ATTACHMENT A THE PROPOSED DECISION

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ATTACHMENT A,BEFORE THE,BOARD OF ADMINISTRATION,CALIFORNIA PUBLIC EMPLOYEES RETIREMENT SYSTEM. STATE OF CALIFORNIA, In the Matter of the Appeal of Membership Determination. MARK R DANA,Respondent,SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT. Respondent,Agency Case No 2018 0432,OAH No 2018120359. Although this matter arises from an appeal by the San Francisco Bay Area. Rapid Transit District BART the statement of issues identifies BART as a respondent. CALIFORNIA PUBLIC EMPLOYlES,retirement system,FILEDJDefeai 20J5.
PROPOSED DECISION, Administrative Law Judge Juliet E Cox Office of Administrative Hearings State. of California heard this matter on July 10 11 and 30 2019 in Oakland California. Charles H Glauberman represented complainant Renee Ostrander Chief of the. Employer Account Management Division California Public Employees Retirement. System CalPERS, Respondent Mark R Dana was present representing himself. Attorneys Arthur A Hartinger Ian T Long and Jeana A Zelan represented. respondent BART, The record was held open to permit the parties to submit written argument. Each party provided timely initial argument and timely reply to the other parties. arguments The matter was submitted for decision on November 20 2019. FACTUAL FINDINGS, 1 BART is a public agency that has contracted with CalPERS to make many. of BART S employees CalPERS members The Public Employees Retirement Law PERL. governs the relationship between BART and CalPERS and establishes criteria for. CalPERS membership, 2 Respondent Mark R Dana currently is a BART employee Since May 27.
2008 BART has considered Dana an employee who is eligible for CalPERS. membership and has treated him as a CalPERS member. 3 In September 2014 Dana completed a CalPERS form requesting service. credit for work he had performed for BART before May 27 2008 Specifically Dana. seeks CalPERS credit for service he rendered to BART between January 2 1997 and. May 26 2008 He alleges that during this period he met all criteria under the PERL to. be eligible for CalPERS membership by virtue of his work for BART. 4 By letter dated December 20 2017 a CalPERS staff member notified both. Dana and BART that CalPERS staff members considered Dana eligible for CalPERS. membership from July 1 1997 to May 26 2008 By letter dated February 14 2018. BART appealed this determination, 5 Acting in her official capacity as Chief of the Employer Account. Management Division complainant Renee Ostrander prepared and served a statement. of issues to both Dana and BART The statement of issues alleges that Dana qualifies. for CalPERS membership between July 1 1997 and May 26 2008 because his work for. BART during this period met the PERL s criteria for employment conferring CalPERS. eligibility Complainant alleges that BART erred by not enrolling Dana as a CalPERS. member beginning July 1 1997 and that both BART and Dana owe contributions to. CalPERS for Dana s work during this period,Dana s Relevant Employment History. 6 Dana s primary professional experience is in construction management. and hazardous materials abatement He has worked for public and private employers. in California since 1990 or before, 7 In late 1996 or early 1997 Dana began working for a private engineering. consulting firm Dana continued to work for this firm until May 26 2008 although its. name and business organization changed through these years For simplicity the. parties agreed to call Dana s employer at all times material to this matter Earth Tech. 8 Earth Tech organized Its business Into groups serving different client. types Dana was In Earth Tech s Transportation Group which served primarily public. agencies operating rail transit systems BART the San Francisco Municipal. Transportation Authority and the Valley Transportation Authority were three of Earth. Tech s major Transportation Group clients In the San Francisco Bay Area between 1997. 9 Earth Tech paid Dana an annual salary Earth Tech also maintained a. deferred compensation retirement plan for which Dana was eligible. 10 Each year Earth Tech and Dana set a target for the number of hours. Earth Tech would bill to clients for Dana s work typically between 80 and 90 percent of. Dana s total working hours that year In addition to services for which Earth Tech billed. Its clients Dana also performed work to advance Earth Tech s own Interests such as. Identifying new business opportunities for Earth Tech and contributing to Earth Tech s. efforts to win contracts with new clients and new contracts with ongoing clients. 11 Dana s Earth Tech supervisors evaluated his performance each year They. solicited Information for these annual evaluations from representatives of the Earth. Tech clients for whom Dana had worked They also considered whether he had met his. blllable hour target for the year and weighed his contributions to Earth Tech s. business development efforts Earth Tech and Dana used these evaluations to set. qualitative and quantitative goals and to set Dana s salary for the next year. 12 In 2001 Earth Tech promoted Dana to Program Manager This promotion. Increased Dana s responsibility for supervising other Earth Tech employees and Earth. Tech subcontractors As a Program Manager Dana also prepared Earth Tech s client. invoices and prepared reports for Earth Tech s executive team about Earth Tech s. financial performance on the projects he supervised. 13 During his tenure at Earth Tech Dana received training from Earth Tech. on issues such as ethics and professionalism He also received an Earth Tech employee. 14 While Dana worked for Earth Tech he had an Earth Tech telephone. number and email address and Earth Tech business cards Earth Tech provided Dana. with a mobile telephone and with an automobile for business use. 15 At Earth Tech Dana worked primarily on projects for BART In many. years BART was the only Earth Tech client Dana served He sometimes spent 90. percent or more of his work time on tasks for BART although in other periods he. spent SO percent or less of his time on work for BART and the rest on work for Earth. Tech itself or for Earth Tech s other clients He recalls that he spent about four months. in 2004 on projects for the Federal Emergency Management Authority and about a. week in 2000 on a project for Pacific Gas Electric Company Precise time records. from Dana s employment at Earth Tech were not in evidence. 16 Dana began seeking a staff position at BART in 2004 because he. understood BART s health and retirement benefits to be better for him and his family. than the health and retirement benefits he was receiving at Earth Tech He applied for. open positions more than once before BART hired him The evidence did not establish. that Dana ever asked BART to classify him as an employee while he worked for Earth. Tech or that he sought such retroactive reclassification from CalPERS before 2014. 17 Dana resigned his employment at Earth Tech effective May 26 2008. 18 On May 27 2008 Dana began ennployment at BART He first received. and acknowledged BART s Code of Conduct Conflict of Interest and Outside. Employment policy statements on this date He also signed an Oath of Allegiance for. the first time on this date promising to bear true faith and allegiance to the. constitution of the United States and the constitution of the State of California. 19 Dana s starting annual salary at BART was about 75 percent of his final. annual salary at Earth Tech,Earth Tech s and Dana s Services to BART. 20 Between 1997 and 2008 BART had consulting agreements with several. private engineering and construction management firms In addition to Dana three. people who worked for BART during this period testified about these business. relationships Paul Medved who continues as a BART Group Manager Marvin Snow. who oversaw several such agreements but has retired and John Gee who worked as a. BART engineer but has retired, 21 Medved Snow and Gee explained that BART used private consulting.
