SPB Board Resolution re: DFEH and Angelina Endsley

8/13/2019 SPB Board Resolution re: DFEH and Angelina Endsley

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In the Matter of the Civil Service Appointments Rendered by the

CALIFORNIA DEPARTMENT OF FAIREMPLOYMENT AND HOUSING

For

ANGELINA ENDSLEY

Case No. 13-1216N

BOARD RESOLUTION AND ORDER

The State Personnel Board (the Board) on January 23, 2014, carefully

considered the Proposed Decision filed by the Staff Hearing Officer (SHO) in the Matter

of the Civil Service Appointments rendered by the Department of Fair Employment and

Housing (DFEH) for Angelina Endsley (Endsley), Case No. 13-1216N.

IT IS RESOLVED AND ORDERED THAT:

1. The Board adopts the findings of fact, determination of issues, and Proposed

Decision of the SHO as its Decision in the case on the date set forth below. The Board

finds that DFEH unlawfully appointed Endsley to the positions of FEH Consultant III

(Specialist) and FEH Administrator I. Further, DFEH did not act in good faith in making

these appointments. 1 Specifically, by admission and in evidence, DFEHs personnel

1 California Code of Regulations, title 2, section 8 provides in pertinent part:

To be valid, a civil service appointment must be made and accepted in good faithunder the civil service statutes and board regulations. For purposes ofadministering the civil service statutes, including Government Code Sections19257 and 19257.5 and board Regulations, good faith is presumed to exist in thefollowing circumstances:

(a) In order to make an appointment in good faith, an appointing power and allofficers or employees to whom an appointing power delegates appointmentauthority must:


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CALIFORNIA DEPARTMENT OFFAIR EMPLOYMENT AND HOUSING

For ANGELINA ENDSLEYCase No. 13-1216N

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and management staff were aware or otherwise had knowledge that Endsley did not

have the required education and/or experience necessary to meet the Minimum

Qualifications for appointment to either classification. Despite this knowledge, DFEH

approved the appointments in violation of the merit principle.

2. Based on the facts established in the underlying proceedings, the Board has

serious concerns that civil service laws and rules pertaining to the selection of qualified

candidates are being wilfully ignored or disregarded by DFEHs personnel and

management staff. The cornerstone of the civil service system is that selection be

based on merit. ( Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 184.)

(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 beapplied; 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 whichappointed under the conditions reflected by the appointment document; and

(6) Make a reasonable and serious attempt to provide the relevant referencematerials, training, and supervision necessary to avoid any mistakes of law or factto the persons responsible for the pertinent personnel transactions; and

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

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


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Appointing a candidate to a position knowing that she does not possess the requisite

experience or education is in direct contravention of the merit principle and the civil

service laws and rules that support and protect that principle. To this end, the Board

finds that a review and audit of DFEHs selection practices and process is needed not

only to determine whether there are any other violations of the civil service rules, but

also to ensure the integrity of the civil service system. Accordingly, in addition to the

recommendation in the Proposed Decision, the Board, consistent with its constitutional

and statutory authority under Government Code section 18660, et seq., hereby directs

the State Personnel Boards Compliance Review Division to conduct an appropriate

audit and review of DFEHs personnel practices with respect to its selection process

from January 1, 2009, to the date of this Order.

3. This matter is referred to the Chief Administrative Law Judge or his designee for

the purpose of investigating the actions of current and former DFEH personnel involved

in Endsleys unlawful appointments as identified in the adopted Proposed Decision.

Following the investigation, the Chief Administrative Law Judge or his designee shall

prepare findings and make recommendations on whether disciplinary actions against

any individuals that are the subject of this investigation are appropriate. The findings

and recommendations shall be submitted to the Executive Officer or her designee. In

accordance with Title 2, California Code of Regulations, section 8, the Executive Officer

or her designee may direct that adverse actions be taken against any individuals as

may be recommended.


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4. DFEH is ordered to preserve all documents and materials maintained in any form

pertaining to its selection practices, processes, and appointments made from January 1,

2009, to the date of this Order.

