Case No. 98CV5863 Plaintiffs' Opening Breif November 1998

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SUMMARY OF ARGUMENTS In an effort to justify its view that the EPS and PSRS classes were overpaid, the DOP conducted an in -house survey of other states' salary structures. In doing so, the DOP did not follow procedures that it is required to use for other salary - setting functions under state statutes and its own regulations. While those procedures may not be mandatory in the case of a system maintenance study, the contrast between how the Total Compensation Survey is conducted and how DOP performed in this instance highlights the arbitrary and capricious nature of the action complained of herein. Defendants held an arbitrary position that employees in the EPS and PSRS series were overpaid and conveyed that prejudice to all survey respondents, thereby influencing the integrity of the resulting data. The results of the system maintenance study are arbitrary and capricious, tainted by the preconceived bias, and violate the requirement for fair sampling. The Plaintiffs believe the Defendant Director of DOP abused his discretion and failed to meet his obligations under the state Personnel System by refusing to allow Plaintiffs an opportunity to make oral statements, by providing insufficient review of his staff's actions and documents, and by not adhering to his own statements. ARGUMENTS Flawed Process and Anal DOP claims that three sets of data were used as a basis for JEL 98 -11 [Record Vol. XV, pp. 6863 ]. The first data set was data collected by Effective Compensation, Inc., (ECI) in which the DOP believes confirms that the pay grades for the physical and environmental scientists were too high. These data are the DOP's stated reason for undertaking the System Maintenance Study, while Andre Pettigrew, DOP Director stated that the ECI data for 1995 -97, was "... the least reliable and valid." and "... was excluded from the final calculations" [Nary Rep., pp. 2 -3, Record Vol. XV, pp. 6863 -64]. However, in an independent audit conducted by Fox Lawson & Associates (FLA), their finding is that "... the ECI survey does report formal structure midpoint and percentile data. Since structure midpoints are one of the primary statistics utilized bythe Department of Personnel for its analyses, it seems that this source does meet the criteria for inclusion in the annual survey." [FLA Audit, Record Vol. XV, p. 7187] The second data set was the historical third -party survey data that were used to generate salary relationship information from the 1996 -98 surveys. The data were never provided to Plaintiff, and were not found in the record, so it is impossible for the Plaintiffs to assess the accuracy of DOP's use of these data. The DOP's analysis of the data shows that the Physical Scientist IV position was underpaid according to the market in 1996 and 1997. No data for 1998 was available at that time. [Nary. Rep. p. 3, Record Vol. XV, p. 6864] The third data set was data collected from the "Colorado's 1997 Health/Environmental Scientist & Engineer Survey." [Record Vol. XV, p. 6900 - 7181], which confirms that the only data used was that which was collected through DOP's in -house survey: "Colorado's 1997 Health/Environmental Scientist & Engineer Survey." Page 2