#### Wenceslaus DIAS, M.D., Plaintiff-Appellant, v. The STATE of Colorado, DEPARTMENT OF INSTITUTIONS, Dr. Frank Traylor, Executive Director, Department of Institutions, James A. Stroup, State Controller, Haydee Kort, M.D., Superintendant, Colorado State Hospital, Defendants-Appellees.

No. 85CA1414.

Colorado Court of Appeals, Div. I.

June 25, 1987.

Gene L. Brietenbach, P.C., Gene L. Briet-enbach, Pueblo, for plaintiff-appellant.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Carolyn Lievers, Asst. Atty. Gen., Denver, for defendants-appel-lees.

METZGER, Judge.

Plaintiff, Wenceslaus Dias, M.D., appeals a judgment of the district court affirming the State Controller’s denial of cash payments for plaintiff’s overtime work. We affirm.

On January 2, 1980, plaintiff began working at the Colorado State Hospital as the only full-time surgeon on staff. From January to June of 1980, he worked 1,693 hours overtime, on an on-call basis. He was given to understand by his supervisors that he would be allowed to take compensatory time or would be given other compensation for working overtime.

After another surgeon was hired on June 30, 1980, plaintiff attempted but was unable to use all of his compensation time, and had 1,276 hours remaining when his employment at the State Hospital ended. Consequently, he sought a cash payment in lieu of compensatory time. When payment was denied, he filed a grievance under the Fiscal Rules of the State of Colorado. The State Controller denied this request on February 25, 1985, and that decision was affirmed by the district court.

Plaintiff asserts that the decision of the State Controller refusing to pay him overtime, lacks a rational basis, is arbitrary and capricious, unconscionable, and constitutes an abuse of discretion. Thus, he argues, the district court’s affirmance of the denial of his compensation was error. We disagree.

In order to set aside a decision by an administrative agency on the basis that it is arbitrary and capricious, the reviewing court must find that there is no competent evidence supporting the agency’s decision. *Dolan v. Rust,*195 Colo. 173, 576 P.2d 560 (1978). The reviewing court may not substitute its own discretion for that reposed by statute in another tribunal. *St. Luke’s Hospital v. Colorado Civil Rights Commission,*702 P.2d 758 (Colo.App.1985).

Here, the record shows that the State Controller found plaintiff to be an employee “exempt” from receiving cash payment *546for overtime work in accordance with State Fiscal Rules Chapter 2, §§ 1.30.01 and 1.12.07 and § 24-30-202(18)(e), C.R.S. (1982 RepLVol. 10). Plaintiff does not contest this determination of his classification.

State Fiscal Rule 2.40 provides guidelines for resolving an exempt employee’s claim resulting from overtime work performed:

> “The salary level of employees who are exempt from overtime pay takes into account that it may be necessary for the employee to work a reasonable amount of overtime. However, there may be unusual situations in which an ‘exempt’ employee is required to work significant amounts of overtime for an extended period of time.

> In such an event, the department executive director may grant compensatory time off to an exempt employee. Such time off shall not exceed one hour off for each hour of overtime worked.”

*See also*§ 24-30-202(18)(e)(II), C.R.S. (1982 RepLVol. 10).

Thus, as an exempt employee, plaintiff may have been entitled to compensatory time, but was not entitled to cash payment for overtime he worked. We recognize that because plaintiff is no longer employed by the State Hospital he cannot take compensatory time as provided in the Fiscal Rules; however, there is no authority for awarding him a cash payment.

Accordingly, because the record contains competent evidence supporting the Controller’s decision, and because there exists no rule or statute which would authorize a different result, we conclude that the Controller’s refusal to authorize payment for overtime work was not arbitrary or capricious. Therefore, the judgment of the district court was correct.

Because this appeal is neither frivolous nor groundless, we decline to award attorney’s fees as requested by defendants. Judgment affirmed.

PIERCE and BABCOCK, JJ., concur.