SPECIAL INVESTIGATION
Additional Appointments of
Supervisorial and/or Managerial Employees

California Department of Forestry and Fire Protection

Prepared By:
Compliance Review Division State Personnel Board
May 16, 2013

TABLE OF CONTENTS

Page

Introduction	1
Executive Summary	1
Background	2
Scope and Methodology	4
Findings	5
Departmental Response	6
SPB Reply	7
Attachment 1	11

INTRODUCTION

Established by the California Constitution, the State Personnel Board (the SPB or board) is charged with enforcing and administering the civil service statutes, prescribing probationary periods and classifications, adopting regulations, and reviewing  disciplinary actions and merit-related appeals. The SPB oversees the merit-based recruitment and selection process for the hiring of over 200,000 state  employees. These employees provide critical services to the people of California, including but not limited to, protecting life and property, managing emergency operations, providing education, promoting the public health, and preserving the environment. The SPB provides direction to departments through the board’s decisions, rules, policies, and consultation.

In addition, the SPB may review an appointing authority’s personnel practices to ensure compliance with civil service laws, rules, and policies. The four major areas of review are examinations, appointments, equal employment opportunity (EEO), and personal services contracts.
The SPB may also conduct special investigations of an appointing authority’s personnel practices to ensure compliance with civil service laws, rules, and policies. Special investigations may be initiated in response to a specific request or when SPB obtains information suggesting a potential merit-related violation.

EXECUTIVE SUMMARY

In response to a request by the Legislature, the Compliance Review Division (CRD) of the SPB conducted a special investigation into the Department of Forestry and Fire Protection (CAL FIRE)’s personnel policies and practices related to supervisorial and/or managerial employees who held an additional appointment in a rank-and-file position on January 11, 2013. On that date, CAL FIRE’s records reflected that a full-time  permanent Staff Services Manager I (SSM I) held an additional appointment as a rank- and-file Associate Personnel Analyst (APA) by way of reinstatement. The additional appointment was held as a limited term intermittent. On February 27, 2013, CAL FIRE issued a Notice of Personnel Action (NOPA) terminating the additional appointment with an effective date of December 31, 2012.

Regardless of whether an appointment is an additional appointment, civil service laws and rules apply to the appointment, unless the appointment is expressly exempted from civil service. Generally, those laws and rules require hiring departments to ensure a competitive and fair selection process that includes advertising for the position;

determining whether an eligible list for the classification exists; collecting applications; and conducting hiring interviews.

In addition, an appointment by way of reinstatement must be determined by candidate performance in selection procedures, including, but not limited to, hiring interviews, reference checks, background checks, and/or any other procedures assessing job- related qualifications. Selection procedures must be designed and administered to select those individuals who best meet the selection need.

CAL FIRE did not ensure a competitive and fair selection process for the APA position that included advertising for the position, determining if eligible lists for APA classifications existed, or conducting hiring interviews. In addition, CAL FIRE appointed the SSM I to the additional appointment as an APA without determining her performance in a selection procedure. Instead, CAL FIRE only offered the rank-and-file position to the SSM I. CAL FIRE formally separated the additional appointment on February 27, 2013, since the appointment expired on December 31, 2012.

The additional appointment was thus not made in compliance with civil service laws and rules, or merit principles. Corrective action is therefore warranted.

While departments are currently prohibited from appointing managers and supervisors to additional appointments (CalHR’s Policy Memo 2013-015), this policy could be changed or modified in the future. Accordingly, it is recommended that CAL FIRE review, and if necessary, update its personnel policies and procedures to ensure that all additional appointments, regardless of the funding source, comply with civil service laws and rules, and merit principles, unless the additional appointment is expressly exempt from civil service. CAL FIRE should also provide its personnel managers and staff with information and/or training on the laws, rules, and policies related to additional appointments.

CAL FIRE must comply with the afore-stated recommendations within 60 days of the Board’s Resolution and submit to the SPB a written report of compliance.