5. A true copy of the Proposed Decision shall be attached to this Board Resolution

and Order for delivery to the parties in accordance with the law, and that adoption of the

Board Resolution and Order shall be reflected in the record of the meeting and the

Boards minutes. The Board received a correspondence from the DFEH dated January

22, 2014, requesting a stay of the Boards Decision and Order in the event that the

Board finds an unlawful appointment of Endsley. The DFEH requested the stay in order

to consider its appeal options. The request was considered by the Board and is denied.

The Decision and Order is effective upon its issuance.

The foregoing Board Resolution and Order was made and adopted by the Board

in Case No. 13-1216N during its meeting on January 23, 2014, as reflected in the

record of the meeting and Board minutes.

/s/ SUZANNE M. AMB ROSE

SUZANNE M. AMBROSEExecutive Officer


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Angelina EndsleyCase No. 13-1216N

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CALIFORNIA DEPARTMENT OF FAIREMPLOYMENT AND HOUSING

For

ANGELINA ENDSLEY

Case No. 13-1216N

Proposed Decision

STATEMENT OF CASE

In 2013, the Compliance Review Division (CRD) of the State Personnel Board

(Board) conducted a review of the personnel practices for the Department of Fair

Employment and Housing (DFEH) for the period of May 1, 2011, through November 1,

2012. During the compliance review period, the CRD noted that the appointment of

Angelina Endsley (Endsley) to the classification of Fair Employment and Housing (FEH)

Consultant III (Specialist), on February 2, 2012, may be unlawful, prompting the CRD to

make a further inquiry into the matter with the Personnel Office for DFEH.

On June 27, 2013, DFEHs Personnel Officer/Labor Relations Officer Kim Ferrell

(Ferrell), in response to CRDs inquiry, noted that Endsley did not have the required

education and/or experience necessary to meet the Minimum Qualifications (MQs) for

admittance to the Special Investigator examination. Because Endsley was appointed to

the FEH Consultant III (Specialist) position from the Special Investigator eligibility list,

her appointment to FEH Consultant III was illegal. However, Ferrell asserts that the

subsequent appointment of Endsley to the position of FEH Administrator I was

appropriate in spite of the unlawful appointment to FEH Consultant III.

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Without making any further findings regarding Endsleys appointment, the CRD

referred this matter to the Appeals Division (AD) for further investigation.

Endsley and DFEH were noticed that a hearing would be held on October 1,

2013, to determine whether Endsleys appointments were unlawful. Endsley and DFEH

were requested to provide a written response pursuant to California Code of

Regulations, title 2, section 266.2. DFEH submitted a response on behalf of both

Parties.

This matter came on regularly for hearing in Sacramento on November 6, 2013,

before the Boards Staff Hearing Officer Richard E. Silva, Jr. Endsley and DFEH were

represented by Phoebe Liu, Senior Staff Counsel, DFEH.

In attendance at the hearing also, were Tyra Gilmer (Gilmer), former DFEH

Personnel/Labor Relations Officer; Kim Ferrell (Ferrell), current DFEH Personnel/Labor

Relations Officer; Robin Icelow (Icelow), former DFEH Associate Personnel Analyst

(APA), and Chris Thomas (Thomas), current DFEH Associate Personnel Analyst (APA).

ENDSLEYS POSITION

Endsley states that her education, combined with her experience as a paralegal

in private practice, and her experience as a Legal Analyst with DFEH, demonstrates

that she meets the MQs for the FEH Consultant III (Specialist) classification. Endsley

further states that her education and experience, gained as a FEH Consultant III

(Specialist), demonstrates that she meets the MQs for the Administrator I classification

to which she was appointed on February 11, 2013. Endsley also states that she

reasonably interpreted the MQs for the aforementioned classifications by analyzing and

comparing her experience and education. She did not consult with her Human


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Resources Department. Lastly, Endsley states she acted in good faith throughout the

selection process.

DFEHS POSITION

Ferrell, who possessed more than ten years of experience in California state civil

service in the field of human resources, responded on behalf of the DFEH, admitting

that Endsley did not have the required education and/or experience necessary to meet

the MQs for admittance to the Special Investigator examination. Thus, Endsleys

subsequent appointment to FEH Consultant III (Specialist) classification is unlawful.