firms for construction management chiefly to give BART flexibility in meeting its. construction needs They testified that BART s construction management needs. fluctuate considerably from year to year depending on factors including the. availability of state and federal transportation capital improvement funds If BART. maintained an employed engineering staff large enough to meet its needs in peak. construction periods it would either have to lay people off during slow periods or. leave its employees idle Instead for major construction activities BART contracts with. private consulting firms that can provide people with appropriate experience on a. project by proJect basis,Written Agreements Between BART and Earth Tech. 22 When Dana began working at Earth Tech Earth Tech provided services to. BART The first written agreement in evidence between BART and Earth Tech is from. April 1998 and resulted from a competitive bidding process in which BART selected. Earth Tech as one of several qualified consultant firms The April 1998 agreement. committed BART to using Earth Tech s services for at most five years. 23 BART and Earth Tech made a similar agreement in March 2002 again. after a competitive bidding process This agreement also committed BART to using. Earth Tech s services for at most five years Although Earth Tech continued to serve. BART after March 2007 no further agreement between BART and Earth Tech was in. 24 Both the 1998 agreement identified in Finding 22 and the 2002. agreement identified in Finding 23 stated that the services they described cannot be. performed satisfactorily by the officers and employees of BART. 25 The 1998 agreement between BART and Earth Tech called for Earth Tech. to assist and advise BART in construction management and procurement activities. in accordance with the requirements in the BART Resident Engineering Manual and. the Standard Specifications as provided by BART Each year the agreement called for. Earth Tech to provide an annual work plan to BART describing services Earth Tech. would perform during that year and confirming the compensation BART would pay to. Earth Tech for those services The 2002 agreement was substantially the same. 26 The 1998 agreement between BART and Earth Tech gave Earth Tech and. its employees no authority to contract or enter into any other agreement in the name. of BART It also reserved to Earth Tech full control over the employment direction. compensation and discharge of all persons employed by Earth Tech who are assisting. in the performance of services by Earth Tech to BART The 2002 agreement was. substantially the same, 27 The 1998 and 2002 agreements between BART and Earth Tech listed. Dana among Earth Tech s key personnel for Earth Tech s services to BART. Course and Scope of Dana s Work for BART, 28 Medved Snow Gee and Dana all testified similarly regarding how BART. typically organized construction activities between 1997 and 2008 A BART employee. usually acted as Project Manager supervising several related construction projects at a. time For each project the BART Project Manager would assign a Resident Engineer to. oversee construction ensuring that both BART and BART s construction contractor. followed all construction specifications and contract terms BART sometimes used. BART employees as Resident Engineers On many construction projects however. BART asked consultants including Earth Tech to supply personnel for this role. 29 Between July 1 1997 and May 26 2008 BART maintained several. successive versions of its Resident Engineer s Manual The Resident Engineer s Manual. described in great detail how Resident Engineers working for BART whether as BART. employees or as consultants should administer construction contracts for BART. facilities, 30 A Resident Engineer relies on other people including construction. inspectors to ensure that construction occurs according to project specifications. When private consultants served as Resident Engineers those Resident Engineers drew. on their firms employees or subcontractors for these support services A Resident. Engineer who interacted with construction personnel at the worksite also would. coordinate activities with an Office Engineer who maintained BART s documentation. about every aspect of construction and reviewed invoices for construction services. BART sometimes used BART employees as Office Engineers but sometimes asked. private consultants who had provided Resident Engineers to provide Office Engineers. 31 Before his promotion described above in Finding 12 Dana served BART. primarily as a Resident Engineer Dana followed the Resident Engineer s Manual. faithfully when he served as a Resident Engineer for BART construction projects After. his promotion Dana continued to act as a Resident Engineer for BART but also. supervised other Earth Tech Resident Engineers staff members and subcontractors. Dana s resignation letter to Earth Tech recommended another Earth Tech employee to. replace Dana as Earth Tech s primary contact for BART work. 32 Dana had a workspace at BART s downtown Oakland headquarters He. had a badge that gave him access to secure areas of the building although the badge. noted prominently that he was a CONSULTANT He had a BART telephone number. and email address which did not change after May 27 2008 BART provided a hard hat. and safety vest for Dana to wear at BART worksites. The matter was submitted for decision on November 20 2019 FACTUAL FINDINGS 1 BART is a public agency that has contracted with CalPERS to make many of BART S employees CalPERS members The Public Employees Retirement Law PERL governs the relationship between BART and CalPERS and establishes criteria for CalPERS membership 2 Respondent Mark R Dana currently is a BART employee Since

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