BACKGROUND

Section 350 of the SPB’s Personnel Management Policy and Procedures Manual on “Appointments and Status” (300-911 (1/79) Rev. 10/30/86) states, in pertinent part, that an additional appointment is subject to civil service laws and rules:

Additional appointment is the term used when a State civil service employee is appointed to a second position in State service. The term is

descriptive only since the fact that an appointment is held as an additional appointment does not change the civil service law and rule provisions that would otherwise apply to it.
¶…¶
There are no laws or rules that relate specifically to additional appointments. The authorities for making additional appointments are the same as for making any other appointment. These include the provisions on list appointments, transfers, reinstatements, etc. For example, an  Office Assistant II who was reachable on the promotional list for Stenographer could receive an additional appointment as a Stenographer in the same manner as any other reachable eligible.

Section 350 also addresses two areas of “particular concern” regarding the good faith of an additional appointment:

The intent of the appointment must not be to circumvent the full-time appointment process; for example, making two part-time appointments of an individual who is eligible for part-time, but not full-time employment.

The intent of the appointment must not be to circumvent the overtime provisions.

Additionally, to ensure the proper use of additional appointments, Section 350 provides these examples: an additional appointment “to a distinctly different employment situation than the employee’s initial appointment; typically, this would involve appointment to a different class, department or State facility.”

The following departments had supervisors and/or managers who held additional appointments in rank-and-file positions within the same department on January 11, 2013:

Department	Count	
Corrections and Rehabilitation	227	
Department of State Hospitals	173	
Social Services	101	
Public Employees’ Retirement System	56	
Employment Development Department	4	
Education	2	
Food and Agriculture	2	
Motor Vehicles	2	

Veterans Affairs	2	
Consumer Affairs	1	
Forestry and Fire Protection	1	
Total	571	

Source: State Controller’s Office

The Legislature requested that SPB and CalHR review those additional appointments.1 In order to provide a comprehensive review in the most expeditious manner, CalHR focused on compliance with classification, compensation and labor laws, rules, and policies, while SPB focused on compliance with civil service laws, rules, and policies.

This report contains only the results from the SPB’s review.

SCOPE AND METHODOLOGY

The scope of this special investigation involved a review of additional appointments held by CAL FIRE’s supervisors and/or managers in rank-and-file positions on January 11, 2013. CAL FIRE’s records showed that on that date a permanent full-time SSM I held an additional appointment as a rank-and-file APA by way of reinstatement. The additional appointment was held on a limited-term, intermittent basis.

The primary objective of this review was to determine if the additional appointment complied with state civil service laws, rules, and policies, and to recommend corrective action for any violations identified.

The SPB held an entrance conference with CAL FIRE on March 5, 2013, to explain the special investigation process. On that same date, a material request form was provided to CAL FIRE requesting the appointment file and information relating to the additional appointment, to which CAL FIRE immediately responded.
The SPB examined the documentation, which included duty statements for the SSM I and APA classifications, a CAL FIRE organization chart, an employee-history printout, a request for personnel action, an internal memorandum justifying the additional appointment, the Notice Of Personnel Action (NOPA) effecting the additional

1In January 2013, CalHR issued Policy Memo 2013-007 to Personnel Management Liaisons (PML) prohibiting departments from processing any new additional appointments. On April 25, 2013, CalHR issued Policy Memo 2013-015 instructing that effective immediately departments were no longer authorized to make any additional appointments for managers and supervisors. Policy Memo 2013-015 also sets forth options departments can consider in lieu of appointing managers and supervisors to additional positions.

appointment, and the NOPA terminating the additional appointment. The SPB also interviewed appropriate CAL FIRE staff.

On April 22, 2013, an exit conference was held with CAL FIRE to explain and discuss the SPB’s initial findings and recommendations. CAL FIRE was also provided a copy of the SPB’s draft report. CAL FIRE was given until April 24, 2013, to submit a written response. On April 24, 2013, the SPB received and carefully reviewed the department’s response, which is attached to this final report.