Ferrell copied her CRD response to Monica Rea (Rea), Deputy Director of

Administration, DFEH and Nelson Chan (Chan), Chief of Enforcement, DFEH, neither of

which refuted Ferrells findings, and through their silence acquiesced to Ferrells

position, thus adopting Ferrells admission as that of the DFEHs.

However, in a subsequent response to SPBs investigation and at hearing on this

matter, DFEH asserts that Endsleys appointments were lawful, as she met the MQs

required for all the classifications involved in the selection processes. DFEH further

asserts that all of the DFEH personnel involved in Endsleys selection process acted in

good faith. DFEH requests that Endsleys appointments to the classifications of FEH

Consultant III (Specialist) and FEH Administrator I, are found lawful and that her

appointment not be voided.

PRINCIPLES OF LAW AND ANALYSIS

Government Code section 19050 requires an appointing power to fill all civil

services positions by appointment, which includes transfers, reinstatements,

promotions, and demotions. Accordingly, each appointee who is subject to the


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selection process must meet specific criteria, as set forth in the relevant civil service

laws and regulations. Thus, in determining whether Endsleys appointments to the

classifications of Legal Analyst, FEH Consultant III (Specialist) and FEH Administrator I

were lawful, an analysis of the selection processes under applicable law is necessary.

Legal Analyst Appointment

Endsley was appointed to the classification of Legal Analyst on August 9, 2012,

from an eligibility list. A review of Endsleys list appointment did not disclose any

irregularities; therefore, the appointment of August 9, 2012, is not subject to review in

this opinion.

Consultant III (Specialist) Appointment

Appropri ate List Usage - Pursuant to Government Code section 19055

(hereinafter Section 19055), a hiring authority may, consistent with board rules, obtain

the certification of names from appropriate employment lists of an equal or higher level

classification in the event an employment list is not available for the particular class for

which the hiring authority wishes to fill.

In January of 2012, DFEH did not have an eligibility list for the classification of

Consultant II or III. Thus, the use of the Special Investigator eligibility list to promote

candidates to the Consultant II and/or Consultant III was approved following a request

to the State Personnel Board as an appropriate list.

In particular, DFEH sought permission from the Examination Services Unit (ESU)

of the Board to utilize the Special Investigator list as the appropriate eligibility list to hire

Consultant IIs and/or Consultant IIIs. The ESU granted DFEH permission to utilize the

Special Investigators list on September 8, 2011. Specifically, the authorization in the


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form of an email stated in pertinent part, you may use the Special Investigator list to fill

Consultant II and III vacancies. Please remember that if you have a current Consultant

II and/or Consultant III lists, then these must be utilized first. After those lists are

exhausted, then the candidates selected from the Special Investigator list must also

meet the Minimum Qualifications for Consultant II and/or III depending on the vacancy.

(Emphasis added.)

On December 30, 2011, Endsley self-certified her MQs for the classification of

Special Investigator and completed the online examination obtaining a score of 95%,

which placed her in rank 3. DFEH appointed Endsley to the classification of Consultant

III (Specialist) on February 2, 2012, by making the appointment from the Special

Investigator list.

Minimum Qualifications - The MQs are the minimum education and experience

qualifications each candidate must possess in order to compete in a promotional

examination. (Cal. Code Regs., tit. 2, 237, hereinafter Section 237)

In order to appoint from an appropriate employment list, the selected candidate

must meet the MQs for both the appropriate employment list classification and the

classification the person was appointed to, so DFEH was responsible for ensuring that

Endsley met and/or exceeded the MQs for both classifications (Special Investigator and

FEH Consultant III), before appointing Endsley to a permanent position.

Special Investigator Classification

The MQs for the classification of Special Investigator are as follows:

Pattern I Equivalent to graduation from an accreditedcollege/university with either a:

/ / /


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public administration. (Additional qualifying experience may besubstituted for the required education on a year-for-year basis.)

