Wilmington, Delaware, for Appellee.
OPINION
This is an appeal from a decision of the Merit Employee Relations Board (the "Board"). Appellant, Mary I. Raley, applied for a promotion within the Delaware Department of Transportation ("DelDOT") to the position of Transportation Planning Supervisor. When DelDOT awarded that position to Daniel LaCombe, Raley filed a grievance, alleging pre-selection and procedural irregularities. Her grievance could not be resolved through the four-step grievance process, so she filed an appeal to the Merit Employee Relations Board. After conducting an evidentiary hearing, the Board concluded that the alleged procedural irregularities were insufficient to set aside the award of the Transportation Planning Supervisor position to LaCombe and that Raley had failed to show by a preponderance of the evidence that any improper pre-selection had occurred. Consequently, the Board denied Raley's grievance. Pursuant to 29 Del. C. § 5949, Raley appealed the Board's decision to this Court. Because the decision of the Board is supported by substantial evidence and is free of legal error, it is affirmed.
Raley v. Dep't of Transportation, M.E.R.B. No. 9712112 at 30 (Aug. 25, 1999) (Bd. Op.).
Id.
I. BACKGROUND
Mary I. Raley is a permanent merit employee of the State of Delaware and works for DelDOT. From April, 1989 until July, 1992, she was employed at DelDOT as a Senior Highway Planner, and after July of 1992, she held the position of Senior Transportation Planner. During her employment, she has always received satisfactory job evaluations.
Daniel LaCombe currently works as a Transportation Planning Supervisor for DelDOT. LaCombe first worked for the State of Delaware while he was working on his Master's Degree in Public Administration at the College of Urban Affairs and Public Policy of the University of Delaware. He received his Master's Degree in June of 1990. LaCombe's first position as a state employee was in the Controller General's Office as a Legislative Fellow. He then worked as a Legislative Fellow for the House of Representatives. While there, he served as the committee assistant and researcher for three House committees. After completing his Master's Degree, LaCombe found employment with the Delaware Department of Natural Resources and Environmental Control. In this position, he acted as the project officer for the Waste Plan Computer Model Project. This project attempted to provide a computer model of the generation, collection, processing, and disposition of Delaware's solid waste.
In late 1991, Ralph Reeb contacted LaCombe about working for the Department of Transportation. This conversation led to LaCombe's being offered full-time employment as a Program Analyst in the Program Development Section of the Delaware Transportation Authority ("DTA") in Wilmington. Unlike some other positions in the DTA, the position which LaCombe occupied was not in the Merit System. Instead, LaCombe was paid from funds budgeted to DAST, a subsidiary of DTA.
In November of 1994, LaCombe was assigned to supervisory work in DelDOT's Division of Planning. At the Division of Planning, he worked primarily on DelDOT's Long Range Plan under the direction of Mr. Reeb. Reeb assigned Raley to work under LaCombe, and later, Linda Dixon and Michael DelTufo were also assigned to LaCombe for supervision. LaCombe knew prior to coming to the Division of Planning that DelDOT was in the process of filling several Merit System positions, including the position to which he was temporarily assigned. Both Reeb and Eugene Abbott, Director of DelDOT's Division of Planning, told LaCombe that he would have to compete for the position when it was posted if he wished to occupy it permanently.
Although LaCombe worked at DelDOT's Division of Planning after November of 1994, he was still considered an employee of DTA until September of 1995, when he was awarded the Merit System position of Transportation Planning Supervisor at DelDOT. From November of 1994 until August of 1995, DTA continued to pay LaCombe's salary, and DelDOT reimbursed DTA for that amount.
In the early 1990's, the distribution of planning work within DelDOT began to undergo significant changes as a result of the enactment of the federal Clean Air Act ("CAAA") and the Intermodal Surface Transportation Efficiency Act ("ISTEA"). Prior to 1993, DTA had carried out several planning functions. These planning functions centered on transit, but also included significant work on issues dealing with the CAAA and ISTEA. DelDOT's Division of Planning, which was more highway oriented, performed other planning functions. DelDOT began to make efforts to combine these functions into one planning division in order to meet the deadlines imposed by the CAAA and ISTEA and avoid federal sanctions.