FINDINGS

On June 6, 2012, CAL FIRE reinstated a permanent fulltime SSM I working as a Transactions Unit Manager in the Labor and Human Resources Division to an additional appointment as a limited term intermittent APA rank-and-file position in the Classification and Pay (C&P) Unit within the same division. The SSM I had previously worked in the C&P Unit as an APA and promoted from an APA to an SSM I on March 8, 2012.
At the time of the additional appointment, CAL FIRE’s C&P Unit was reduced from four analysts and one manager to one analyst and no manager. CAL FIRE stated that a backlog of disciplinary actions developed, which created an immediate staffing need. CAL FIRE reinstated the SSM I to an additional appointment as an APA to work on eliminating the backlog. Before and during the months following the additional appointment, CAL FIRE filled the vacant positions in the C&P Unit and used the additional appointment to train the new employees and manage the backlog.  Consistent with the hiring paperwork and the limited duration of the additional appointment, CAL FIRE issued a NOPA on February 27, 2013, terminating the additional appointment with an effective date of December 31, 2012,

Departments must have recruitment strategies designed to be “as broad and inclusive as necessary to ensure the identification of an appropriate candidate group.” (Merit Selection Manual [MSM], § 1100, p. 1100.2 (Oct. 2003); Cal. Code Reg., tit. 2, § 50.) Generally, the typical steps a department takes after determining that approval to fill a vacant position has been secured include: determining whether there is an eligible list for the classification; determining whether an eligible list is necessary to fill the position; advertising the position, which may include certifying the eligible list; receiving applications, and if no applications are received, re-advertising the position with increased recruitment efforts; screening applications to determine which candidates meet minimum qualification requirements and are eligible for appointment; and conducting hiring interviews. (MSM, § 1200, pp. 1200.7-1200.8; Cal. Code Reg., tit. 2,
§ 50.)

SPB rules require appointments to positions in state civil service by way of reinstatement must be made on the “basis of merit and fitness, defined exclusively as the consideration of each individual’s job-related qualifications for a position…as determined by candidate performance in selection procedures, including, but not limited to, hiring interviews, reference checks, background checks, and/or any other procedures, which assess job-related qualifications . . . .” (Cal. Code Reg., tit. 2, § 250, subd. (a).)
CAL FIRE did not post or advertise the APA position, clear or certify an eligible list, or collect applications. There was also no screening or rating criteria for the position, and no other candidates were considered. In addition, CAL FIRE did not appoint the SSM I to the additional appointment as an APA by determining her performance in a selection procedure. Instead, CAL FIRE merely offered the APA position to the SSM I.
The APA position was funded by a temporary help blanket or budget. However, civil service laws and rules apply to all appointments, unless expressly exempted from civil service, regardless of how the positions are funded (i.e., funded through the department’s regular/on-going position budget or funded through the department’s temporary help position budget). The APA position was not exempted from civil service laws and rules.
CAL FIRE separated the additional appointment on February 27, 2013, as the appointment was set to expire at the end of December 2012. Nonetheless, because the additional appointment was made in violation of civil service laws and rules, or merit principles, corrective action is warranted.
While departments are currently prohibited from appointing managers and supervisors to additional appointments (CalHR’s Policy Memo 2013-015), this policy could be changed or modified in the future. Accordingly, it is recommended that CAL FIRE review, and if necessary, update its personnel policies and procedures to ensure that all additional appointments, regardless of the funding source, comply with civil service laws and rules, and merit principles, unless the additional appointment is expressly exempt from civil service. Further, CAL FIRE should provide its personnel managers and staff with information and/or training on the laws, rules, and policies related to additional appointments.

DEPARTMENTAL RESPONSE

CAL  FIRE  was provided  a draft  copy of  the  initial report to review.	A copy of CAL FIRE’s written response is attached as Attachment 1.

SPB REPLY

The SPB carefully reviewed and considered CAL FIRE’s position. For those reasons set forth below, the findings and recommendation of the compliance review remain unchanged.

CAL FIRE first asserts that the additional appointment was made and accepted in good faith. While the compliance review found no documentation or other evidence contrary to CAL FIRE’s claim that the additional appointment was made and accepted in good faith, the purpose of the special investigation was to determine whether the additional appointment complied with civil service laws and board rules. As discussed in the report, CAL FIRE failed to ensure a competitive and fair selection process for the APA position that was filled by the SSM I.