Applicants who are being considered for Special Investigatorpositions must possess the educational equivalent to completion ofthe twelfth grade; and

Experience: One year of experience in the California state serviceperforming duties at a level comparable to those of either anInvestigator Assistant, Special Investigator Assistant, or in aninvestigation assignment in the class of Management ServicesTechnician, Range B. (Applicants who have completed six monthsof service in the class of either Investigator Assistant, SpecialInvestigator Assistant, or Management Services Technician, RangeB, will be admitted into the examination, but they must satisfactorilycomplete one year of experience in the class before they can be

considered eligible for appointment.)

Pattern III consists of an education component and an experience component,

each are explored separately below.

Education - At the time of application for the Special Investigator examination,

Endsley possessed an Associates of Arts (AA) degree in Paralegal Studies and

successfully completed 42 semester units in a Criminal Justice program with the

University of Phoenix, working towards a bachelors degree. Endsleys AA in Paralegal

Studies does not meet the education component in Pattern III because the core matter

of Endsleys AA revolves around the substantive and procedural study of law and not

criminal justice. Moreover, Endsleys criminal justice studies equate to 42 units, which

is less than the required 60 units needed to be equivalent to completion of two years of

college with a major in criminal justice, law enforcement, etc.

While Endsley and DFEH argued that her education should be combined to meet

this requirement, the combination is inappropriate as each degree program constitutes

distinctly different areas of study. Paralegal studies involve the substantive


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and procedural aspects of the practice of law in support of attorneys, whereas studies in

criminal justice, law enforcement, criminology, police science, administration of justice,

business, or public administration, involve learning investigative techniques, interview

and interrogation techniques, adult and juvenile justice systems, business models,

management styles, theories of bureaucratic function, etc. Thus, Endsley does not

meet the education component of pattern III.

Experience At the time of application, Endsley had four years, three months,

and 22 days of Paralegal/Legal Analyst experience in the private sector, with one year,

five months, and 21 days experience in California State service as Legal Analyst with

DFEH. Endsleys experience as a Paralegal/Legal Analyst in the private sector is non-

qualifying experience, as a review of evidence submitted found that she primarily

performed duties administratively supporting attorneys in litigation and did not perform

investigative functions comparable to the duties of a Special Investigator.

According to Endsleys Legal Analyst Duty Statement, 45% of her duties were

devoted to various investigative aspects similar to those of FEH Consultant II, and

comparable to duties performed by either an Investigator Assistant or Special

Investigator Assistant.

Specifically, as a Legal Analyst with DFEH, and like an Investigator Assistant or

Special Investigator Assistant, Endsley assisted with the more routine phases of

licensing and enforcement investigations; assisted in locating and interviewing

witnesses and persons suspected of violations; assisted in obtaining and presenting

facts and evidence to support administrative action or prosecution.

/ / /


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As such, it is reasonable to conclude that Endsleys duties were comparable to

an Investigator Assistant or Special Investigator Assistant; however, the investigative

tasks assigned to Endsley are only 45 percent of her designated work time, and as

such, Endsley would not be entitled to credit for full-time experience. 1 Therefore, when

evaluating Endsleys one year, five months, and 21 days of California state service

experience, the fact that she only spent approximately 45% of her time performing these

duties must be considered. As such, her qualifying experience equates to eight months

and one third of a day. In addition to failing to meet the educational requirement,

Endsley also lacked three months and 29 2/3 days of applicable California State service

experience to meet the experience criteria under pattern III, and therefore, failed to

meet the MQs for entrance into the Special Investigator examination.

FEH Consultant III (Specialist) Classification

The MQs for the FEH Consultant III (Specialist) are as follows:

Pattern I One year of experience in the California state serviceperforming the duties of a Fair Employment and HousingConsultant II.

At the time of application, Endsley had never been appointed to the classification

of FEH Consultation II. Therefore, Endsley does not meet the criteria under pattern I.

Pattern II Experience: Four years of the above-describedexperience. (Experience in the California state service appliedtoward this requirement must include at least one year in a class

with a level of responsibility equal to a Fair Employment andHousing Consultant II.); and

Education: Equivalent to graduation from college. (Additionalqualifying experience may be substituted for the required educationon a year-for-year basis.)

