print logo
Main Content Anchor

Unlawful Appointment Investigation Delegation Agreement Template

​Unlawful Appointment Investigation Delegation Agreement Template

This delegation agreement will be signed by each department's Director, or an executive level designee. Having the highest level of department management sign the Delegation Agreement reflects the California Department of Human Resources (CalHR’s) expectation that human resources staff will have executive support on difficult or unpopular allocation decisions when those decisions reflect an effort to adhere to sound allocation principles. In addition to the department's Director, this delegation agreement will also be signed by each department's Chief of Administration, Chief of Human Resources, and the Personnel Officer, depending on structure.

 

On behalf of the CalHR, this delegation agreement will be signed by the Delegation Project Manager and each department's Personnel Management Division (PMD) Consultant.

 

DELEGATION AGREEMENT FOR UNLAWFUL APPOINTMENT INVESTIGATIONS BETWEEN[DEPARTMENT NAME] AND THE CALIFORNIA DEPARTMENT OF HUMAN RESOURCES

Pursuant to Government Code section 19257.5, the California Department of Human Resources (CalHR) has authority to void unlawful appointments within a year. CalHR's Personnel Management Division (PMD) chooses to administer this authority via this Unlawful Appointment Investigation Delegation Agreement with [Department Name].


The [Department Name] agrees to work in partnership with CalHR PMD to implement the delegation plan outlined in this Agreement. This Delegation Agreement is developed in accordance with CalHR's objective of encouraging partnerships between departmental human resources offices in order to simplify the personnel management system for Unlawful Appointment investigations and to optimize its effectiveness. This Delegation Agreement is intended to provide the [Department Name] with the authority and responsibility for reviewing and acting on the personnel management program elements identified for delegation.

 

A. GENERAL TERMS AND CONDITIONS

[Department Name] and CalHR understand and accept the following legal limitations on our scope of authority for resolving unlawful appointments:


Pursuant to the California Constitution Article VII, Section 1, and Government Code section 19050, departments shall fill positions in strict accordance with the civil service laws and rules, which generally require that positions are filled via merit-based appointments.


Pursuant to Government Code section 19257.5, CalHR has authority to void unlawful appointments from the beginning of such unlawful appointments within a year after they are made, and with this agreement, that authority is delegated to [Department Name].


The State Personnel Board (SPB) is ultimately responsible for enforcing the civil service statutes that make up the merit system and retains broader authority to void unlawful appointments even beyond CalHR's statutory one-year limit when there is evidence of bad faith on the part of either or both the department and employee, and/or where the action(s) or omission(s) found to render the appointment(s) unlawful resulted in a selection process not based solely on merit or that significantly disadvantaged the other candidates.


Both parties agree to these fundamental principles of a merit-based civil service system for appointments:

 

California Code of Regulations, section 243 defines the requirements for an appointment to be considered made and accepted in "good faith" and therefore lawful. [Department Name] is charged with knowledge of and responsibility for maintaining awareness of current SPB regulatory requirements related to appointments and for ensuring internal hiring practices meet the standards for lawful appointments as established by SPB and enforced by CalHR and SPB.

 

Unlawful appointments may occur for a variety of reasons including administrative errors, oversight, misinformation, or, in rare cases, attempts to circumvent the State's civil service system. [Department Name] shall take proactive measures to ensure internal hiring practices are lawful.

 

Common reasons that an appointment is considered unlawful include, but are not limited to, the following:

  • Transfer of an individual based on inaccurate interpretation of the transfer requirements.
  • Appointment of an individual from a non-reachable rank of the certification list.
  • Appointment of an individual with no civil service appointment eligibility.
  • Appointment of an individual who does not meet the minimum qualifications of the classification.
  • Short duration appointment (60 days or less), which intentionally provides the employee with an eligibility advantage to which he/she would not otherwise be entitled.

 

If [Department Name] encounters a potential unlawful appointment that appears not to be due to one of the most common reasons listed above, or appears to involve a backdate or correction of appointment beyond 60 days, [Department Name] shall contact its assigned CalHR PMD Consultant for direction.

 

[Department Name] shall investigate all potential unlawful appointments immediately after discovery to determine whether the appointment was made and accepted in "good faith." If [Department Name] cannot complete an investigation prior to the one year statute of limitations for voiding the appointment, the department shall contact its assigned CalHR PMD Consultant for direction.