CAL FIRE next asserts that the documentation and other information showed that the SSM I was eligible for the additional appointment as a rank-and-file APA and that the additional appointment was temporary and funded through a temporary help blanket fund. The SSM I’s eligibility for the rank-and-file position, however, has no bearing on whether there was a competitive and fair selection process for the APA position that was filled by the SSM I. As the compliance review found, CAL FIRE did not ensure  such a process but rather simply offered the APA position to the SSM I. Moreover, regardless of how the APA position was funded, civil service laws and rules apply to all appointments, unless expressly exempted from civil service. The APA position was not exempt.

CAL FIRE additionally asserts that the selection procedures cited in this report are not inclusive of all available selection tools, and implies that, because the hiring manager was already familiar with the SSMI’s performance, it was appropriate to hand pick the employee. CAL FIRE fails to recognize that the merit system was constitutionally created to protect against this very type of selection—hiring based on familiarity rather than through an open and fair process. While SPB agrees that departments may utilize a variety of tools, including an evaluation of job performance, in selecting the most qualified candidate for a position, by hand picking an employee, CAL FIRE has no way of knowing whether the SSM I was the most qualified candidate for the job.

CAL FIRE also asserts that SPB “fails to provide factual data to support” its conclusions that CAL FIRE failed to advertise, determine the existence of an eligible list, conduct hiring interviews, develop and utilize screening and rating criteria, and consider other candidates. (CAL FIRE Response, p. 4). However, CAL FIRE did not provide any such evidence in its responses either to the material request form at the beginning of the

investigation or the draft report. If CAL FIRE wishes to produce documentation evincing such actions on its part, SPB will reopen the investigation for the purpose of reviewing the documentation and, if appropriate, revising its findings and recommendations. Furthermore, CAL FIRE implies that SPB’s findings are based on incomplete information because the investigator did not interview the hiring supervisor, the person who determined the necessity of the work and the person who wrote the justification to hire the employee. Again, SPB has found no evidence contrary to CAL FIRE’s  assertion that there was a legitimate need and that the employee selected was qualified to fill that need. However, CAL FIRE fails to recognize that the merit principle requires that the selection process for civil service jobs be open and fair so that all qualified applicants have an opportunity to compete equally. Selection based solely on a hiring manager’s personal experience and knowledge about a specific employee’s performance deprives other unknown, qualified persons the opportunity to express interest and deprives the department of the opportunity to hire the most qualified person for the job. Only by strictly adhering to this principle can the state ensure that the people of California are being served by the best talent available.

CAL FIRE further contends that it was in the process of advertising, recruiting, conducting interviews, and reference checks to fill other vacancies in the C&P Unit using a selection process based on merit and fitness. CAL FIRE asserts that during the recruitment process for those vacancies a need developed for expertise in CAL FIRE’s process and procedures related to progressive discipline and adverse actions. CAL FIRE determined that this need should be filled by an existing CAL FIRE employee due to the special expertise required, the temporary and intermittent nature of the work, and the funding source. CAL FIRE argues that there was no vacancy because the position was funded with temporary help blanket funds, and therefore, civil service laws and rules did not apply. CAL FIRE asserts that the SPB has a “myopic view” of filling a “vacant” position, since the additional appointment was an overtime assignment and the employee had to be in the appropriate classification to perform the work to prevent union allegations of an employee working out of class or doing the work of bargaining unit employees. CAL FIRE confuses labor relations issues with merit issues. Civil service laws and rules apply to additional appointments regardless of the tenure or time base of the appointment, unless the appointment is exempt from civil service. The APA position was not exempt. Additionally, CAL FIRE cannot justify avoiding compliance  with civil service laws and the merit principle by loosely characterizing the APA position as “an overtime assignment” for the SSM I. For purposes of civil service laws and rules, an APA is not an assignment but a classification with duties and responsibilities separate from the SSM I classification. The SSM I held the additional appointment as  an APA by way of reinstatement. SPB rules require that appointments by way of reinstatement be made on the “basis of merit and fitness, defined exclusively as the

consideration of each individual’s job-related qualifications for a position…as determined by candidate performance in selection procedures, including, but not limited to, hiring interviews, reference checks, background checks, and/or any other procedures, which assess job-related qualifications . . . .” (Cal. Code Reg., tit. 2, § 250, subd. (a).) CAL FIRE did not follow this rule.2

CAL FIRE further believes that the SPB’s findings and conclusions are overly sweeping and limits CAL FIRE’s ability to transfer employees in other allowable scenarios. CAL FIRE describes other situations that allow departments to utilize discretion to move employees into positions without going through the selection process. Those situations, however, are not under review here. The SPB’s findings and conclusions are specific to the additional appointment of an SSM I to a rank-and-file position. Certainly, if CAL FIRE had utilized another method for addressing the workload, a different analysis would apply.