In September of 1993, Eugene Abbott was appointed the new Director of DelDOT's Division of Planning. Immediately after taking this position, Abbott began to intensify the efforts to consolidate planning functions in order to meet the federal deadlines imposed by the CAAA and ISTEA. Abbott concluded that major organizational changes were necessary in DelDOT's Division of Planning. These changes included creating five new positions and converting three DTA-funded positions into Merit System positions. The DTA-funded employees were to have an opportunity to compete for Merit positions, but were not guaranteed placement. In the Spring of 1994, Abbott requested these new and converted positions in Fiscal Year 1995 Budget Requests. The Budget Act approved a sufficient amount of money and a sufficient number of positions by title or position number to grant this conversion.
After the new positions were authorized in the budget, DelDOT began the process of actually filling them. This process first required the completion of Position Classification Questionnaires ("PCQs"), which would describe the new jobs. The PCQs would then be reviewed at the State Personnel Office, which would determine the actual appropriate job class and title for the new and converted positions.
Abbott needed help in order to complete the PCQs. He assumed that Human Resource Management would fill out the PCQs, but later learned that it would only review the PCQs after the Division of Planning had created them. Abbott knew that the PCQs had to be drafted by someone who was familiar with the Hay System of personnel classification. He knew of a consulting firm, Perry Place Partnerships, which had Hay System experience, and attempted to hire this firm to create the PCQs. However, Abbott then learned that the State Personnel Office objected to the use of Perry Place.
In the Fall of 1994, Ray Harbeson, DelDOT's Director of Preconstruction and Chief Engineer, offered the services of one of his staff members, Carolann Wicks, P.E., to prepare the PCQs. Wicks was familiar with the Hay System and had experience in drafting PCQs. Wicks was home on maternity leave, and Harbeson suggested that she could work on the PCQs from her home office. Abbott agreed to allow Wicks to draft the PCQs.
Wicks worked on several PCQs, including those used for the positions eventually filled by Joseph Cantalupo and LaCombe. Wicks consulted with Reeb when she was drafting the PCQs and made changes to drafts that he submitted. She completed the PCQs and gave them to Abbott for review in late 1994 or early 1995. Abbott permitted Reeb to review the documentation submitted by Wicks and to make corrections. DelDOT transmitted the PCQs, as modified, to the State Personnel Office in March and May of 1995, and the State Personnel Office subsequently reviewed the job descriptions. After the State Personnel Office had finished classifying the positions, DelDOT began to fill them.
On January 18, 1995, Abbott signed a DelDOT Request to Fill Vacancy form relating to Position No. 66811, a Transportation Planning Supervisor position. This request included selective requirements and preferences relating to familiarity with the CAAA and ISTEA and experience with the legislature and with long range planning projects. On March 10, 1995, Abbott signed another Request to Fill Vacancy form for Position No. 67284, another Transportation Planning Supervisor position. This request did not contain any selective requirements or preferences.
More specifically, the selective requirements and preferences for Position No. 66811 were as follows:
Selective Requirement: Experience in multi-modal (including transit) transportation planning; experience analyzing and developing ISTEA and CAAA transportation public policy; and experience in developing transportation systems plans using transportation modeling techniques including transportation control measures and long range planning;
Preference Requirement: Experience working with private sector representatives and public sector officials to develop policies and programs to comply with ISTEA/CAAA mandates; knowledge of Delaware's CAAA compliance process. Experience working with a legislative body. Appendix to Appellant's Opening Brief at 31, Raley v. Delaware Dep't of Transportation, C.A. No. 99A-10-001.
On March 24, 1995, DelDOT published job posting announcements for the two Transportation Planning Supervisor positions. The announcement for Position No. 66811 was assigned Posting Number 95-08, and the announcement for Position No. 67284 was assigned Posting Number 95-20. Both postings were sent to the State Personnel Office in the usual course of business. Posting No. 95-08 had a closing date of April 7, 1995, but Posting No. 95-20 had no closing date. The State Personnel Office received these postings and published the announcements. Although Position No. 66811 was advertised in newspapers, Position No. 67284 was not. DelDOT received five applications for Position No. 66811. However, it received no applications for Position No. 67284.
On June 2, 1995, Judith Rini of Human Resource Management determined which applicants met the minimum qualifications for Position No. 66811 (Posting No. 95-08). The register consisted of Cantalupo, Henry Collins, Jr., Francis Hahn, LaCombe and Raley. Rini issued the eligibility list for the position, which is commonly referred to as the "certification list." The certification list was exactly the same as the full register. Rini then suggested to Annamay Decker, Abbott's assistant, that since no one had applied for Position No. 67284, the Division of Planning could interview for both Transportation Planning Supervisor positions from the same certification list.
