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Laws and Rules of Unlawful Appointments

Laws and Rules of Unlawful Appointments

The following laws and rules govern unlawful appointments:

Government Code (GC) 19257. Any person acting in good faith in accepting an appointment or employment contrary to this part or the rules prescribed hereunder, shall be paid by the appointing power the compensation promised by or on behalf of the appointing power or, in case no compensation is so promised, then, the actual value of any service rendered and the expense incurred in good faith under such attempted appointment or employment, and has a cause of action against the appointing power therefor.

 

GC 19257.5. Where the appointment of an employee has been made and accepted in good faith, but where the appointment would not have been made but for some mistake of law or fact that if known to the parties would have rendered the appointment unlawful when made, the department may declare the appointment void from the beginning if the action is taken within one year after the appointment.

 

GC 19585(b). An appointing power may terminate, demote, or transfer an employee who fails to meet the requirement for continuing employment that is prescribed by the board on or after January 1, 1986, in the specification for the classification to which the employee is appointed.

 

GC 19760-19765. Prohibits continued payment of salaries and benefits to employees who are unlawfully holding illegal appointments.

 

California Code of Regulations (CCR) § 8. Good Faith Appointment Requirements and Sanctions for Violation. To be valid, a civil service appointment must be made and accepted in “good faith” under the civil service statutes and board regulations. For purposes of administering the civil service statutes, including Government Code Sections 19257 and 19257.5 and board Regulations, “good faith” is presumed to exist in the following circumstances:

 

(a) In order to make an appointment in “good faith,” an appointing power and all officers or employees to whom an appointing power delegates appointment authority must:

 

  1. Intend to observe the spirit and intent of the law; and

  2. Make a reasonable and serious attempt to determine how the law should be applied; and

  3. Assure that positions are properly classified; and

  4. Assure that appointees have appropriate civil service appointment eligibility; and

  5. Intend to employ the appointee in the class, tenure and location to which appointed under the conditions reflected by the appointment document; and

  6. Make a reasonable and serious attempt to provide the relevant reference materials, training, and supervision necessary to avoid any mistakes of law or fact to the persons responsible for the pertinent personnel transactions; and

  7. Act in a manner that does not improperly diminish the rights and privileges of other persons affected by the appointment, including other eligibles.

 

Any officer or employee who violates any of the foregoing provisions of this regulation, or any other officer or employee in a position of authority who directs any officer or employee to violate any of these provisions, shall be subject to civil or criminal sanctions as provided in Government Code Sections 19680, 19681, 19682, 19683, 19764, as well as adverse action as provided in Government Code Sections 19572, 19583.5, or 19682.

 

(b) In order to accept an appointment in “good faith,” an employee must:

 

  1. Intend to serve in the class to which the employee is being appointed under the tenure, location and other elements of the appointment as reflected by the appointment document; and

  2. Provide the appointing power with complete, factual, and truthful information necessary for a proper appointment; and

  3. Make a reasonable attempt to seek correction of any aspects of the appointment that the employee knows are illegal.

 

Violation of any of the foregoing provisions of this section by an employee shall be cause for adverse action.

 

If a lack of good faith exists on the part of either the appointing power or the employee, the executive officer may cancel the improper appointment without regard to the one-year limitation set forth in Government Code Section 19257.5 subject to the provisions of Section 266.

 

California Code of Regulations (CCR) § 9. Compensation. The word “compensation” as used in Government Code Section 19257 includes salary, vacation, sick leave, health benefits, retirement benefits, salary step advancement and State service credit for determining vacation earning rates and eligibility for a salary above the minimum rate when legally appointed to the class, Industrial Disability Leave, Nonindustrial Disability Insurance benefits and red circle rates. “Compensation” also includes the continuity of service when used to determine the employee's eligibility for these compensation items.

 

“Compensation” as used in Government Code Section 19257 does not include tenure in a position, seniority credits, permissive reinstatement, eligibility, mandatory reinstatement rights, eligibility to take promotional examinations, career credits, permanent or probationary status and service toward completion of the probationary period; nor continuity of service when used to determine the employee's right to or eligibility for any of the foregoing.

 

CCR § 266. Correction of Appointments. When the executive officer determines that an appointment is unlawful, the executive officer shall determine the good faith of the appointing power and the employee under Section 8 and shall take corrective action up to and including voiding the appointment, provided that:

 

No corrective action shall be taken on any appointment which has been in effect for one year or longer if both the appointing power and the employee acted in good faith; and

 

  1. No corrective action shall be taken on any appointment which has been in effect for five years or longer unless:

  2. The employee acted in other than good faith; or

  3. The executive officer determines that the rights of another employee are significantly endangered by the retention of the appointment in question.

 

When an unlawful appointment is terminated or corrected, the employee who acted in good faith shall retain only the compensation as defined in Section 9. In all cases, compensation shall be corrected on a prospective basis.

 

The employee who acted in other than good faith shall reimburse all compensation resulting from the appointment. The board in reviewing cases on appeal may, based upon the evidence, provide for less than full reimbursement of compensation.

 

CCR § 266.1. Remedial Measures. When the appointment of an employee who acted in good faith is being terminated pursuant to Section 266, the employee shall be afforded:

 

  1. deferred competition in examinations in which, in the judgment of the executive officer, the employee would be likely to have competed if he or she had not accepted the terminated appointment, provided that the examination is in progress or that the eligible list which resulted from the last examination for the class is still existing and valid; and

  2. Placement back on the eligible list from which the employee was unlawfully appointed, provided that the eligible list still exists and is valid.

 

CCR § 266.2. Right to Respond. At least fifteen days prior to the date the board plans to take corrective action on an unlawful appointment, the executive officer shall notify the employee and the employee's appointing power of the proposed action. This notice shall state the reason(s) for the proposed action and notify the employee and the appointing power of their right to respond to the notice within the fifteen days either verbally or in writing.

 

CCR § 266.3. Right to Appeal. When corrective action is taken on an unlawful appointment, the employee and the appointing power may file a written appeal with the board within 30 calendar days after the date of notification of the board's final decision to take the corrective action upon which the appeal is based.

  Updated: 8/13/2014
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