August 20, 2012
Ms. Jane Smith
1234 Love Lane
Sacramento, CA 95814
Mr. David Jones
California Department of Turnip and Greens
Human Resources Division
5555 Governmental Blvd.
Sacramento, CA 12345
RE: PRELIMINARY DETERMINATION REGARDING POTENTIAL UNLAWFUL APPOINTMENT
The Department of Turnip and Greens (TAG) has had the opportunity to review your appointment to the class of Assistant Chief, effective February 6, 2012, made on a permanent basis.
Based on information available, the TAG has determined that the appointment maybe unlawful because you were not in a reachable rank on the eligible list at the time of the appointment on February 6, 2012. The TAG is hereby issuing notice, pursuant to SPB Rule 266.2*, to allow you an opportunity to provide additional information before corrective action is taken. The TAG conclusion is based on the following facts:
On January 19, 2012, contact letters were sent to eligibles on the Assistant Chief Certification list.
Hiring interviews were conducted on February 1, 2012, and February 3, 2012. You were selected and offered the position.
The effective date of your appointment was February 6, 2012.
Subsequent to your appointment, another eligible who applied for the position filed an appeal with the State Personnel Board (SPB) Appeals Division. This eligible asserted that you were not in a reachable rank at the time of selection.
A review of the certification list and the method utilized by TAG to clear ranks raised concerns regarding your appointment. The TAG failed to consider, and schedule interviews for, eligibles on the certification list who were not then current employees. This violates the merit principles and is against the established laws and rules related to clearance of certification lists.
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.” Your appointment occurred on February 6, 2012, and the one-year period 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 that you would like TAG to consider before we render a final decision. Any additional information should be submitted in writing to your personnel officer.
If you have any questions regarding this letter, please contact your personnel office at (916) 555-1234.
Information about the Unlawful Appointment Review Process
Jane Smith, Official Personnel File
*Title 2, California Code of Regulations, section 266.2 provides: 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.