Following the issuance of the certification list, DelDOT conducted interviews for Position No. 66811 on June 22 and 27, 1995. The panel of interviewers consisted of Carolann Wicks, Terese Fulmer, Lawrence Klepner, and Eugene Abbott. Raley has admitted that no favoritism or pre-selection occurred in the interview process and that no one improperly sought to influence the interview panel.
Abbott prepared a draft of the interview questions. The panel members met before the interviews began in order to review these questions. The panel members agreed that the questions were appropriate, and determined the sequence of who would ask each question. Prior to the interviews, all of the panel members also received a copy of each applicant's resume and application.
After all of the interviews had taken place, the panel members individually ranked the applicants. They then met to discuss the candidates' relative strengths and weaknesses. The panel members agreed that Cantalupo was the number-one candidate and that LaCombe was a close second. The other three candidates received lower rankings. Based on the interview rankings, DelDOT awarded Position No. 66811 to Cantalupo.
On July 24 and 26, 1995, Annamay Decker called each of the unsuccessful applicants. She received their permission to consider the interviews already conducted for filling a second Transportation Planning Supervisor position that had become available. The interview panel had ranked LaCombe as the number-two candidate. On the basis of that ranking, DelDOT awarded the second Transportation Planning Supervisor position (Position No. 67284) to LaCombe.
Upon learning that DelDOT had awarded the second position to LaCombe, Raley filed a grievance. She received an adverse decision from the hearing officer for the Director of the Office of State Personnel at the fourth step of the grievance process, and subsequently filed an appeal to the Merit Employee Relations Board. At the hearing before the Board, Raley argued that DelDOT had violated Merit Rule 13.0100, which prohibits discrimination, violation of any of the procedural requirements of the Merit Rules, and gross abuse of discretion in promotion. More specifically, Raley alleged five points of error in the process by which DelDOT selected LaCombe and Cantalupo for the two Transportation Planning Supervisor positions: 1) failure to follow posting and advertising requirements; 2) failure to adhere to internal equal opportunity review procedures; 3) unlawful transfer of funds and functions between DTA and DelDOT; 4) irregularities in the creation of the PCQs; and 5) pre-selection of non-state employees by means of transferring them to positions before those positions were officially created in order to create an advantage for them. Raley argued that these five points of error were evidence of DelDOT's pre-selection of LaCombe for the second Transportation Planning Supervisor position and of the lack of fair and open competition for that position.
The Board found that the alleged procedural irregularities were not sufficient to warrant setting aside the award of the Transportation Planning Supervisor position to LaCombe. The Board also concluded that LaCombe had competed and was fully qualified for the position and that Raley had failed to establish by a preponderance of the evidence that any improper pre-selection had taken place. For these reasons, the Board denied the appeal of Raley's grievance.
Raley, M.E.R.B. No. 9712112 at 30 (Bd. Op.).
Id.
Id.
Presently before this Court is Raley's appeal of the Board's decision. Raley contends that the Board committed two errors. First, Raley claims that the Board did not properly consider the legal issues relating to whether DelDOT's actions prior to the creation and filling of the Transportation Planning Supervisor positions violated Merit Rule 13.0100. Second, Raley argues that the Board did not properly consider the effect of the posting and advertising procedures that DelDOT followed during the filling of the Transportation Planning Supervisor position.
II. STANDARD OF REVIEW
On appeals from the Merit Employee Relations Board, the Superior Court must limit its scope of review to correcting errors of law and determining whether substantial evidence exists in the record to support the Board's findings of fact and conclusions of law. "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." It is more than a scintilla of evidence, but less than a preponderance. On appeal, this Court may neither re-weigh the evidence, determine questions of credibility nor make its own factual findings. The Court must view the facts in a light most favorable to the party that prevailed below. Additionally, the Court must give deference to the Board's expertise, and must affirm the Board's decision "even if the Court might have, in the first instance, reached an opposite conclusion."
Foster v. State of Delaware Dep't of Public Safety, Del. Super., C.A. No. 96-A-04-002, 1997 WL 127002 at *2, Herlihy, J. (Jan. 27, 1997) (Mem. Op.); see Guions v. Protection Technology, Del. Super., C.A. No. 98A-08-010, 1999 WL 1442022 at *3, Cooch, J. (Sept. 21, 1999) (Mem. Op.).
Wadkins v. Kent County Board of Adjustment, Del. Super., C.A. No. 98A-05-003, 1999 WL 167776 at *2, Ridgely, P.J. (Feb. 23, 1999) (ORDER).
