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Unlawful Appointment Investigation Delegation

​​​​Unlawful Appointment Investigation Delegation

The Unlawful Appointment process is currently being revised. Please contact your assigned Personnel Management Division (PMD) Consultant for templates and assistance.

 

View information on:

Unlawful Appointment Process for Non-Delegated Departments RTF (text only)
 Text Only (RTF).​

The California Department of Human Resources (CalHR) is actively working​ on a variety of streamlining efforts, one of which is the new unlawful appointment investigation delegated process. In cooperation with both internal and external stakeholders, CalHR has developed new procedures that allow departments to manage their own unlawful appointment investigations. These new procedures provide departments greater flexibility while improving efficiency and maintaining accountability.

 

Delegation is granted through an Unlawful Appointment Investigation Delegation Agreement between the department’s executive management and CalHR. This Unlawful Appointment Investigation Delegation Agreement defines the reporting requirements, responsibilities, obligations, and expectations of the department. As part of streamlining efforts, CalHR is assuming a more consultative role with departments, which replaces the position-by-position control that CalHR currently exercises over departments.

 

Departments that have signed a formal Unlawful Appointment Investigation Delegation Agreement with CalHR will have the authority to:

 

  • Investigate and determine cause and resolution of unlawful appointments

  • Notify employees of reasons why the appointment is potentially unlawful

  • Notify employees of the 15-day period to submit additional information

  • Notify employees of the department’s final investigation findings

  • Directly notify State Controller’s Office of the action needed to void the appointment on the employee’s work history

  • Attend SPB Appeal hearings to defend their unlawful appointment investigation findings if an employee appeals

 

Delegated departments will not have authority to initiate backdating of appointments beyond 60 days or corrections of appointments beyond 60 days. These issues must still come to CalHR. The process for backdating and/or correcting appointments is distinct from the process for voiding unlawful appointments. Delegated departments must contact their assigned CalHR PMD Consultant if backdating or correction of appointment issues arise in the course of investigating an unlawful appointment.

 

Most Common Causes of Unlawful Appointments

Article VII of the State Constitution requires that permanent appointments in State civil service be based on merit as ascertained by competitive examination. 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. Some of the most common reasons for unlawful appointments are:

  • Transfer of an individual based on inaccurate interpretation of the transfer requirements.

  • Appointment of an individual to an inappropriate salary range of a deep classification.

  • 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.

 

Another common type of illegal appointment is a “short duration” appointment (60 days or less), which is intended to provide the employee with an advantage to which he would not otherwise be entitled. The duration of the appointment in itself does not render the appointment unlawful, but rather the intent behind the short duration of the appointment, which is to provide the employee with eligibility that he would not otherwise have. Example: A person who is not reachable on a certification list for Sacramento is appointed to a position in San Francisco, and on the same day is transferred to Sacramento in the same classification, thus circumventing the list.

 

Departments that have signed an Unlawful Appointment Investigation Delegation Agreement must investigate all potential unlawful appointments to determine whether the appointment was made and accepted in “good faith” as required by California Code of Regulations, Title 2, Section 8. See the Laws and Rules of Unlawful Appointments for more information.

 

If a delegated department 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, the departments must contact their assigned CalHR PMD Consultant for direction.

 

In addition, departments can 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 or 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 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.

 

Investigating Potential Unlawful Appointments

Department human resources personnel are responsible for performing a planned and systematic search into the facts and circumstances surrounding any potential unlawful appointment. This fact-gathering is followed by an analysis of those facts in light of the applicable laws and rules surrounding the appointment.

Currently, non-delegated departments must immediately notify CalHR in writing of any apparent unlawful appointment as soon as it is discovered. The non-delegated department’s notification to CalHR includes:

 

  • The specific facts surrounding the appointment in question;

  • A description of the circumstances that may have resulted in an unlawful appointment;

  • Copies of relevant appointment documents; and

  • Any information or documentation that may demonstrate that the department and employee acted in good faith when the appointment was offered and accepted.

 

Departments that have signed a formal Unlawful Appointment Delegation Agreement with CalHR have the authority to investigate and determine cause and resolution of their own potential unlawful appointments, without having to send a notification with supporting documents to CalHR for investigation and final determination.

 

The process for delegated unlawful appointment investigations begins with the same discovery and gathering of facts and documentation as the non-delegated process. The following are the most common types of documents or information needed to review a possible unlawful appointment. Any documents used for investigation must be maintained in the event of an appeal.

