“No legal basis” for 90% pay reduction for Delta Independent Science Board members

In October 2020, the Delta Stewardship Council changed the compensation structure for the Delta Independent Science Board. From 2010-2020, the nationally and internationally prominent scientists on the board were compensated through contracts which paid professional scientific rates. The Council changed the compensation to a salary of $100 per diem. This change crippled the Delta Independent Science Board.  Since October 2020, the Board’s meeting notices have had some version of this notice of curtailment:
Curtailment of Delta ISB Activities

As discussed at recent Delta ISB meetings, the current appointment structure of Delta ISB members necessitates greatly curtailing the agenda and activities of the Delta ISB to a much lower level. Substantial delays in many of the Delta ISB’s anticipated and legislatively mandated reviews, products, and activities are expected. The Delta ISB is committed to supporting science for the Delta’s problems and problem-solving, and looks forward to returning to its high level of productivity as soon as the State fully resolves this issue.
It  wasn’t until April 15, 2021, that the Delta Stewardship Council Chair, Susan Tatayon, sent a letter to Delta Independent Science Board members, providing information on the reasons for the change:
I am writing to provide information regarding the recent reclassification of Delta Independent Science Board (Delta ISB) members to being employees of the State of California compensated at $100 per diem, rather than independent contractors as had been the method of compensation prior to 2020… This change was initiated in 2020, when a routine review of Council contracts and further analysis identified that pursuant to California law, members of a state board should be classified as state employees, as described in more detail below.
When California Water Research’s attorney, Gwynne Pratt, reviewed the legal arguments in the letter, she found no legal basis for the reclassification. She also found that when it took this action, the Delta Stewardship Council acted beyond the scope of its authority and contrary to applicable law and procedure.  
At our request, Gwynne Pratt sent a letter on May 10, 2021 to Eraina Ortega, the Director of California Department of Human Resources (CalHR.) On behalf of California Water Research, she formally requested that CalHR revisit and rescind the $100 per diem salary classification created for the Delta Independent Science Board members.
Request re: Unapproved Exempt Position Classification Created by the Delta Stewardship Council

In 2020, the Delta Stewardship Council decided that members of the Delta Independent Science Board (“Delta ISB”) were to be exempt employees, with a salary of $100.00 per diem. Our review establishes that when it took this action, the Delta Stewardship Council acted beyond the scope of its authority and contrary to applicable law and procedure. For a decade, the Delta Stewardship Council has contracted with the Delta ISB members to obtain and reimburse their services. Nothing has changed. There is no legal basis for
precipitously classifying them as exempt employees of the Delta Stewardship Council, entitled only to $100 per diem.

Furthermore, these actions crippled the Delta ISB’s legislatively mandated work in FY 2020-21 as they resulted in funding cuts of over 90% to the Delta ISB…

We respectfully request CalHR revisit and rescind the action of setting a $100 per diem salary for Delta ISB members under Government Code section 19818.6. The duties and responsibilities of Delta ISB are not similar other state boards. Delta ISB members are required to be “nationally or internationally prominent scientists with appropriate expertise to evaluate the broad range of scientific programs that support adaptive management of the Delta.” (Wat. Code § 85280(a)(2).) The legislature also intended that Delta ISB members themselves provide oversight the “scientific research, monitoring, and assessment programs that support adaptive management of the Delta through periodic reviews of each of those programs…” (Wat. Code § 85280(a)(3).)

Paying Delta ISB members $100 per diem is also not comparable to the previous compensation for the Delta ISB. From 2017-2020, the Delta Stewardship Council requested authorization to pay members for up to two meetings a month, 7 days of work per meeting, eight hours per day, at the Delta Stewardship Council’s contract rate for independent scientific experts.
CalHR has not yet responded to Gwynne Pratt’s letter, but Senate Bill 821 was amended on June 8, 2021 to include a new Civil Service pay classification for Delta ISB members Research Specialist V.
More about attorney Gwynne Pratt
Gwynne Pratt has practiced law for 42 years, and was a staff attorney for the California Department of Rehabilitation for 28 years, as well as being a staff attorney for the Appeals Board of the Department of Rehabilitation, before the Appeals Board was abolished. Gwynne brings a depth of experience with state agency administration to our campaign to restore funding to the Delta Independent Science Board.

Leave a Reply