In the Matter of the Civil Service Appointments Rendered by the CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT 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 faith under the civil service statutes and board regulations. For purposes of administering the civil service statutes, including Government Code Sections 19257 and 19257.5 and board Regulations, good faith is presumed to exist in the following circumstances: (a) In order to make an appointment in good faith, an appointing power and all officers or employees to whom an appointing power delegates appointment authority must:

In the Matter of the Civil Service Appointments Rendered by the CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING For ANGELINA ENDSLEY Case No. 13-1216N Page 2 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 be applied; 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 which appointed under the conditions reflected by the appointment document; and (6) Make a reasonable and serious attempt to provide the relevant reference materials, training, and supervision necessary to avoid any mistakes of law or fact to the persons responsible for the pertinent personnel transactions; and (7) Act in a manner that does not improperly diminish the rights and privileges of other persons affected by the appointment, including other eligibles. Any officer or employee who violates any of the foregoing provisions of this regulation, or any other officer or employee in a position of authority who directs any officer or employee to violate any of these provisions, shall be subject to civil or criminal sanctions as provided in Government Code Sections 19680, 19681, 19682, 19683, 19764, as well as adverse action as provided in Government Code Sections 19572, 19583.5, or 19682.

In the Matter of the Civil Service Appointments Rendered by the CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING For ANGELINA ENDSLEY Case No. 13-1216N Page 3 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.

In the Matter of the Civil Service Appointments Rendered by the CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING For ANGELINA ENDSLEY Case No. 13-1216N Page 4 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. AMBROSE SUZANNE M. AMBROSE Executive Officer

Angelina Endsley Case No. 13-1216N Page 1 of 21 In the Matter of the Civil Service Appointments Rendered by the CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT 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. ///

Angelina Endsley Case No. 13-1216N Page 2 of 21 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. 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 DFEH submitted a response on behalf of both

reasonably interpreted the MQs for the aforementioned classifications by analyzing and comparing her experience and education. She did not consult with her Human

Angelina Endsley Case No. 13-1216N Page 3 of 21 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

Angelina Endsley Case No. 13-1216N Page 4 of 21 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 Appropriate 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

Angelina Endsley Case No. 13-1216N Page 5 of 21 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 accredited college/university with either a: ///

Angelina Endsley Case No. 13-1216N Page 6 of 21 (1) Major in criminal justice, law enforcement, criminology, administration of justice, business, or public administration. (Students in their senior year in college will be admitted to the examination, but they must produce evidence of graduation or its equivalent before they can be considered eligible for appointment.); or (2) Minor in criminal justice, law enforcement, criminology, administration of justice, business, or public administration with evidence that the following courses or their equivalent have been completed: introduction to criminal justice, introduction to criminal law, basic investigation, evidence, criminal procedure, philosophy of law, accounting, finance, real estate; and an internship in criminal justice, law enforcement, criminology, administration of justice, business, or public administration. (Students in their senior year in college will be admitted to the examination, but they must produce evidence of graduation or its equivalent before they can be considered eligible for appointment.) Pattern II Education: Equivalent to completion of two years of college with a major in criminal justice, law enforcement, criminology, police science, administration of justice, business, or public administration. (Additional qualifying experience may be substituted for the required education on a year-for-year basis.); and Experience: Two years of experience as a police detective or as an investigator performing comparable investigative work in a public or private agency or in the armed services. At the hearing on this matter, Endsley acknowledged that she did not meet the qualifications under pattern I or pattern II, but believed she qualified under pattern III, based upon a reasonable interpretation of the specifications (specs) set forth in the class specs. Therefore, there is no dispute that Endsley does not meet the MQs under pattern I or II and the analysis will focus on Pattern III. Pattern III Education: Equivalent to completion of two years of college with a major in criminal justice, law enforcement, criminology, police science, administration of justice, business, or

Angelina Endsley Case No. 13-1216N Page 7 of 21 public administration. (Additional qualifying experience may be substituted for the required education on a year-for-year basis.) Applicants who are being considered for Special Investigator positions must possess the educational equivalent to completion of the twelfth grade; and Experience: One year of experience in the California state service performing duties at a level comparable to those of either an Investigator Assistant, Special Investigator Assistant, or in an investigation assignment in the class of Management Services Technician, Range B. (Applicants who have completed six months of service in the class of either Investigator Assistant, Special Investigator Assistant, or Management Services Technician, Range B, will be admitted into the examination, but they must satisfactorily complete 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