1 See California Code of Regulations, title 2, section 171.1 and section 6200 of the Selection Manual.


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Experience - At the time of application, as discussed above, Endsley had five

years, nine months, and 13 days of Paralegal/Legal Analyst experience in the private

and public sector. However, Endsleys experience as a Paralegal/Legal Analyst in the

private sector is non-qualifying experience, as a review of evidence submitted found

that she primarily performed duties administratively supporting attorneys in litigation and

did not perform investigative functions comparable to the duties of a FEH Consultant II.

As noted above, as a Legal Analyst with DFEH, Endsley assisted with the more

investigative tasks similar to those of a FEH Consultant II. However, these tasks were

only 45 percent of her designated work time, and as such, Endsley would not be entitled

to credit for full-time experience. Therefore, when evaluating Endsleys one year, five

months, and 21 days of California state service experience, the fact that she only spent

approximately 45% of her time performing these duties must be considered. As such,

her qualifying experience equates to eight months and one third of a day. Endsley

lacked three months and 29 2/3 days of applicable California State service experience

to meet the experience criteria under pattern III, and therefore, failed to meet the MQs

of a FEH Consultant III (Specialist).

Education - Pattern II also has an education requirement in addition to the

experience requirement which asserts that candidates must have graduated from

college with a bachelors degree. The Staff Hearing Officers (SHO) review of the

evidence submitted determined that at the time of application, Endsley had not gained a

bachelors degree, nor had she submitted a letter from the college or university stating

that the applicant has met all the academic requirements for graduation. Thus, Endsley

did not meet the education requirement under pattern II. In the alternative to having


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attained a degree, the MQs permit that additional qualifying experience may be

substituted for the required education on a year-for-year basis. Therefore, Endsley

would need a total of eight years of work experience performing duties equal to that of a

FEH Consultant II with at least one year of experience in California State service in a

class with a level of responsibility equal to a FEH Consultant II.

At the time of application, Endsley had not met the requirement, as her

experience in California State service was insufficient since she has less than one year

of qualifying experience, as discussed above. Furthermore, Endsleys outside state

service experience as a paralegal was non-qualifying as her paralegal duties were not

comparable to investigative work performed by Consultants in the FEH

Consultant/Administrator series. Thus, Endsley did not meet the MQs requirement

under pattern II.

FEH Administrator I Appointment

Appropri ate List Usage As discussed above, under Section 19055, an

appointing authority may use an appropriate employment list in the alternative, when

the appointing authority does not have an existing list for a classification they wish to

promote from, so long as the candidate meets the MQs for both classifications.

In the instant matter, DFEH had no existing eligibility list for the Administrator I

classification, and utilized the Staff Services Manager II (SSM II) eligibility list as an

appropriate employment list 2. Therefore, Ms. Endsley must meet the MQs for both the

SSM II and FEH Administrator I classifications in order to compete in the selection

2 No permission is required from the Board or CalHR, when an appropriate employment list is used bythe appointing power, if the examination utilized is a consortium examination in which the appointingauthority is a participating department.


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process for FEH Administrator I. Accordingly, DFEH was responsible for ensuring that

Endsley met and/or exceeded the MQs for both classifications (SSM II and FEH

Administrator I).

Staff Services Manager II Classification

The MQs of the Staff Service Manager II classification are as follows:

Pattern I One year of experience in the California state serviceperforming the duties of a Staff Services Manager I.

In the matter at hand, Endsley has never been appointed to a Staff Service

Manager I (SSM I) position in California State service. Thus, she does not meet the

MQs under pattern I.

Pattern II One year of experience in the California state serviceperforming analytical staff duties of a class with a level ofresponsibility not less than that of Associate GovernmentalProgram Analyst; and

Current employment in a class with a level of responsibility not lessthan that of Staff Services Manager I.