McKinney v. Kent County Board of Adjustment, C.A. No. 94A-01-001, 1995 WL 109032 at *1, Ridgely, P.J. (Feb. 13, 1995) (Mem. Op.).
Guions, C.A. No. 98A-08-010, 1999 WL 1442022 at *3.
Id.
Id.
III. DISCUSSION
A. The Board Properly Considered DelDOT's Actions Prior to the Creation and Filling of the Transportation Planning Supervisor Positions.
Raley first contends that the Board did not properly consider the legal issues regarding whether DelDOT's actions prior to the creation and filling of the Transportation Planning Supervisor positions violated Merit Rule 13.0100. Specifically, Raley claims that the Board based its conclusion that DelDOT did not violate Merit Rule 13.0100 on four erroneous findings. First, she alleges that the Board erred in finding that no unlawful transfer of funds and employee functions occurred between DTA and DelDOT. Second, she argues that the Board erred in finding that no pre-selection occurred, because it failed to give proper consideration to the steps taken to pre-select LaCombe that occurred prior to the interviews for the Transportation Planning Supervisor position. Third, she claims that the Board erred in finding that the lack of an Equal Opportunity Review for the Transportation Planning Supervisor position was not evidence of pre-selection. Finally, she argues that the Board erred in finding that the process used to develop the PCQs contained no evidence of pre-selection.
Merit Rule 13.0100 provides:
13.0100 Promotion
Vacancies shall be filled by promotion wherever practical and in the best interest of the classified service.
Whenever a position is to be filled by promotion, the candidate shall meet the minimum requirements of the class specification. Consideration shall be given to qualifications, performance record, seniority, conduct and, where applicable, the results of competitive examinations.
No grievance may be maintained concerning a promotion except where:
(1) the person who has been promoted does not meet the minimum qualifications;
(2) there has been a violation of Merit Rule 19.0100 or any of the procedural requirements in the Merit Rules; or
(3) there has been a gross abuse of discretion in the promotion.
1. Transfer of Funds and Employee Functions between DTA and DelDOT.
Raley claims that DTA was not a state agency, and that DTA employees were not state employees and should not have been supervising state employees. She also maintains that certain employee functions were specifically delegated to DTA and could not be transferred to DelDOT's Division of Planning. In addition, she contends that DelDOT had no legal authority to spend funds delegated to DTA prior to July, 1995.
Raley's argument that DTA was not a state agency is incorrect. 2 Del. C. § 1302(b), the statute creating the DTA, provides:
The General Assembly hereby determines that in order to remedy such conditions and to implement the purposes of this chapter, there shall be created an authority which shall be a body politic and corporate constituting a public instrumentality having the powers, duties and functions provided in this chapter; that the creation of the authority and the powers conferred on such authority under this chapter and the expenditure of moneys pursuant to this chapter constitute a valid public purpose and the performance of a valid public function; that the enactment of the provisions hereinafter set forth is in the public interest and for the public benefit and welfare and is hereby so declared to be as a matter of express legislative determination.
As this statutory provision demonstrates, DTA expended public funds for a public benefit, and therefore, constitutes a state agency. Furthermore, this Court has previously referred to DTA as a "specific state agency."
Turnbull v. Fink, et al., Del. Super. C.A. Nos. 90-C-10-135, 91C-04-279, 92C-03-033, 92C-03-080, and 92C-03-057, 1994 WL 89641 at *4, Alford, J. (Feb. 17, 1994) (Op. and ORDER).
Even though DTA is a state agency, employees of DTA do not qualify as state employees for certain purposes. 2 Del. C. § 1325 provides that employees of DTA "shall not be considered state employees for purposes of wages, salaries, fringe benefits or for purposes of any other benefits which may accrue to state employees whether exempt or merit employees," but that they "shall be considered state employees for the purposes of participating in the group medical, insurance and deferred compensation plans available to state employees." The present case does not involve participation in group medical insurance or deferred compensation plans. Therefore, LaCombe did not qualify as a state employee when he was working at DelDOT in a DTA-funded position. Nevertheless, no Delaware statute, case law, regulation or Merit Rule prohibits non-state employees from supervising state employees. Raley bases her argument that non-state employees may not supervise state employees on an analogy to federal civil service law. Under federal law, only federal employees may supervise other federal employees. According to Raley, this Court should look to the more developed federal civil service law for guidance in the present case, and should conclude that only state employees may supervise other state employees. However, I cannot infer from the absence of any Delaware statute on the subject a legislative intent to mandate the federal model. Because no Delaware law prohibits non-state employees from supervising state employees, the Board did not err in finding that DelDOT had done nothing improper when it permitted LaCombe, a non-merit, non-state employee, to supervise the work of Raley, a state merit employee.
