Laws and Rules of Unlawful Appointments
Departments are responsible for ensuring the Unlawful Appointment laws and rules cited below are relevant and applicable.
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.
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.
Prohibits continued payment of salaries and benefits to employees who are unlawfully holding illegal appointments.
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.
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.
(a) To be valid, all civil service appointments require that the appointing power make and the employee accept the appointment in good faith, as specified herein.
(b) An appointment made in good faith is presumed to exist when the appointing power, including any and all officers and employees of the appointing power who are delegated any responsibility related to the appointment, does all of the following:
- Intends to follow the spirit and intent of any applicable laws, regulations, and policies.
- Makes a reasonable and serious attempt to determine how any applicable laws, regulations, and policies should be applied to the appointment.
- Ensures that the position of the appointment has been properly classified.
- Ensures prior to the appointment that the selected candidate is eligible for the appointment.
- Intends to employ the selected candidate in the classification, tenure, and location, and under the terms and conditions set forth in the appointment documents.
- Makes serious and reasonable efforts to provide officers and employees involved in the selection process the relevant reference materials, training, and supervision necessary to avoid any mistakes of law or fact related to making civil service appointments.
- Acts in a manner that does not violate the rights and privileges of other persons affected by the appointment, including other eligible candidates.
(c) An appointment accepted in good faith is presumed to exist when the employee does all of the following:
- Answers all questions, including but not limited to, questions related to experience, education, and level of competencies, truthfully and honestly.
- Makes sincere and reasonable efforts to provide complete, accurate, and factual information whether verbally or on documents or other materials.
- Makes prompt and reasonable efforts to correct any information, documents, or other materials that the employee, while initially believing were correct, later learns is inaccurate, misleading, or false.
- Intends to serve in the classification, tenure, and location, and under the terms and conditions set forth in the appointment documents.
(a) Any officer or employee who violates or directs another officer or employee to violate any of the provisions set forth in section 243, subdivision (b) shall be subject to adverse action, as provided in Government Code sections 19570, 19572, and 19590.
(b) Violation of any of the provisions set forth in section 243, subdivision (c) by an employee shall be cause for adverse action, as provided in Government Code sections 19570 and 19572.
(c) Nothing herein shall be construed so as to contravene the grounds for unlawful conduct that may also be applicable, as set forth in Government Code sections 19680 et seq.
(a) When the Board, Executive Officer, or Department determines that an appointment is unlawful, the Board, Executive Officer, or Department may take corrective action up to and including voiding the appointment under the following circumstances:
- The action to correct or void the appointment is taken within one year after the appointment; and
(A) The appointing power or employee or both the appointing power and employee acted in other than good faith; or
(B) The appointment was accepted and made in good faith by both the appointing power and employee; and 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.
(b) When the Board or Executive Officer determines that an appointment is unlawful and the appointment has been in effect for longer than one year, the Board or Executive Officer may take corrective action up to and including voiding the appointment under any or all of the following circumstances:
- The employee acted in other than good faith.
- The appointing power acted in other than good faith.
- The action(s) or omission(s) found to render the appointment(s) unlawful resulted in a selection process not based solely on merit or that significantly disadvantaged the other candidates.
(c) Where corrective action includes voiding an appointment(s), the Board, Executive Officer, or Department, whichever has decided to take the action, may order the appointing power to void the appointment(s) and provide the affected employee(s) the right to respond to the appointing power, as set forth in section 243.5.
(d) The provisions herein shall not limit or restrict the authority to delegate powers and duties related to the correction of unlawful appointments, as expressed in section 37.
(a) For purposes of this section, the meaning of compensation as defined in section 9 shall apply.
(b) An employee who accepted an appointment in good faith that is subsequently voided or corrected shall retain only the compensation provided for in section 9 of the Board's regulations. In all cases, compensation shall be corrected on a prospective basis.
(c) An employee who acts in ways other than in good faith when accepting an appointment that is subsequently voided or corrected shall reimburse all compensation resulting from the appointment. In the event of an appeal to the Board challenging the amount of reimbursement, the Board may provide for less than full reimbursement of compensation based upon the evidence presented.
(a) When the appointment of an employee who acted in good faith is terminated pursuant to section 243.2, the employee shall be afforded:
- Deferred competition in any examination in which the employee is qualified and the Department determines the employee would have likely competed if he or she had not accepted the terminated appointment, provided that the examination is in progress or the eligible list for the examination is still existing and valid; and
- Placement back on the eligible list from which the employee was unlawfully appointed, provided the eligible list still exists and is valid.
Unless otherwise ordered pursuant to section 243.2, subdivision (c), where corrective action of an unlawful appointment(s) is determined appropriate the Board, Executive Officer, or Department, whichever has decided to take the action, shall notify the affected employee(s) and appointing power of the proposed action at least 15 calendar days prior to the effective date of the proposed action. The notice shall state the reason(s) for the proposed action and notify the employee(s) and the appointing power of their right to respond, either verbally or in writing, within 15 calendar days of the date of the notice.
(a) When the Executive Officer or Department takes action to correct an unlawful appointment(s) that includes voiding the appointment(s), the employee(s) and/or the appointing power may file a written appeal to the Board within 30 calendar days of receipt of the final decision to take corrective action. Where the corrective action is taken solely as to the appointing power and does not impact the appointment, the appointing power may file a written appeal to the Board within 30 calendar days of receipt of the final decision to take corrective action.
(b) When the Board takes action to correct an unlawful appointment(s) that includes voiding the appointment(s), the employee(s) and/or the appointing power may file a written petition for reconsideration to the Board within 30 calendar days of receipt of the final decision to take corrective action. Where the corrective action is taken solely as to the appointing power and does not impact the appointment, the appointing power may file a written petition for reconsideration to the Board within 30 calendar days of receipt of the final decision to take corrective action.
The provisions, procedures, or rights set forth in sections 243.1 (Adverse Actions for Violations of Good Faith), 243.2 (Correction of Unlawful Appointments), 243.3 (Compensation or Reimbursement for Voided Appointments), 243.4 (Remedial Measures) 243.5 (Right to Respond), and 243.6 (Right to Appeal or Reconsideration) shall apply to CEA appointments found to be in violation of the good faith requirements of section 548.120.
