November 24, 2009
Mr. John 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 Staff Services Manager I, effective July 31, 2009, made on a permanent basis.
Based on information available, the TAG determined that the appointment maybe unlawful as you did not have transfer eligibility to the SSM I classification. 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 by the State Controller’s Office (SCO). This conclusion is based on the following facts:
Effective July 31, 2009, you transferred to the TAG, to the class of Staff Services Manager I. Your previous classification was Associate Governmental Program Analyst with the Department of Surfing High Waves.
On August 28, 2009, the hiring documents were forwarded to the TAG Human Resources Services Division.
On September 3, 2009, the transfer calculation worksheet was brought to the attention of a TAG Classification and Pay Analyst. It was determined that the transfer was unlawful.
This appointment was inappropriate because transfers from rank and file to supervisory violate the transfer criteria set forth in SPB Rule 430 and SPB Rule 433(b)(6). You did not/do not have list eligibility for the SSM I 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.” Because your appointment occurred on July 31, 2009, the one-year time 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 the 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
John Smith, Official Personnel File
*Title 2, California Code of Regulations, § 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.