See 5 U.S.C. § 2105; see also Homer v. Acosta, D.C. Cir., 803 F.2d 687 (1986).
Raley's contention that planning functions could not be transferred between DTA and DelDOT also lacks merit. 29 Del. C. § 8401(b) enumerates the powers granted to the Department of Transportation. This statute provides, in pertinent part:
(b) The powers and duties of the Department of Transportation shall . ., include, but not be limited to, the following activities:
(1) Coordinating and developing, in cooperation with the federal government, other states, Delaware state agencies, counties, cities, councils and agencies comprehensive balanced transportation planning and policy for the movement of people and goods within the State; . . .
(4) To provide the necessary staffing, coordination and liaison required by present and future federal and state acts for transportation planning, programs, grant applications and required administration;
(5) Planning, designing, constructing, operating and maintaining those highway and public transportation systems under its jurisdiction. . . .29 Del. C. § 8401(b)(1) authorizes DelDOT to cooperate with Delaware state agencies, such as DTA, in coordinating transportation planning and policy. 29 Del. C. § 8401(b)(1), (4) and (5), when read together, permit DelDOT to assign non-merit employees from other state agencies, like DTA, to positions within DelDOT in order to meet DelDOT's staffing and transportation planning needs. Furthermore, the language of the FY96 Budget Act shows that the General Assembly recognized DelDOT's pre-existing authority to transfer employee functions from DTA to DelDOT's Division of Planning. Section 241 of this Act relates to the DTA-funded positions within DelDOT that were held by non-merit employees, such as LaCombe. Section 241 provides that " current employees holding these non-merit positions may continue to work for the Department as assigned until . . . new merit positions are filled competitively, or until six months from the effective date of the Act, whichever is earlier, any other state law to the contrary notwithstanding." This language demonstrates the legislature's implicit acknowledgment that, even before the enactment of this Act, DelDOT had the authority to assign non-merit employees of DTA to positions within DelDOT's Division of Planning.
70 Del. Laws, c. 118, § 241 (1995).
Id.
Id. (emphasis added).
Raley's argument that, prior to July of 1995, DelDOT had no legal authority to spend funds delegated to DTA is also without merit. In 1995, the State Auditor's office investigated these allegations of improper spending, but failed to find any unlawful transfer of funds.
2. Pre-selection that Allegedly Occurred Prior to the Transportation Planning Supervisor Interviews.
See Appellee's Answering Brief, Exhibit N, Raley v. Delaware Dep't of Transportation, C.A. No. 99A-10-001.
Raley next contends that the Board failed to give proper consideration to DelDOT's conduct prior to the actual interviews for the Transportation Planning Supervisor position. Raley argued before the Board that DelDOT had taken steps to pre-select LaCombe by placing him in a temporary position at the Division of Planning so that he could gain the experience necessary to compete for the Transportation Planning Supervisor position. According to Raley, the Board based its conclusion that no pre-selection had occurred on the mistaken belief that the parties had stipulated that LaCombe was and is qualified for the position and on the assumption that, if the interview process for the position was fair, then as a matter of law, the entire selection process was fair.
The record contains a Stipulation of Facts, which was signed by the attorneys for both parties. Paragraph four of this document states: "Daniel LaCombe is currently a Transportation Planning Supervisor for DelDOT. He was and is qualified for this position at the time he was selected." The Board reasonably interpreted this paragraph as an admission that LaCombe was qualified for the position. However, Raley attaches a more limited meaning to this paragraph. She interprets it to mean that LaCombe was qualified for the Transportation Planning Supervisor position at the time he was selected, but did not become qualified until DelDOT assigned him to a temporary position at the Division of Planning.
Id., Exhibit F.
Id.
