Illegal Appointment

It is the policy of the Department of General Services (DGS) that all staff appointments be legal and compliant with all applicable civil service laws and rules (discussed in this section). 

An appointment occurs when an individual is offered an appointment to a position, accepts the offer, and begins performing the duties of the position.

An alternate range change within a deep class is considered an appointment, the same as an appointment to a class and must be treated as such. Government Code (GC) section 19050 requires that all civil service appointments be made in accordance with the Civil Service Act and the State Personnel Board (SPB) rule. This ensures that employees are treated equitably and consistently and it also serves the public’s interest in preventing patronage and similar abuse of the State’s employment system.

However, occasionally, appointments are made that are inconsistent with applicable laws and rules or after an individual has accepted an offer of appointment, something is discovered or occurs prior to the agreed upon start date that makes the appointment impractical. Such appointments may result from mistakes or misinformation, or they may be deliberate attempts to manipulate the system, or:

• The Governor imposes a hiring freeze
• A person with a mandatory right of return to the classification of appointment must be reinstated and there are no other vacancies in the classification
• The person who made the offer failed to obtain required approvals from the DGS Equal Employment Opportunity (EEO), Budget, and/or Human Resources (OHR) offices
• Information about the offeree is discovered that indicated that s/he is unsuited for the position
• It is discovered that the offeree does not have the required civil service eligibility (e.g., offeree does not possess the minimum qualifications, offeree’s classification from which transfer is to occur is not at substantially the same level as the class of intended appointment, offeree is not reachable on the employment list)
• It is discovered that while the offeree possesses the required civil service eligibility, a process required by law to be completed prior to appointment has not been completed (e.g., psychological screening or background investigation for a peace officer position)

When it is discovered that an individual who has been appointed might not have had eligibility for appointment to the classification, or particular “deep” class alternate range at the time of the appointment, or one of the “impractical” reasons stated above, SPB must be informed of the situation. If DGS determines it was an illegal appointment or impractical appointment, the employee must NOT be sent home, or returned to his/her former position, or refused appointment after having accepted the position. Only SPB can void an appointment, and that can occur only after the individual has been given due process.

Whenever an illegal appointment occurs, appropriate corrective action must be taken. Leaving an illegal appointment in effect can have the following detrimental effects:

• Such appointments circumvent and/or contradict the laws and rules that are intended to govern civil service rights and transactions.
• They cause inconsistencies that jeopardize SPB’s overall objective of evenly and equitably administering the civil service system.
• They often give employees unfair and unearned advantages over others whose appointments have been processed in the normal manner.

Whether DGS should refuse to appoint someone after that person has accepted an offer of a position will depend on the circumstances. The following five points should be taken into consideration prior to arriving at a decision:

1. If, after being offered a position, an individual agrees to come to work under the conditions specified in the offer and DGS refuses to put the person to work, a court could conclude, based on contract law, that DGS must either:
   • Place the person in the position; or
   • As a minimum and depending on the circumstances, compensate the person for any financial loss incurred as a result of that person’s reliance on the offer.
2. If, prior to the person’s entering upon the duties, it is found that the person does not have the required civil service eligibility, DGS is not obligated or permitted by law to appoint the person but, as noted above, might be liable for any financial loss incurred as a result of the person’s reliance on the offer. In response to an appeal from an individual or a request from DGS, in cases of extreme hardship or equity, the five-member SPB has authorized an appointment when an individual does not possess all of the required civil service eligibility.
3. If, prior to the person’s entering upon the duties, it is found that the position is not lawfully authorized (e.g. not in the budget), the State might not be obligated or permitted by law to appoint the person. Whether a position is lawfully authorized requires an examination of the applicable statutory or regulatory constraints. If it is clear from these constraints that an appointment would be in violation of law, DGS is not permitted by law to appoint the person but again might be liable for any financial loss incurred as a result of the person’s reliance on the offer.
4. It may be appropriate for DGS to refuse to appoint an offeree prior to the person entering upon the duties when such a refusal is clearly in the best interest of the State. For example:
   • The person is not acceptable, based on substantial newly acquired information.
   • The person who made the offer was not authorized to do so and appropriate approvals are denied for significant reasons.
   • Required hiring clearances, such as from OHR, were not obtained and are withheld for significant reason.

   However, refusal to appoint someone for such reasons could be overturned in court. For example, in the case of an offer by an unauthorized person, a court could consider whether the offeree reasonably could believe that the offer was legitimate. If, based on such reasonable belief, the offeree acted in reliance on the offer to his/her detriment, a court, as a remedy, could order the appointment or, as a minimum, order compensation for the financial loss.
5. Every effort should be made by DGS to provide a remedy, up to and including an appointment that mitigates the severity of any hardship that might have been incurred as a result of the person’s reliance on the offer. However, as noted above, if it has been determined that the person does not have the required civil service eligibility, appointment of the person can be accomplished only through authorization by the five-member State Personnel Board. Such authorization will be provided only in cases of extreme hardship.