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Template - Preliminary Determination of Potential Unlawful Appointment (Minimium Qualifications Not Met)

Template - Preliminary Determination of Potential Unlawful Appointment (Minimium Qualifications Not Met)

Department Letterhead

Date

 

Employee Name

Employee Address 1

Employee Address 2

 


Personnel Officer Name

Department Name

Department Address

Personnel Officer

Human Resources Division

 


SUBJECT: PRELIMINARY DETERMINATION REGARDING POTENTIAL UNLAWFUL APPOINTMENT

 

The [DEPARTMENT] reviewed your appointment to the classification of [CLASSIFICATION TITLE] effective [DATE].

 

Based on information available, the [DEPARTMENT NAME] determined the appointment may be unlawful, as [EMPLOYEE NAME] [REASON FOR UNLAWFUL APPOINTMENT DETERMINATION].  The [DEPARTMENT NAME] concluded that while it appears [EMPLOYEE NAME] acted in good faith, the appointment failed to adhere to established merit-based selection mandates resulting in a potential unlawful appointment.  The [DEPARTMENT] is hereby issuing notice, pursuant to SPB Rule 266.2*, to allow you an opportunity to provide additional information before the [DEPARTMENT] takes corrective action.

 

The [DEPARTMENT] conclusion is based on the following findings:

 

[LIST FACTS AND INFORMATION RELEVANT TO THE UNLAWFUL APPOINTMENT DETERMINATION] investigating, but not limited to date of appointment, minimum qualification of classification, employment history, work background, education.

 

  1. On [DATE], you were appointed to the [CLASSIFICATION NAME] classification; it appears you do not meet the minimum qualifications of the [CLASSIFICATION NAME].

  2. The minimum qualifications for the [CLASSIFICATION NAME] state:

     

    [CLASSIFICATION MINIMUM QUALIFICATIONS]

     

    Your official employment history contains documentation of employment with the State of California prior to your appointment to the [CLASSIFICATION NAME] classification as follows:

     

    [EMPLOYEE EMPLOYMENT HISTORY – PIMS HISTORY]

     

    Work experience on your employment application and in your resume included duties prior to your state employment:

     

    [EMPLOYEE WORK BACKGROUND – RESUME AND APPLICATION]

     

    No evidence of meeting the minimum qualification of [CLASSIFICATION NAME].

     

  3. On or about [DATE], the [DEPARTMENT NAME] issued a letter informing you of your potential unlawful appointment into the [CLASSIFICATION NAME] classification.

 

Government Code Section 19257.5 provides, “Where the appointment of an employee has been made and accepted in good faith, but where such appointment would not have been made but for some mistake of law or fact which if known to the parties would have rendered the appointment unlawful when made, the board may declare the appointment void from the beginning if such action is taken within one year after the appointment.”  The one year statute has not elapsed.

 

Per California Code of Regulations, Section 266, if the appointment is determined to have been made in good faith, you will be allowed to retain the compensation you received due to the unlawful appointment. If it is determined that you acted in other than good faith, you may be required to reimburse all compensation resulting from the appointment.

 

You have fifteen (15) calendar days from the receipt of this letter to provide additional information for consideration before we render a final decision.  Any additional information should be submitted in writing to [ASSIGNED STAFF] [STAFF ADDRESS/EMAIL].

 

If you have any questions regarding this letter, please contact [ASSIGNED STAFF] [STAFF CONTACT INFOTMATION]

 

Sincerely,

 

/s/Personnel Officer

Personnel Officer Name

Personnel Officer

Department Name

Human Resources Division

 

Enclosed

 

Information about the Unlawful Appointment Review Process

 

CC:

Employee Name, Official Personnel File

 

*Title 2, California Code of Regulations, §266.2 Provides:

 

At least 15 days prior to the date the board plans to take correvtive action on an unlawful appointment, the executive officer shall notify the employee and the employee's appointine powerof the proposed action. This notice shall state the reason(s) for the proposed action and notify the employee and the appointing powerof their right to respond to the notice within the fifteen days either verbally or in writing.

  Updated: 5/12/2014
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