At the time of application, Endsley had never been appointed to a position in

California state service performing analytical staff duties with a level of responsibility not

less than that of an Associate Governmental Program Analyst (AGPA). Specifically,

Endsleys experience as a Legal Analyst would be non-qualifying, because the Legal

Analyst classification performs paralegal duties while under the general supervision of

an attorney. Incumbents in the AGPA classification perform duties such as: 1) program

evaluation and planning; 2) policy analysis and formulation; 3) systems development; 4)

budgeting, planning, management, and personnel analysis; and 5) continually provides

consultative services to management or others. An AGPA may act as a team leader


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coordinating the efforts of various governmental projects or even be given a

representative role for a specific state agency. For comparison purposes, a Senior

Legal Analyst performs the most complex paralegal duties often providing consultative

services to management. Further, a Senior Legal Analyst exercises a high degree of

independence receiving only general direction from an attorney.

Accordingly, in comparing the scope of the two classifications, the Legal Analyst

does not perform duties with the level of responsibility equal to that of an AGPA, and

therefore, Endsley does not have one year of experience in the California State service

performing analytical staff duties of a class with a level of responsibility not less than

that of an AGPA.

Additionally, pattern II also requires that the applicant be currently employed in a

class with a level of responsibility not less than that of a Staff Services Manager I (SSM

I). The FEH Consultant III (Specialist) is approved experience for meeting the MQs for

the SSM II. However, Endsleys experience gained as a FEH Consultant III (Specialist)

is non-qualifying because the experience gained was the result of an unlawful

appointment. Such experience cannot be used to determine 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. (Emphasis added.

See Cal. Code Regs., tit. 2, 9.) Thus, Endsley does not meet the MQs under pattern

II.

Pattern III Two years of experience in the California state serviceperforming analytical staff duties of a class with a level of


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responsibility not less than that of Associate GovernmentalProgram Analyst.

Endsley was appointed as a Legal Analyst, performing paralegal duties. As

discussed previously, Endsleys experience in the Legal Analyst classification is not

equivalent to that of an AGPA and cannot be considered. Further, Endsleys FEH

Consultant III (Specialist) experience occurred as the result of an unlawful appointment

and is therefore non-qualifying. Thus, Endsley does not meet the MQs as asserted in

pattern III.

Pattern IV Experience: Four years of increasingly responsiblemanagement, personnel, fiscal, planning, program evaluation, orrelated analytical experience which shall have included thepreparation of reports and the presentation of recommendations tomanagement beyond the trainee level, at least one year of whichmust have been in a supervisory capacity. (Experience in theCalifornia state service applied toward this requirement mustinclude one year performing the duties of a class with a level ofresponsibility not less than that of Staff Services Manager I.) (Inappraising experience more weight will be given to the breadth ofpertinent experience and the evidence of the candidate's ability to

accept and fulfill increasing responsibilities than to the length of theexperience.); and


As noted above, Endsleys FEH Consultant III (Specialist) experience is non-

qualifying, as it was obtained as a result of an unlawful appointment. Thus, Endsleys

remaining experience as a Paralegal/Legal Analyst, consists of approximately five years

and three months. However, the experience, as noted on her application, does not

reflect a minimum of four years of increasingly responsible management, personnel,

fiscal, planning, or program evaluation experience with at least one year of experience


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in a supervisory capacity. Furthermore, pattern IV has an education requirement in

addition to the experience requirement. As of the date of application, Endsley had not

gained a bachelors degree, nor submitted a letter from the college or university stating

that she has met all the academic requirements for graduation. Thus, Endsley does not

meet the education requirement.

However, pattern IV asserts additional qualifying experience may be substituted

for the required education on a year-for-year basis. Thus, Endsley would need eight

years of applicable experience with at least one of those years in the California State

service performing the duties of a class with a level of responsibility, not less than that

of SSM I. Based upon the evidence submitted, Endsley does not have eight years of

applicable experience, nor has she been appointed to a classification with a level of

responsibility equal to or exceeding that of a SSM I in California State service. Thus,

Endsley does not meet the MQs under pattern IV.

FEH Admini strator I classification

The MQs for the FEH Administ rator I classification is as follows:

Pattern I One year of experience in the California state serviceperforming the duties of a Fair Employment and HousingConsultant III (Supervisor) or a Fair Employment and HousingConsultant III (Specialist); or two years of experience in theCalifornia state service performing the duties of a Fair Employmentand Housing Consultant II.

Endsleys experience as a FEH Consultant III (Specialist) is non-qualifying

experience because, as discussed above, Board rule prohibits use of the experience

gained from an unlawful appointment for the purpose of obtaining qualifying experience.