Regardless of the meaning of this stipulation, there was other substantial evidence in the record to support the Board's conclusion that no pre-selection occurred. The Board pointed out in its opinion that, in the early 1990's, DelDOT had an immediate critical need for persons with expertise in the CAAA and ISTEA so that it could avoid missing the deadlines imposed by these Acts. These deadlines accelerated the need to fill certain positions within DelDOT's Division of Planning. The Board then concluded that LaCombe's transfer to a temporary position at DelDOT was motivated by the need to comply with these federal deadlines, and not by any desire to pre-select him for a permanent position. The Board also considered Abbott's testimony that he expressly told LaCombe that he would have to compete for a permanent position when it was posted if he wanted it. Additionally, the Board noted that LaCombe actually did compete for the position by participating in interviews, and that no irregularities occurred during the interview process. Finally, the Board relied on the parties' stipulation "that the interview panel considered all job experience reported by all applicants including, but not limited to, the assignments and experience of Mr. LaCombe in those positions within DelDOT held by them [sic] in 1993, 1994 and early 1995, and that [the] relevant experience held by the candidates was considered to be a favorable factor in the interview and rating process."
Raley, M.E.R.B. No. 9712112 at 26 (Bd. Op.).
Id.
See id.
Id.
Id. at 25, 26, and 30.
Raley, M.E.R.B. No. 9712112 at 29 (Bd. Op.) (emphasis added).
LaCombe had relevant experience doing planning work and dealing with CAAA and ISTEA issues even before he was assigned to DelDOT's Division of Planning. In 1991, when LaCombe began working as a Program Analyst at DTA, his first assignment was to read and understand ISTEA, which had just been enacted into law. LaCombe received a copy of the act from Mr. Reeb. He read the entire act and made dozens of notations. He also read the entire Conference Report for ISTEA and made notations of several of its provisions as well. LaCombe's work at DTA centered on issues relating to ISTEA and the CAAA. The record contains an extensive list of examples of the types of work LaCombe did while at DTA. Many of these examples describe projects involving the CAAA and ISTEA. This list and the other evidence in the record allowed a reasonable inference that LaCombe developed many of the skills necessary for the Transportation Planning Supervisor position even before he was transferred to DelDOT's Division of Planning. The record before the Board demonstrates that LaCombe became qualified for the position as a result of four years of gaining the necessary skills, rather than eight months at the Division of Planning.
Appellee's Answering Brief, Exhibit O, Raley v. Delaware Dep't of Transportation, C.A. No. 99A-10-001.
3. Lack of an Equal Opportunity Review.
Raley next argues that the Board erred in finding that the lack of an equal opportunity review for the Transportation Planning Supervisor position did not constitute evidence of pre-selection or procedural irregularities. DelDOT customarily does an affirmative action or equal opportunity review when it hires new employees. However, DelDOT did not conduct such a review for the position involved in this case. The evidence presented to the Board indicates that equal opportunity review is a voluntary procedure that DelDOT undertakes in order to ensure diversity of candidates. No statute or Merit Rule requires DelDOT to perform this review. The review procedure involves submitting draft interview questions to DelDOT's Human Resources Management Department to ensure that the questions are not unfair, illegal or inappropriate. Additionally, when DelDOT fails to hire minority or female candidates, a review may be conducted to make sure that the reasons for not hiring them are legitimate.
DelDOT provided the Board with a reasonable explanation for why it did not do an equal opportunity review for the Transportation Planning Supervisor position. Phillip Fenimore, the person who usually performed the review, was out of the office on military leave at the time. Fenimore later testified that the absence of an equal opportunity review was not unusual, because, at that time, DelDOT conducted such reviews on only about 80% of the positions. There is substantial evidence in the record to support the Board's conclusion that the lack of an equal opportunity review did not amount to pre-selection or a violation of the Merit Rules.
See id., Exhibit I (Leave Record of Philip R. Fenimore).
Id., Exhibit G (notes from Fenimore testimony).
4. The PCQ Process.
Raley also contends that DelDOT deviated from its normal procedures in preparing the PCQs for the Transportation Planning Supervisor position in order to facilitate the pre-selection of LaCombe. According to Raley, DelDOT assigned the duty of creating the PCQs to Carolann Wicks, an engineer whose job description did not include such activities. In addition, Raley considers Wicks' collaboration with Ralph Reeb in creating the PCQs to be further evidence of pre-selection. Raley maintains that Wicks included certain selective requirements and preferences in the job description in order to give LaCombe an unfair advantage. Furthermore, Raley claims that the PCQs did not accurately describe the actual position.
