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Unlawful Appointment Process for Non-Delegated Departments

Unlawful Appointment Process for Non-Delegated Departments

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.

What is an Unlawful Appointment?

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:

 

  • 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 on 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 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.

How are Unlawful Appointments found?

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:

 

  • 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.

What happens when a non-delegated department finds a potential Unlawful Appointment?

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 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.

 

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:

 

  • 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)

Where should a non-delegated department send notices of potential unlawful appointments?

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

What should the non-delegated department do with the employee who has a potential unlawful appointment between the time of discovery and CalHR’s final determination?

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.

What does CalHR do when it receives a report of a potentially Unlawful Appointment?

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:

 

  • 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?

INITIAL NOTIFICATION

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.

PRELIMINARY DETERMINATION

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.

FINAL DETERMINATION

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:

 

  • Placing the employee’s name back on the employment list if appropriate.
  • Allowing a deferred examination for classifications that the employee would have been a likely competitor if the unlawful appointment had not occurred.

 

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.

What happens to the pay and benefits the employee received during the period of the unlawful appointment?

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.

What right does the employee have to appeal CalHR’s final determination?

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.

How does an employee appeal CalHR’s final determination of unlawful appointment?

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.

 
  Updated: 1/28/2015
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