Case No. 98CV5863 Plaintiffs' Opening Breif November 1998

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[Record Vol. XV, p. 6853,¶ 3] DOP also states in its Position Statement that they expect the professional human resource classifiers in other states are in a much better position to determine the most accurate match to Colorado's Capsule descriptions [Record Vol. XV, p. 6853, ¶4]. However when the other states respondents made matches in their judgment which were appropriate, in some cases, DOP chose to arbitrarily overrule those matches (see Paragraph above regarding California) and move them to different levels or eliminate them completely, or DOP made arbitrary matches when no description capsules were given without clearly understanding the responding state's intent. The DOP failed to implement a specific recommendation of the FLA audit of DOP's system maintenance procedures for calculation of pay relationships, but rather capriciously relied on its own belief (DOP's phrase) that DOP's method of calculation was more valid, but offered no further explanation [Nary. Rep. p. 2, Record Vol. XV, p. 6863 ¶4]. The DOP decision - making process included a "consensus building" (DOP's phrase) component to determine the grade adjustments for each class /level. [Nary. Rep, p. 5, Record Vol. XV, p. 6866] During "consensus building," DOP used certain data to establish a pay differential between Engineering classes and EPS -PSRS classes, and then ignored the same data that indicated the existence of a pay differential between EPS classes and PSRS classes based on DOP's capricious introduction of "internal equity" (DOP's phrase). [Nary. Rep., p. 2, Record Vol. XV, p. 6863] Rather than relying on established, acceptable statistical analysis and the recommendations of the FLA audit, the DOP opted for the vague concept of "internal equity." The Defendant claims "In response to the "consensus" issue, the Department uses this approach as a matter of course in finalizing the results of system maintenance studies. This is an internal management tool designed to bring the major players in the Department of Personnel together to agree before the action goes beyond the Department. This internal coordination and decision making is our management's prerogative." [Record Vol. XV, p. 6856, 14] In its Position Statement, the Defendant explains "Internal Equity" as "A part of the decision making process was a discussion on the role of external equity (market levels) versus internal equity (employer's priorities). Internal equity relates to the value that state government places on certain occupations that may differ from private sector jobs. When solid, consistent and reliable date is available, the external equity (market) takes precedence; however, in the absence of market data or when it is inconsistent or varies, management can apply the principles of internal equity." [Record Vol. XV, p. 6856] The Plaintiffs conclude, based on the Defendant's explanation above, Defendant's final decision was not based on solid, consistent or reliable data or "external equity" would have been used, but rather it was based on data which was inconsistent or varied, so management had to rely on its arbitrary and capricious concept of "internal equity ". Prejudice Prior to conducting the supplemental salary survey, the Defendant was unfairly prejudiced and because of this prejudice could not conduct a fair salary survey. This has been shown in written statements and in agency action. Immediately prior to undertaking the supplemental salary survey, but outside of that process, the Defendant had formed the belief that: (1) the EPS class should be paid less than engineers, and Page 6