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, and the Personnel Officer, depending on structure.

On behalf of the CalHR, this delegation agreement will be signed by the Program 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 one year after the appointment. CalHR’s Personnel Management

Division (PMD) chooses to administer this authority via this Unlawful Appointment Investigation Delegation

Agreement with the [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 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. Fundamental Principles for Unlawful Appointment Investigation Delegation

The goals of this delegation agreement include supporting the State’s Classification Plan, improving upon

California state Human Resources functioning and efficiency, ensuring that Unlawful Appointment processes

comply with applicable laws, regulations and guidance, and conducting fair and equitable Unlawful

Appointment investigations throughout delegated state departments.

The [Department Name] and CalHR understand and accept the following legal limitations on our scope of

authority for resolving Unlawful Appointments. Both parties agree to these fundamental principles of a meritbased

civil service system for 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.

The State Personnel Board (SPB) is ultimately responsible for interpreting and 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.

California Code of Regulations, section 243 defines the requirements for an appointment to be considered made

and accepted in “good faith” and therefore lawful. Unlawful Appointments occur for a variety of reasons

including administrative errors, oversight, misinformation, or, in rare cases, attempts to circumvent the State’s

civil service system. Each Unlawful Appointment investigation will yield a unique fact pattern. For a complete list

of documents to include in the Unlawful Appointment investigation, visit the Unlawful Appointment Process and

Document Checklist on the CalHR website.

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. Note: The duration of the appointment in itself does not render an Unlawful Appointment, but rather the intent behind the short duration of the appointment, which is to provide the employee with eligibility that they 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.

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.

B. Delegation of Personnel Management Authority

Pursuant to Government Code section 19257.5, CalHR has authority to void Unlawful Appointments from the

beginning of such Unlawful Appointments within one year after the appointment, and with this agreement, that

authority is delegated to the [Department Name]. Subject to California Code of Regulations, sections 52.4, 243.2,

243, and 243.3, Unlawful Appointment investigation determinations are delegated to the [Department Name].

With this Unlawful Appointment Investigation Delegation Agreement, the [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 respond with additional information. This must occur prior to the effective date of the void.
Directly notify the State Controller’s Office (SCO) of the action needed to void the appointment in employee’s work history.
Attend SPB Appeal hearings to defend its Unlawful Appointment investigation findings if an employee appeals.

C. Department Responsibilities and Restrictions

The [Department Name] shall take proactive measures to ensure internal hiring practices are lawful.

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.

The [Department Name] is charged with ensuring internal hiring practices meet the standards for lawful

appointments as established by SPB and enforced by CalHR and SPB.

This Delegation Agreement does not provide the [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. The [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.
Ignore a potential Unlawful Appointment when discovered or to intentionally delay investigation so the one-year timeframe for correction under Government Code section 19257.5 lapses.
Physically key voided appointments. The SCO has exclusive authority to key transactions voiding Unlawful Appointments.
Make Unlawful Appointments.
Take any actions that impact the employee’s rights prior to completion of an investigation.

This means that the [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.

In determining whether an Unlawful Appointment was made in “good faith,” the [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, as this determination is critical when identifying the appropriate

response/corrective action.

The [Department Name] will maintain a tracking system to monitor its Unlawful Appointments.

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.

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, the [Department Name] shall consult

CalHR to avoid an actual or appearance of conflict of interest and to avoid compromising the investigation.

The [Department Name] accepts responsibility to foster a good working relationship with CalHR based on mutual

cooperation and open communication. The [Department Name], in partnership with CalHR, shall contact its

assigned PMD Consultant for direction in identifying and resolving Unlawful Appointment issues if the

[Department Name] encounters a potential Unlawful Appointment that appears not to be due to one of the most

common reasons identified in the Fundamentals of Unlawful Appointment Investigation Delegation section.

The [Department Name] shall investigate all potential Unlawful Appointments immediately after discovery to

determine whether the appointment was made and accepted in “good faith.” If the [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. Failure to do so could jeopardize the

delegated authority provided to the department, and cause harm to the employee.

The [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 regularly 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.

RECORDS AND REPORTING

The [Department Name] will submit reports (Unlawful Appointment Reporting Worksheet) to its PMD Consultant

on a quarterly basis. The standard quarterly report due dates are:

March 10th: December through February information
June 10th: March through May information
September 10th: June through August information
December 10th: September through November information

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.

D. CalHR Responsibilities and Rights

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.

CalHR and SPB shall collaborate to provide the [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 a violation of delegated authority is discovered, CalHR will take necessary action, which may include mandating

a Corrective Action Plan and training. If violations persist or if the seriousness of the violation warrants, CalHR

reserves the right to restrict or revoke delegation indefinitely for non-compliant departments.

CalHR reserves the right to revise, cancel, or impose additional restrictions on the terms of this Delegation

Agreement agreed to by the [Department Name], including but not limited to requiring departmental employees

to attend additional training for failure to adhere to the terms of the delegation requirements.

E. Participation Agreement

The [Department Name] agrees to participate in this Delegation Agreement regarding investigation of Unlawful

Appointments for two years effective July 1, 2023 through June 30, 2025. 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 and agrees to abide by the Fundamentals of Unlawful Appointment Investigation Delegation section.

By signing this Delegation Agreement, CalHR agrees to delegate Unlawful Appointment investigations to the

[Department Name], but reserves the right and responsibility to exercise any of the specified actions, rights, or

options described above at any time at its discretion.

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

is appropriate.

_____________________________________________________
/s/ Personnel Officer

Personnel Officer
[DEPARTMENT NAME]

_____________________________________________________
/s/ Chief of Administration

Chief of Administration
[DEPARTMENT NAME]

_____________________________________________________
/s/ Director

Director
[DEPARTMENT NAME]

_____________________________________________________
/s/ Program Manager

Program Manager
California Department of Human Resources

_____________________________________________________
/s/ Personnel Management Consultant

Personnel Management Consultant
California Department of Human Resources