[Department Name] shall take steps to reduce the incidence of unlawful appointments by:

  • Ensuring that staff responsible for appointment transactions are well-trained on appointment eligibility issues (e.g., transfers, appropriate list clearance and certification process, minimum qualifications, and short duration appointments).
  • Identifying and correcting flaws in the department's hiring process workflow that may be causing unlawful appointments.
  • Directing staff responsible for appointment transactions to take the time and steps necessary to verify appointment eligibility, including review of the applicable laws, regulations and relevant CalHR Human Resources Manual and SPB's Merit Selections Manual sections before a job offer is made.
  • Auditing appointment transactions on a periodic basis to ensure compliance with eligibility requirements as set forth in the applicable laws and regulations.
  • Training all hiring managers periodically about best practices for lawful hiring.

 

When in doubt about the extent of its delegated authority under this Delegation Agreement or next steps in the process leading to appropriate resolution of an unlawful appointment, the [Department Name] will seek direction from its PMD Consultant.


Each unlawful appointment investigation will yield a unique fact pattern. CalHR and SPB shall collaborate to provide [Department Name] with issue-specific direction on appropriate resolution of unlawful appointments that exceed the one-year statute of limitations for correction of unlawful appointments by CalHR under Government Code section 19257.5 or of unlawful appointments that involve multiple departments.


If an unlawful appointment investigation involves the action(s) and/or omission(s) of personnel who would also normally be in the chain of command of staff conducting the investigation, [Department Name] shall consult CalHR to avoid an actual or appearance of conflict of interest and to avoid compromising the investigation.


B. DELEGATION OF PERSONNEL MANAGEMENT ELEMENTS

With this Unlawful Appointment Investigation Delegation Agreement, [Department Name] will have the authority to:

  • Investigate and determine the cause and resolution of unlawful appointments within its appointing authority that are within CalHR's one-year statutory limit for correction of unlawful appointments under Government Code section 19257.5.
  • Notify employees of the reasons why the appointment is potentially unlawful.
  • Notify employees of the department's final investigation findings and of their right to a 15-day period to respond with additional information.
  • Directly notify the State Controller's Office (SCO) of the action needed to void the appointment in the employee's work history.
  • Attend SPB Appeal hearings to defend its unlawful appointment investigation findings if an employee appeals.

 

This Delegation Agreement does not provide [Department Name] the authority to initiate backdating of appointments beyond 60 days or corrections of appointments beyond 60 days. The process for backdating and/or correcting appointments is distinct from the process for voiding unlawful appointments. [Department Name] will contact its assigned CalHR PMD Consultant if backdating or correction of appointment issues arise in the course of investigating an unlawful appointment.


This Delegation Agreement does not provide [Department Name] the authority to make final determinations on potential unlawful appointments beyond the one-year timeframe under Government Code section 19257.5. Only SPB may order the voiding of an appointment after the one-year timeframe, including when there is evidence of bad faith. [Department Name] shall investigate potential unlawful appointments that are beyond the one-year statute of limitations for correction by CalHR under Government Code section 19257.5, but shall provide its findings and recommendation to CalHR, which will consult with SPB for final determination.


This Delegation Agreement does not provide [Department Name] the authority to ignore a potential unlawful appointment when discovered or to intentionally delay investigation so that the one-year timeframe for correction under Government Code section 19257.5 lapses.


This Delegation Agreement does not provide [Department Name] the authority to physically key voided appointments. The SCO has exclusive authority to key transactions voiding unlawful appointments.


This Delegation Agreement does not provide [Department Name] the authority to make unlawful appointments.


This Delegation Agreement does not provide [Department Name] the authority to take any actions that impact the employee's rights prior to completion of an investigation. This means that [Department Name] will not do any of the following:

  • Send the employee home upon initial discovery of the potential unlawful appointment.
  • Return an employee to a former position prior to a full investigation and final determination.
  • Encourage an employee to relinquish a current position that may have been an unlawful appointment.
  • Establish an accounts receivable prior to a "bad faith" determination.
  • Withhold the employee's compensation pending the investigation outcome.
  • Transfer the employee to immediately remove them from the potential unlawful appointment prior to completing a full investigation and final determination.