Pattern II Experience: Five years of the above-describedexperience. [Experience in the California state service applied


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toward this requirement must include at least one year in a classwith a level of responsibility equal to a Fair Employment andHousing Consultant III (Specialist).]; and


As stated above, Endsley lacks the required experience of FEH Consultant III

(Specialist), thus she does not meet the experience required under pattern II.

Furthermore, Ms. Endsley has failed to produce evidence of a bachelors degree, nor

submitted a letter from the college or university stating that the applicant has met all the

academic requirements for graduation, thus Endsley failed to establish she met the

requirements under pattern II.

However, under pattern II additional qualifying experience may be substituted for

the required education on a year-for-year basis. Endsley would need to have a

minimum of eight years of applicable experience, including at least one year in a class

with a level of responsibility equal to a FEH Consultant III (Specialist), to qualify. At the

time of application, Endsley had not gained eight years of applicable experience, thus,

she did not meet the MQs for the FEH Administrator I classification.

In summary, the SHOs review of Endsleys MQs for the classifications of FEH

Consultant III (Specialist) and FEH Administrator I has disclosed that Endsley did not

meet the minimum education and experience qualifications that each employee must

possess in order to compete in a promotional examination, as set forth in California

Code of Regulations, title 2, section 237. Therefore, said appointments are unlawful.

/ / /

/ / /


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Remedies for an Unlawful Appointment

The Board may void an appointment of an employee when it has been

determined the appointment was made unlawfully. (See Gov. Code 19257.5.) If the

appointment was made and accepted in good faith, the Board may only void the

appointment within one year from the date of appointment. (Cal. Code of Regs., tit 2,

266.) However, if it is determined that either the hiring authority or the employee acted

in bad faith, the Board may void the appointment within five years of the date of

appointment. (Cal. Code of Regs., tit 2, 266.) California Code of Regulations, title 2,

section 8 (hereinafter Section 8) provides the criteria for determining whether an

appointment was made and accepted in good faith.

To evaluate the actions of the hiring authority under Section 8, good faith is

presumed to exist in the following circumstances:

(a) In order to make an appointment in good faith, an appointingpower 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 determinehow the law should be applied; and(3) Assure that positions are properly classified; and(4) Assure that appointees have appropriate civil serviceappointment eligibility; and(5) Intend to employ the appointee in the class, tenure andlocation to which appointed under the conditions reflected bythe appointment document; and

(6) Make a reasonable and serious attempt to provide therelevant reference materials, training, and supervisionnecessary to avoid any mistakes of law or fact to thepersons responsible for the pertinent personnel transactions;and(7) Act in a manner that does not improperly diminish therights and privileges of other persons affected by theappointment, including other eligibles.


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At the hearing, Ferrell indicated that the departments selection files and Official

Personnel File of Endsley lacked supporting documentation, as the files were missing

many key documents that would support a determination that Endsley met the MQs for

the positions in question. Ferrell testified that based upon information currently

available, Endsley did not meet the MQs for appointment to the FEH Consultant III

(Specialist) classification utilizing the Special Investigator list.

The testimony of Robin Icelow, former DFEH APA was that she did not recall

processing Endsleys MQs evaluation for FEH Consultant III (Specialist) position even

though she confirmed sending a January 17, 2012, email to Tim Muscat, former DFEH

Enforcement Division Chief, confirming Endsleys eligibility. Icelow further testified that

she kept no internal records, i.e., notes or memorandum as to how her evaluation was

performed or as to what documents were reviewed in the process of Endsleys MQs.

After reviewing documents presented by the DFEH at the hearing, specifically

Endsleys 678, and the Duty Statements for Legal Analyst and FEH Consultant II,

Icelow further testified that Endsley did not appear to meet the MQs for FEH Consultant

III (Specialist).