There was substantial evidence that DelDOT had no intent to facilitate the pre-selection of LaCombe. Eugene Abbott, the Director of DelDOT's Division of Planning, needed help in completing the PCQs for the new positions. He first assumed that the Human Resource Management Department would create the PCQs, but later found out that it would only review the PCQs after the Division of Planning had created them. Abbott needed to fill the new positions quickly in order to comply with federal deadlines. For this reason, he decided to seek outside assistance in preparing the PCQs. Abbott knew that PCQ preparation required someone familiar with the Hay System of personnel classification, and had heard of a consulting firm, Perry Place Partnerships, which had Hay System experience. Abbott attempted to hire this firm to create the PCQs. However, Abbott soon learned that other persons within DelDOT objected to his hiring Perry Place.
See Hahn testimony, Tr. Bd. Hr'g at 37, Raley v. Delaware Dep't of Transportation, M.E.R.B. No. 9712112; see also Memo from Eugene Abbott to Ann Canby requesting authorization to hire Perry Place.
As previously noted, Harbeson, DelDOT's Director of Preconstruction and Chief Engineer, suggested that one of his staff members, Carolann Wicks, could prepare the PCQs. She had experience in drafting PCQs and had attended a training session regarding the Hay System. Harbeson suggested that Wicks could work on the PCQs from her home office during her maternity leave. Abbott enthusiastically agreed to this suggestion.
Stipulation of Facts, Appellee's Answering Brief, Exhibit F, ¶ 17, Raley v. Delaware Dep't of Transportation, C.A. No. 99A-10-001.
Tr. Bd. Hr'g at 281-83, Raley v. Delaware Dep't of Transportation, M.E.R.B. No. 9712112.
Wicks worked on several PCQs, including those used for the two Transportation Planning Supervisor positions. She received information from Reeb when she was drafting the PCQs and made changes to drafts that he submitted. When Wicks finished drafting the PCQs, she gave them to Abbott for review. Abbott delegated the task of reviewing the PCQs to Reeb and allowed him to make corrections. Abbott then submitted the PCQs to the State Personnel Office, which performed a final review of the job descriptions.
Stipulation of Facts, Appellee's Answering Brief, Exhibit F, ¶ 18, Raley v. Delaware Dep't of Transportation, C.A. No. 99A-10-001.
Id., ¶ 19.
Id., ¶ 20.
Id., ¶ 621.
Id.
Substantial evidence exists in the record to support the Board's conclusion that no attempt to pre-select LaCombe took place during the PCQ process. The Board could have reasonably concluded from the aforementioned evidence that Abbott assigned the task of preparing the PCQs to Wicks out of necessity, in an effort to comply with federal deadlines. Additionally, the Board could reasonably conclude from this evidence that the inaccuracy of the job descriptions also resulted from these time pressures. The Board was aware that Reeb had assisted Wicks in drafting the PCQs. However, because Wicks had used a number of sources of information in preparing the job descriptions and the State Personnel Office had ultimately conducted a final review of the PCQs, the Board concluded that Reeb's participation in the PCQ process did not constitute evidence of pre-selection.
See Raley, M.E.R.B. No. 9712112 at 27 (Bd. Op.).
See id.
The position for which Raley and LaCombe both applied was Position No. 66811. The job description for this position included selective requirements and preferences. DelDOT awarded Position No. 66811 to Cantalupo. The position that DelDOT later awarded to LaCombe was Position No. 67284. The job description for Position No. 67284 did not specify any selective requirements or preferences. Raley alleges that DelDOT included selective requirements and preferences in the description for Position No. 66811 for the purpose of creating an advantage for LaCombe. However, DelDOT's decision to award Position No. 66811 to Cantalupo demonstrates that this allegation is unfounded. Raley's contention that Position No. 67284 was a `stealth' position that DelDOT created after the unexpected emergence of candidate Cantalupo also lacks evidentiary support.
Stipulation of Facts, Appellee's Answering Brief, Exhibit F, ¶ 27, Raley v. Delaware Dep't of Transportation, C.A. No. 99A-10-001.
Id., ¶ 644.
Id., ¶ 647.
Id., ¶ 628.
B. The Board Properly Considered the Effect of the Posting and Advertising Procedures Followed during the Filling of the Transportation Planning Supervisor Positions.
The second point of error Raley raises is that the Board failed to give proper legal effect to procedural errors that allegedly occurred during the filling of the Transportation Planning Supervisor positions. According to Raley, these procedural errors included neglecting to advertise, post or conduct interviews for Position No. 67284, and failing to inform the existing candidates for Position No. 66811 that the selective requirements and preferences for that position did not also apply to Position No. 67284. Raley claims that this had the legally significant effect of reducing the applicant pool for the second Transportation Planning Supervisor position by discouraging additional potential applicants who did not meet the preferential and selective requirements for Position No. 66811 from applying for Position No. 67284.