 

The [Department Name] will submit reports (Unlawful Appointment Reporting Worksheet) to its PMD Consultant on a quarterly basis.


The [Department Name] will maintain up-to-date records on each unlawful appointment investigation including, at a minimum, the specific facts surrounding the appointment in question, a description of the circumstances which may have resulted in an illegal appointment, copies of relevant appointment documents, and any information and/or documentation which may demonstrate that the agency and employee acted in good faith when the appointment was offered and accepted. Access to these documents will be made available to CalHR within five (5) working days of CalHR request.


In determining whether an unlawful appointment was made in "good faith," [Department Name] must determine whether the appointment was the result of a reasonable and unintentional mistake or was the result of some intent to violate or circumvent civil service laws and rules under Government Code section 19050 and California Code of Regulations, section 243.


The [Department Name] will maintain a tracking system to monitor its unlawful appointments.


The [Department Name] will stay abreast of all applicable laws, rules, regulations, and CalHR policies, and take immediate action to correct unlawful appointments in accordance with applicable laws and regulations.


Any officer or employee who violates or directs another officer or employee to violate any of the provisions set forth in California Code of Regulations, section 243, subdivision (b) shall be subject to adverse action, as provided in Government Code sections 19570, 19572, and 19590.


CalHR will conduct internal monitoring of the [Department Name] practices and policies related to the discovery, investigation, resolution, and documentation of unlawful appointments.


CalHR reserves the right to revise, cancel, or impose additional restrictions relative to the terms of this Delegation Agreement agreed to by the [Department Name] at any time. Including, but not limited to requiring departmental employees to attend additional training for failure to adhere to the terms of the delegation requirements or SPB compliance review findings.


The [Department Name] also reserves the right to request revisions to or to cancel this Agreement if it deems such action is appropriate.


This Delegation Agreement is based on the [Department Name]'s acceptance of responsibility for the prompt and complete investigation of potential and identified unlawful appointments.


Subject to Government Code section 19257.5 and California Code of Regulations, sections 52.4, 243.2, 243, and 243.3, unlawful appointment investigation determinations will be delegated to the [Department Name].


The [Department Name], in partnership with CalHR, will consult with its PMD Consultant in identifying and resolving unlawful appointment issues.


C. VALUES AND ETHICS STATEMENT

We believe that we can make the state classification plan, and state government better, and each of us accepts responsibility to do his or her part to accomplish these goals. We are committed to:

  • Ensuring that all appointments are based on merit and comply with the laws and rules governing equitable administration of the civil service merit system.
  • Maintaining working relationships that promote discussion of resolution of issues that can be solved through prudent classification actions. Such discussions would take place prior to recommending solutions to the [Department Name] operations and programs.
  • Fostering good working relationships where there is trust, cooperation, and open communication to facilitate the resolution and avoidance of potential classification and/or compensation problems.

 

PARTICIPATION AGREEMENT

The [Department Name] agrees to participate in this Delegation Agreement regarding investigation of unlawful appointments for two years effective July 1, 2021 through June 30, 2023. This Agreement will be reviewed and evaluated by CalHR at the end of the two-year period and may be extended, with or without modifications. The terms of the Agreement may also be reviewed at the request of the [Department Name] or CalHR prior to the expiration of the two-year period.


By signing this Delegation Agreement, the [Department Name] agrees to all of the specified conditions described above, agrees to abide by the provisions of the Values and Ethics Statement, and agrees there will be no increase to [Department Name] salary and wages budget as a result of this Agreement.

 

By signing this Delegation Agreement, CalHR agrees to provide delegation to [Department Name] of unlawful appointment investigations. But reserves the right and responsibility to exercise any of the specified actions, rights, or options described above at any time at its discretion.

 

_____________________________________________________
/s/ Personnel Officer / Date

Personnel Officer
[DEPARTMENT NAME]

 

_____________________________________________________
/s/ Chief of Administration / Date

Chief of Administration
[DEPARTMENT NAME]

 

_____________________________________________________
/s/ Director / Date

Director
[DEPARTMENT NAME]

 

_____________________________________________________
/s/ Program Manager / Date

Program Manager
California Department of Human Resources

 

_____________________________________________________
/s/ Personnel Management Consultant / Date

Personnel Management Consultant
California Department of Human Resources

 

  Updated: 10/6/2021
One Column Page
Link Back to Top