DFEH APA Thomas testified that shortly after Endsley was appointed to the

classification of FEH Consultant III (Specialist), there was a contentious discussion

within the DFEH personnel shop regarding Endsleys qualifications. Thomas indicated

that Gilmer, Icelow and herself, discussed the matter at length, and Thomas insisted

that the appointment was unlawful, because Endsley had provided insufficient

supporting documentation. Specifically, Endsley had provided no collegiate transcripts,

or more detailed explanation of her experience. Thomas was insistent that the Board


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needed to be contacted and an investigation needed to be conducted. Thomas stated

that Gilmer rebuffed her adamant request for Board involvement, claiming Monica Rea

was aware that all she had to do was wait a whole year, once Angelina was in the

position for a year and it would be forgiven.

With regard to the FEH Administrator I appointment, Thomas indicated that she

had approved Endsleys MQs for that position only because her challenge to the FEH

Consultant III (Specialist) classification was rebuffed, and that taking her concerns to

Rea (next in Thomas chain of command), would be futile.

Therefore, in considering the documentary evidence and the testimony, the SHO

finds DFEH acted in other than good faith in the appointment of Endsley to both the

FEH Consultant III (Specialist) and FEH Administrator I. Specifically, DFEHs conduct

demonstrates a failure to:

Intend to observe the spirit and intent of the law; Make a reasonable and serious attempt to determine how the law

should be applied; Assure that appointees have appropriate civil service appointment

eligibility; Make a reasonable and serious attempt to provide the relevant

reference materials, training, and supervision necessary to avoidany mistakes of law or fact to the persons responsible for thepertinent personnel transactions; and

Act in a manner that does not improperly diminish the rights andprivileges of other persons affected by the appointment, includingother eligibles.

Because of these failures, the Board is authorized to direct adverse action

be taken against individuals who directed others to violate or whose own actions

constitute violations of these provisions.

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To evaluate whether the actions of the employee constitute good faith under

Section 8, the employee must

(1) Intend to serve in the class to which the employee isbeing appointed under the tenure, location and otherelements of the appointment as reflected by the appointmentdocument; and(2) Provide the appointing power with complete, factual, andtruthful information necessary for a proper appointment; and(3) Make a reasonable attempt to seek correction of anyaspects of the appointment that the employee knows areillegal.

The evidence establishes that Endsley provided all information requested of her

by the hiring authority. Endsley also reasonably explained how she interpreted her

experience and education as qualifying for the MQs of all positions involved. No

evidence suggests that Endsley made any effort to misrepresent her experience and

education. Accordingly, Endsley acted in good faith in accepting the positions of FEH

Consultant III (Specialist) and FEH Administrator I.

LEGAL CONCLUSION

It is an established principle that administrative agencies have only those powers

conferred to them either, expressly or by implication, or by constitution or statute. An

administrative agency, therefore, must act within the powers conferred to it by law and

may not validly act in excess of such powers. In accordance with these principles, it

has been held in this State, in matters pertaining to civil service and in other contexts,

that when an administrative agency acts in excess of, or in violation, of the powers

conferred upon it, its action, thus, taken is void. (Ferdig v. State Personnel Board ,

(1969), 71 Cal. 2d 96, 103-104.)

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Accordingly, the errors made in the evaluation and interpretation of Endsleys

MQs, as set forth above, resulted in Endsley being illegally appointed to the

classifications of FEH Consultant III (Specialist) and FEH Administrator I. Thus, DFEH

acted in excess of or in violation of the powers conferred upon it, when it appointed

Endsley to classifications wherein Endsley did not meet the minimum education and

experience qualifications for the positions sought. Therefore, the actions the DFEH has

taken must be voided.

RECOMMENDATION

Based upon the foregoing, the SHO recommends that the Board direct the

Executive Officer to void the appointments of Endsley to the classifications of FEH

Consultant III (Specialist) and FEH Administrator I. Because there was no finding of

bad faith in Endsleys acceptance of the positions, there is no basis to request

reimbursement of compensation received while appointed to these positions.

Finally, the SHO recommends that this matter be referred for further investigation

into the actions of DFEH management in overseeing the appointment of Endsley to FEH

Consultant III (Specialist) and FEH Administrator I to determine whether adverse action

should be taken.

_______________________

Richard E. Silva, Jr.Staff Hearing Officer

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SPB Board Resolution re: DFEH and Angelina Endsley

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