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Responsibility for the unlawful appointment investigation and determination process was the responsibility of the State Personnel Board (SPB) until the Governor’s Reorganization Plan Number One of 2011 transferred this responsibility to the California Department of Human Resources (CalHR). As of July 1, 2012, the Personnel Management Division within CalHR has been responsible for handling the investigation and determinations of possible unlawful appointments discovered at any line department within the State civil service system.
CalHR is actively working to delegate the unlawful appointment investigation and determination process to line departments. More information about the delegated Unlawful Appointment investigation process is available under the Delegation Project web content.
The delegated process applies only to departments that have signed Unlawful Appointment Delegation Agreements. All other departments must follow the non-delegated procedures outlined below.
Article VII, section 1 of the California Constitution requires that permanent appointments in state civil service be based on merit as ascertained by competitive examination. Unlawful appointments occur when the hiring of an individual does not comply with applicable civil service laws and regulations. Such appointments may result from administrative mistakes or misinformation, improperly clearing the employment list, or in rare cases, attempts to circumvent the state’s civil service system. Some of the most common reasons for unlawful appointments are:
Another type of unlawful 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 Class A is appointed to a position in the equivalent Class B, and on the same day is transferred to Class A, thus circumventing the Class A list.
An unlawful appointment may be discovered by the line department human resources staff, by the SPB Compliance Review Unit during the course of an audit, or by CalHR’s Personnel Management Division in the course of working with the department on various personnel issues.
Departments can take steps to reduce the incidence of unlawful appointments by:
When a non-delegated department discovers a potential unlawful appointment, it must gather all dates, facts, and supporting documentation, and send that information with a hard copy cover letter to its assigned Personnel Management Division (PMD) analyst at CalHR. The cover letter summarizes why the department suspects the appointment was potentially unlawful. The non-delegated department’s notification to CalHR includes:
The following are the most common types of documents or information that a non-delegated department may need to submit to CalHR with its cover letter:
Departments must send notices of potential unlawful appointments to CalHR at the following address:
Personnel Management Division
California Department of Human Resources
1515 S Street, North Building Suite 540N
Sacramento, CA 95811-7258
The department must not send the employee home, and must not return the employee to his or her previous position or encourage the employee to relinquish his or her current position. The employee must continue to work in the position and will continue to receive compensation until CalHR’s investigation is complete and formal action is taken to correct the unlawful appointment. The department must take no action on the employee’s appointment at this initial stage other than to gather documentation and report the facts of the circumstances surrounding the potentially unlawful appointment to CalHR.
When the PMD analyst at CalHR learns of a potentially unlawful appointment, the PMD analyst performs 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. The goal of the investigation is to thoroughly answer the following questions:
At the outset of the investigation, the PMD analyst writes a formal letter addressed to the employee’s residence notifying the employee of the potential that their appointment was made unlawfully. This letter is known as an Initial Notification of Potential Unlawful Appointment. CalHR will also send a copy of the letter to the department. CalHR may contact the department and/or the employee for additional information if necessary.
Once the PMD analyst has thoroughly investigated the circumstances surrounding the unlawful appointment, the PMD analyst must write a formal letter addressed to the employee’s residence with CalHR’s preliminary determination. The Preliminary Determination Regarding Potential Unlawful Appointment letter must document the reasons for CalHR’s determination that the appointment is likely unlawful. CalHR will also send a copy of the letter to the department.
The California Code of Regulations, title 2, section 266.2 gives the employee 15 days to respond to a preliminary determination finding the employee’s appointment was potentially unlawful. The preliminary determination letter informs the employee of this right to provide to CalHR additional information regarding the potential unlawful appointment within 15 calendar days. This letter will include a copy of the handout Unlawful Appointment Process for Non-Delegated Departments. | Unlawful Appointment Process for Non-Delegated Departments. - Text Only (RTF) Employees receiving a preliminary determination letter may direct their questions to either CalHR or their department personnel office. The department should discuss with the employee the preliminary letter findings and the likely outcome (e.g., voiding of the appointment and return to former classification).
The PMD analyst will indicate in the preliminary determination letter whether there is any evidence of the unlawful appointment being accepted by the employee in other than “good faith,” which would be the only instance when the department may pursue reimbursement of compensation associated with the unlawful appointment. If the unlawful appointment was made and accepted in “good faith” the employee is entitled to retain the earned salary and benefits.
The California Code of Regulations, title 2, section 266 prohibits the voiding of an unlawful appointment that has been in effect for more than one year if the appointment was made and accepted in “good faith.” When CalHR learns of an unlawful appointment that has been in effect more than one year, the PMD analyst must still proceed with an investigation to determine whether the appointment was made and accepted in “good faith.” The PMD analyst will, for documentation purposes, write a Good Faith Unlawful Appointment Beyond the 1-year statute letter to the employee indicating that the unlawful appointment was discovered, but that it was made and accepted in “good faith” and that the appointment will stand as the one-year limit has passed.
Once the PMD analyst has thoroughly investigated the circumstances surrounding the unlawful appointment, and considered any additional information provided by the employee during the 15-day period, the PMD analyst must write a formal letter addressed to the employee’s residence with CalHR’s final determination.
The Final Determination Regarding Potential Unlawful Appointment letter must document the reasons for the CalHR’s final determination that the appointment is unlawful. This letter informs the employee of why the appointment was unlawful, whether it was made and accepted in “good faith” or not, what action CalHR will be taking to resolve the unlawful appointment, when the action will become effective, and how the employee may appeal the matter to the State Personnel Board. Government Code section 19257.5 grants CalHR the authority to void unlawful appointments made within the State Civil Service system.
If the employee has former state service prior to the unlawful appointment, a voiding of the appointment results in the employee being returned to his former position. If the employee has no former state service, voiding of an unlawful appointment will separate the employee from state service. If the appointment was made and accepted in good faith, CalHR may consider mitigating measures to ease the negative effects of voiding the appointment on the employee. Such options may include, but are not limited to:
Voided unlawful appointments will appear on the employee’s employment history as a separation transaction from state service. If the employee has former state service that can be considered for reinstatement purposes, termination of the unlawful appointment will not break the continuity of state service because the employee will be reinstated to another appointment the day immediately following the termination of the unlawful appointment.
In addition to the employee, the final determination letter will be sent to the department and the State Controller’s Office Personnel/Payroll Services Division, which is responsible for keying the transaction that separates the employee from the unlawful appointment. CalHR will keep all letters and documentation regarding the unlawful appointment in the event of an appeal to the State Personnel Board.
In some cases, an employee whose appointment has been voided received a salary and employee benefits that he/she was not eligible to receive because of the unlawful nature of the appointment. These benefits may include vacation, sick leave, health benefits, retirement benefits, salary step advancement, service towards vacation accrual rates, etc. Government Code section 19275 allows employees who acted in good faith when accepting the appointment to retain the earned salary and benefits. However, if it is determined that the employee did not act in good faith when accepting the unlawful appointment, the State shall seek reimbursement from the employee for the compensation the employee received.
Once CalHR 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. The PMD analyst who investigated the unlawful appointment and made the final determination will appear at the appeal hearing to describe and defend the decision to take action.
If the appointment is deemed unlawful and voided, the employee may appeal after receiving the final decision letter from CalHR. Such appeals must be in writing, filed within 30 calendar days of receipt of the final decision to void the appointment, and addressed to:
Attn: Appeals Unit
State Personnel Board
801 Capitol Mall MS # 22
Sacramento, CA 95814.
More information about the appeal process can be found on the SPB website, www.spb.ca.gov.