 

  • Full name of employee

  • Social Security number

  • Copy of the vacancy announcement

  • Copy of the Bachelor of Arts or Bachelor of Science degree (if applicable)

  • PIMS Employment History

  • Copy of the organization chart(s)

  • Copy of the hiring package

  • Date of job offer

  • Description of what was offered to the employee

  • Date of the appointment

  • Employee’s civil service appointment eligibility

  • The basis on which the hiring manager concluded the employee had eligibility and subsequently authorized the employee to start working

  • Chronology of events

  • Specific civil service laws and rules that apply

  • Salary impact/compensation concerns with the appointment

  • Calculation(s) showing the inappropriate transfer (Transfer Eligibility Worksheet)

  • Copy of the certification list used

  • Copy of the State employment application and resume

  • Copy of the alternate range determination worksheet

  • Copy of the professional license

  • Copy of the employee’s signed Notice of Personnel Action (NOPA)

 

The investigation process and associated review documents are also summarized in the Unlawful Appointment Process and Document Checklist | Unlawful Appointment Process and Document Checklist - Text Only (RTF).

 

Departments must use the employee’s official employment history to verify appointments held, dates, tenure and timebase. Departments should look up and print relevant class specifications and salaries, as well as any alternate range criteria that may be applicable. Departments must review and print the certification list that was used. Departments may need to review the employee’s State application, resume and/or transcript to determine whether minimum qualifications have been met. Departments may need to double-check the transfer using the Transfer Eligibility Worksheet - CalHR 880 to verify whether the transfer adhered to the transfer rules.

 

Departments must never assume any facts without verifying them and obtaining the relevant documentation of those facts. Department human resources staff who perform the investigations must take thorough notes and keep them in the investigation file. In determining whether an unlawful appointment was made in “good faith,” department investigators 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.

 

The goal of the investigation is to thoroughly answer the following questions:

 

  • What are the specific facts regarding the appointment?

  • What civil service laws, rules and policies apply to the appointment?

  • Is the appointment in compliance with those laws, rules and policies?

  • Was the appointment made and accepted in “good faith”?

  • What is the appropriate remedial action in this case?

 

Once the questions above can be completely answered, the delegated department must make a preliminary determination on the appointment, as discussed in the following section.

 

Defending Your Determination in Case of SPB Appeal

Once the delegated department has issued the final determination letter, the impacted employee may file an appeal of the final determination of unlawful appointment within 30 calendar days of receiving the final decision letter. The employee must appeal to the State Personnel Board Appeals Division in writing. Department human resources personnel who investigated the unlawful appointment and made the final determination must be prepared to appear at the appeal hearing to describe and defend the decision to take action.

 

Reporting Requirements

Once a department has signed an Unlawful Appointment Delegation Agreement, it will be responsible for reporting the resolution of all discovered unlawful appointments by position. Departments are responsible for notifying CalHR of any unlawful appointment investigations completed by submitting an Unlawful Appointment Reporting Worksheet | Monthly Unlawful Appointment Reporting Worksheet - Text Only (RTF) to their PMD Consultant and the Delegation.Project@calhr.ca.gov inbox.

 

The Unlawful Appointment Reporting Worksheet must include all positions where an unlawful appointment was suspected, even if the investigation determined the appointment to be lawful in the end. The report must list only completed unlawful appointment investigations, not open investigations. The unlawful appointment report, unlike the other two reports to CalHR, is not meant to be cumulative, meaning departments must not list a completed unlawful appointment on the report for more than a single quater (the quarter in which the final determination was made).

 

The report must list the name of the employee, the position number, the date the unlawful appointment was effective, the date it was discovered, the reason the appointment was unlawful, the resolution of the appointment, and the date the final determination and resolution was effective. Departments must submit a “negative response” report even when no unlawful appointment investigations have been concluded in the quarter.

 

Departments that perform human resources work for other departments must maintain a separate Unlawful Appointment Reporting Worksheet for each appointing authority.

 

While reporting will be done initially via spreadsheets and email, CalHR plans to launch an interactive website that will provide a more automated means of reporting and monitoring while increasing transparency in the allocations made statewide. More information will be provided to departments as CalHR progresses on the new automated website.

 

Record Keeping

Delegated departments must develop and maintain, for CalHR’s Human Resources Quality Review, quarterly monitoring, and State Personnel Board Appeal purposes, adequate documentation for all unlawful appointment investigations.

 

Monitoring and Auditing

CalHR will monitor each department’s unlawful appointment corrections via reports from the State Controller’s Office on a quarterly basis. Departments will be notified immediately if discrepancies or disturbing trends are found. CalHR may request that departments provide select unlawful appointment investigation packages to CalHR for random review at any time during the delegation period. CalHR will also audit departmental position allocations as part of CalHR’s Human Resources Quality Review Program (HR Net access required).

 

Any questions about unlawful appointment investigation delegation should be addressed to the department’s assigned PMD Consultant at CalHR.

 

  Updated: 11/12/2020
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