Chapter 7.000 of the Merit Rules governs the procedure for announcing vacant positions. Merit Rule 7.0111 gives the appointing authorities a great deal of discretion in deciding how to make these announcements. The "[a]ppointing authorities may post a vacancy for agency employees (intra-agency and/or interagency) only or may announce a vacancy publicly as long as agency employees are considered in the filling of the vacancy." Merit Rule 7.0200 provides the appointing authorities with further guidance on how to post and/or advertise vacant positions:
Merit Rule 7.0111.
When posting a vacant position, the appointing authority shall post intra-agency vacant positions for a period of at least five (5) working days and inter-agency positions for at least fifteen (15) calendar days before the closing date for receipt of applications. Notices shall contain all pertinent information about the positions being filled.
When making public announcements of vacant positions, the appointing authority shall announce vacancies in the classified service at least fifteen calendar (15) days before the closing date for receipt of applications. Examination notices shall be given as wide a distribution as the appointing authority determines necessary, in the classified service, in the press, on radio and television and through contact with professional associations, union organizations, civic groups, educational institutions and neighborhood groups. Examination announcements and notices shall contain all pertinent information about the positions being filled.
Under the rules cited above, DelDOT had no legal obligation to advertise publicly for Position No. 67284. Instead, DelDOT had discretion to either post the vacancy in house, with other agencies or to announce it publicly. Therefore, DelDOT did not violate the Merit Rules by failing to advertise Position No. 67284.
The parties disagree over whether DelDOT posted Position No. 67284 within the agency. The Board regarded this issue as a "moot point" and found it unnecessary to resolve the factual dispute. The Board reasoned that "any `procedural irregularities' associated with the posting and lack of advertising of Position No. 67284" were reasonably explained by the testimony of Annamay Decker. In the Board's opinion, these alleged procedural errors did not disadvantage Raley or interfere with her consideration for the position and did not amount to credible evidence that DelDOT had pre-selected LaCombe.
Raley, M.E.R.B. No. 9712112 at 29 (Bd. Op.).
Id.
Id..
Decker testified before the Board that DelDOT had, in fact, posted Position No. 67284. At the time of posting, the position was temporarily identified as Position No. 16, and the announcement for the position was assigned Posting No. 95-20. According to Decker, even though DelDOT did not specify any selective requirements or preferences for Position No. 67284, the same special requirements that applied to Position No. 66811 also applied to Position No. 67284. Decker explained that the omission of these special requirements for the second Transportation Planning Supervisor position probably resulted from the department's haste in trying to fill a number of new planning positions. Decker also provided an explanation for DelDOT's failure to advertise Position No. 67284. DelDOT had advertised widely for Position No. 66811 in both local and out-of-state newspapers, with the expectation of getting many applicants. However, only a handful of people actually applied for the position. Disappointed by the small number of applicants for the first Transportation Planning Supervisor position, Decker decided that she would not advertise for the second position, because it would not be cost-effective to do so. So, after the interviews for Position No. 66811 had taken place, Decker called each of the unsuccessful applicants and got their permission to consider the interviews already conducted for filling Position No. 67284.
Tr. Bd. Hr'g at 243, Raley v. Delaware Dep't of Transportation; M.E.R.B. No. 9712112.
Id. at 244.
See id. at 133-34.
See id. at 134.
Id. at 123.
Tr. Bd. Hr'g at 123, Raley v. Delaware Dep't of Transportation, M.E.R.B. No. 9712112.
Id. at 123-24.
Id. at 124-25.
Decker's testimony constitutes substantial evidence that no violation of the posting and advertising requirements of the Merit Rules occurred. According to Decker's testimony, candidates for Position No. 67284 actually did have to have the same special qualifications as candidates for Position No. 66811, even though the applicants were never informed of this fact. Regardless of whether DelDOT actually posted Position No. 67284, it was reasonable for the Board to infer that the posting and advertising of Position No. 66811, in effect, served as the posting and advertising of both Transportation Planning Supervisor positions. Similarly, the Board reasonably inferred that the interviews for Position No. 66811 effectively functioned as interviews for both Transportation Planning Supervisor positions. Decker's testimony also supports the Board's conclusion that there was no intent to pre-select LaCombe.
See id. at 133-34.
IV. CONCLUSION
Accordingly, because the decision of the Board is supported by substantial evidence and is free of legal error, it is AFFIRMED .
IT IS SO ORDERED.