Angelina Endsley Case No. 13-1216N Page 8 of 21 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 nonqualifying 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. ///

Angelina Endsley Case No. 13-1216N Page 9 of 21 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 service performing the duties of a Fair Employment and Housing Consultant 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-described experience. (Experience in the California state service applied toward this requirement must include at least one year in a class with a level of responsibility equal to a Fair Employment and Housing Consultant II.); and Education: Equivalent to graduation from college. (Additional qualifying experience may be substituted for the required education on a year-for-year basis.)
1

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

Angelina Endsley Case No. 13-1216N Page 10 of 21 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

Angelina Endsley Case No. 13-1216N Page 11 of 21 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. under pattern II.

Thus, Endsley did not meet the MQs requirement

FEH Administrator I Appointment Appropriate 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 by the appointing power, if the examination utilized is a consortium examination in which the appointing authority is a participating department.

Angelina Endsley Case No. 13-1216N Page 12 of 21 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 service performing 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 service performing analytical staff duties of a class with a level of responsibility not less than that of Associate Governmental Program Analyst; and Current employment in a class with a level of responsibility not less than 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

Angelina Endsley Case No. 13-1216N Page 13 of 21 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 service performing analytical staff duties of a class with a level of

Angelina Endsley Case No. 13-1216N Page 14 of 21 responsibility not less than that of Associate Governmental Program 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 responsible management, personnel, fiscal, planning, program evaluation, or related analytical experience which shall have included the preparation of reports and the presentation of recommendations to management beyond the trainee level, at least one year of which must have been in a supervisory capacity. (Experience in the California state service applied toward this requirement must include one year performing the duties of a class with a level of responsibility not less than that of Staff Services Manager I.) (In appraising experience more weight will be given to the breadth of pertinent experience and the evidence of the candidate's ability to accept and fulfill increasing responsibilities than to the length of the experience.); and Education: Equivalent to graduation from college. (Additional qualifying experience may be substituted for the required education on a year-for-year basis.) As noted above, Endsleys FEH Consultant III (Specialist) experience is nonqualifying, 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

Angelina Endsley Case No. 13-1216N Page 15 of 21 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 Administrator I classification The MQs for the FEH Administrator I classification is as follows: Pattern I One year of experience in the California state service performing the duties of a Fair Employment and Housing Consultant III (Supervisor) or a Fair Employment and Housing Consultant III (Specialist); or two years of experience in the California state service performing the duties of a Fair Employment and 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-described experience. [Experience in the California state service applied

Angelina Endsley Case No. 13-1216N Page 16 of 21 toward this requirement must include at least one year in a class with a level of responsibility equal to a Fair Employment and Housing Consultant III (Specialist).]; and Education: Equivalent to graduation from college. (Additional qualifying experience may be substituted for the required education on a year-for-year basis.) 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. /// ///

Angelina Endsley Case No. 13-1216N Page 17 of 21 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 appointing power 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 determine how the law should be applied; 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 which appointed under the conditions reflected by the appointment document; and (6) Make a reasonable and serious attempt to provide the relevant reference materials, training, and supervision necessary to avoid any mistakes of law or fact to the persons responsible for the pertinent personnel transactions; and (7) Act in a manner that does not improperly diminish the rights and privileges of other persons affected by the appointment, including other eligibles.

Angelina Endsley Case No. 13-1216N Page 18 of 21 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

Angelina Endsley Case No. 13-1216N Page 19 of 21 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 avoid any mistakes of law or fact to the persons responsible for the pertinent personnel transactions; and Act in a manner that does not improperly diminish the rights and privileges of other persons affected by the appointment, including other 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. ///

Angelina Endsley Case No. 13-1216N Page 20 of 21 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 is being appointed under the tenure, location and other elements of the appointment as reflected by the appointment document; and (2) Provide the appointing power with complete, factual, and truthful information necessary for a proper appointment; and (3) Make a reasonable attempt to seek correction of any aspects of the appointment that the employee knows are illegal. 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.) ///

Angelina Endsley Case No. 13-1216N Page 21 of 21 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