In addition, CAL FIRE attacks the report as void of any specific direct law or rule, or clear policy directive that fits this particular situation. However, applicable civil service laws and rules are cited herein, in addition to section 350 of the PMPP manual, which provides that additional appointments are subject to civil service laws and rules.

CAL FIRE asserts that SPB only made the assumption that its personnel policies require updating. CAL FIRE was asked to submit all documents relevant to this special investigation, but CAL FIRE failed to submit any personnel policies that reflect a correct understanding of civil service requirements relative to additional appointments, leading SPB to believe that none existed. Nonetheless, the SPB modified the recommendation in the initial report to require CAL FIRE to review, and if necessary, update its personnel policies and procedures to ensure that all additional appointments, regardless of the funding source, comply with civil service laws and rules, and merit principles, unless the additional appointment is expressly exempt from civil service.

CAL FIRE further complains that SPB did not identify any available training to provide to CAL FIRE staff. CAL FIRE should refer to the CalHR training website for a list of courses on personnel topics. CAL FIRE should provide its personnel managers and staff with information and/or training on the laws, rules, and policies related to additional

2 Because CAL FIRE repeatedly emphasizes that there was no “vacancy,” the report was modified to describe the APA appointment as a “position.” Regardless of the terminology, the APA position that was filled by the SSM I was an employment opportunity within state civil service and, thus, absent an exemption, civil service laws and rules were applicable.

appointments. Furthermore, CAL FIRE should consult with its assigned CalHR analyst for further guidance.

CAL FIRE must comply with the afore-stated recommendations within 60 days of the Board’s Resolution and submit to the SPB a written report of compliance.

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<	STATE
PERSONNEL
.j	BOARD

801 Capitol Mall Sacramento, CA 95814    \  www.spb.ca gov	Governor Edmund G. Brown Jr.

BOARD RESOLUTION ADOPTING
SPECIAL INVESTIGATION REPORT AND FINDINGS BY SPB COMPLIANCE REVIEW DIVISION OVER ADDITIONAL APPOINTMENTS OF SUPERVISORIAL AND MANAGERIAL EMPLOYEES IN
THE CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION

WHEREAS, the State Personnel Board (SPB or the Board) at its duly noticed meeting of May 16, 2013, carefully reviewed and considered the attached Special Investigation Report submitted by SPB's Compliance Review Division concerning additional appointments of supervisorial and managerial employees in the California Department of Forestry and Fire Protection.
WHEREAS, the Report was prepared following a special investigation that was conducted in response to the Legislature's request to examine whether the practice of appointing supervisorial and/or managerial employees in additional rank-and-file positions within the California Department of Forestry and Fire Protection violates civil service laws.
WHEREAS, each Report details the background, scope and methodology of the review, the findings and recommendations, and the affected department's response.
NOW, THEREFORE, BE IT RESOLVED, that the Board hereby adopts the  Report, including all findings and recommendations contained therein, and authorizes the issuance of the Report to the Legislature in response to its request  for review.  A true copy of the Report shall be attached to this Board Resolution and the adoption of the Board Resolution shall be reflected in the record of the meeting and the Board's minutes.
Executive Off1ee 916-653-1028 Appeals Division 916-653-0799
Compliance Review/Policy Divisions 916-651-0924 Legal Office 916-653-1403

Board Resolution Adopting Special Investigation Report Re
The California Department of Forestry and Fire Protection
Page 2

* * * * *

The foregoing Board Resolution was made and adopted by the State Personnel Board during its meeting on May 16, 2013, as reflected in the record of the meeting and Board minutes.

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